Untitled document
Local Government Amendment (Councillor Conduct and Other Matters) Act 2008
No. 67 of 2008
table of provisions
Section Page
Part 1—Preliminary
1Purpose
2Commencement
3Principal Act
Part 2—Councillor Allowances
4New sections 73A and 73B inserted
73AReview of allowance categories
73BReview of allowance limits and ranges
5Councillor and Mayoral Allowances
6General provisions relating to allowances
7Repeal of sections 74B(3) and 74B(4)
8Advisory panel
9Section 75 substituted
75Reimbursement of expenses of Councillors
75AReimbursement of expenses of members of council committees
75BCouncillor reimbursement policy
75CResources and facilities for Councillors
Part 3—Councillor Conduct Amendments
10Definitions
11Disqualifications
12Section 30 substituted
30Relief from disqualification
13Term of office
14Section 76B substituted
76BPrimary principle of Councillor conduct
76BAGeneral Councillor conduct principles
15Code of Conduct
16New sections 76D and 76E inserted
76DMisuse of position
76EImproper direction and improper influence
17Confidential information
18New Division 1B inserted in Part 4
Division 1B—Councillor Conduct Panels
81ADefinitions
81BApplication to Councillor Conduct Panel
81CDismissal of application
81DReferral to VCAT
81EApplication on grounds of gross misconduct
81FParties to a VCAT proceeding
81GNotice of a Councillor Conduct Panel
81HProcedures
81IConduct of a Councillor Conduct Panel
81JDeterminations by a Councillor Conduct Panel
81KFindings and orders by VCAT
81LReferral by VCAT to Councillor Conduct Panel
81MNotice of determinations and tabling of decisions
81NSuspension of matters during election period
81OBreach of Act by Councillor
81PInvestigation by inspector of municipal administration
81QReview by VCAT
81RTime period for making application to VCAT
81SCouncillor Conduct Panels
19New Schedule 5 inserted
SCHEDULE 5—Provisions with respect to establishing Councillor Conduct Panels
1Definitions
2Councillor Conduct Panels
3Establishment of CCP Lists by MAV
4Notifying Councils of intended appointees
5Establishing a Councillor Conduct Panel—duties
of CCP Registrar6Related applications
7Other duties of CCP Registrar
8Duties of the Chief Executive Officer in relation to Councillor Conduct Panels
9Councillor Conduct Panel formation
10Conflicts of interest, ineligibility or unavailability
of Councillor Conduct Panel members11Establishment of Councillor Conduct Panel
impossible based on existing lists12Dissolution of Councillor Conduct Panel
13Immunity
Part 4—Conflict of Interest
20New section 76AA inserted
76AADefinitions
21Sections 77A, 77B and 78 substituted
77ADirect and indirect interests
77BDirect interest
78Indirect interest by close association
78AIndirect interest that is an indirect financial interest
78BIndirect interest because of conflicting duties
78CIndirect interest because of receipt of an applicable
gift78DIndirect interest as a consequence of becoming an interested party
22Section 79 substituted
79Disclosure of conflict of interest
79AConflict of interest defence
79BConflicting personal interest
79CCertain situations where Councillor taken to not
have a conflict of interest79DPerson may make submission despite conflict of
interest
23Exemption by Minister
24New sections 80A, 80B and 80C inserted
80ARequirements to be observed by an assembly of Councillors
80BMembers of Council staff to disclose conflicts of
interest in respect of delegated functions80CPersons to disclose interests to Council when
providing advice
25Register of interests
Part 5—Miscellaneous Amendments
26Amendment of section 28—Qualification to be a Councillor
27Amendment of section 46—Powers of a municipal electoral tribunal
28Amendment of section 52—Unlawful nomination
29Amendment of section 63—Oath of office
30New sections 66A and 66B inserted—Suspension and leave of absences of Councillors
66ASuspension of Councillor
66BLeave of absence of Councillor
31Amendment of section 69A—Multiple extraordinary
vacancies32Amendment of section 71—Election of Mayor
33Amendment of section 72—Term of office
34New section 82A inserted—Council must maintain an
internet website82ACouncil must maintain an Internet website
35Amendment of section 84—Special meetings
36Amendment of section 85—Call of the Council
37Amendment of section 86—Special committees of the
Council38Sections 87 and 88 substituted—Special committee meetings
87Special committee meetings
39Amendment of section 89—Meetings to be open to the
public40Amendment of section 90—Voting
41Amendment of section 91—Conduct of meetings
42Amendment of section 93A—Conduct of Council during
election period43Amendment of section 94—The Chief Executive Officer
44Amendment of section 94A—Functions of the Chief
Executive Officer45Amendment of section 95—Conduct principles
46New section 95AA inserted—Codes of conduct for Council
staff95AACode of conduct for Council staff
47Amendment of section 95A—Employment of senior officers
to be regulated by contract48Amendment of section 98—Delegation
49Amendment of section 125—Council Plan
50Amendment of section 130—Adoption of budget or revised budget
51Amendment of section 131—Annual report
52Amendment of section 132—Performance statement
53Amendment of section 138—Quarterly statements
54Amendment of section 139—Audit committee
55Amendment of section 154—What land is rateable?
56Amendment of section 163—Special rate and special charge
57Amendment of section 163B—Objection process relating to certain special rates and charges
58Amendment of section 166— Variation of special rate or
special charge59Amendment of section 167—Payment of rates and charges
60Amendment of section 169—Rebates and concessions
61Amendment of section 183—Review of differential rating
by Victorian Civil and Administrative Tribunal62Amendment of section 185—Application to Victorian Civil
and Administrative Tribunal63Amendment of section 185AA—Application for declaration
64Amendment of section 185AB—Matters Tribunal must take
into account65Amendment of section 185B—Minister may give directions concerning rates and charges
66Amendment of section 186—Restriction on power to enter into contracts
67New section 186A inserted—Procurement policy
186AProcurement policy
68Amendment of section 189—Restriction on power to sell
land69Amendment of section 193—Entrepreneurial powers
70Amendment of section 196—Regional libraries
71Repeal of section 197E—Offence to fail to comply with provisions
72Amendment of section 213—Access of Commissioner to
places and documents73Amendment of section 219—Suspension of Councillors
74Section 222 substituted—Right of inspection
222Right of inspection
75Amendment of section 223—Right to make submission
76Amendment of section 223A—Appointment of inspectors of municipal administration
77 Amendment of section 223B—Powers of inspectors of municipal administration
78Amendment of section 228—Indemnity provision
79Amendment of section 232—Proceedings
80Amendment of section 236—Power of delegation
81Amendment of section 237—Council records and information
82Amendment of section 240A—Imposition of surcharge
83Repeal of section 242A—Supreme Court—limitation of jurisdiction
84Amendment of Schedule 2
Part 6—Amendments to the City of Melbourne Act 2001
85Application of certain provisions of the Local Government
Act 198986Deputy Lord Mayor
87Term of office of Lord Mayor and Deputy Lord Mayor
88Filling of Vacancies
89Appointment of acting Deputy Lord Mayor
90New section 26A inserted
26AAllowance reviews by Minister
91General provisions concerning allowances
92New section 27AA inserted
27AACouncillor taken to not have conflict of interest for purposes Division 1A of Part 4 of the Local
Government Act 1989
Part 7—Amendments to the Victorian Civil and Administrative Tribunal Act 1998
93Amendments to the Victorian Civil and Administrative Tribunal Act 1998
Part 13B—Local Government Act 1989
46EConstitution of Tribunal
46FCosts
Part 8—Repeal of Amending Act
94Repeal of amending Act
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Endnotes
Local Government Amendment (Councillor Conduct and Other Matters) Act 2008
No. 67 of 2008
[Assented to 18 November 2008]
The Parliament of Victoria enacts:
Part 1—Preliminary
1Purpose
The purpose of this Act is to—
(a)amend the Local Government Act 1989 to—
(i)further provide for standards of conduct for Councillors and provide for arrangements to deal with Councillor misconduct;
(ii)redefine what constitutes a conflict of interest and specify further duties with respect to the disclosure of a conflict of interest;
(iii)alter the provisions relating to the payment of Councillor allowances;
(iv)provide for increased transparency in the decision-making processes of Councils;
(v)enhance the operation of the Act;
(b)amend the City of Melbourne Act 2001 to—
(i)alter provisions in relation to the payment of Councillor allowances;
(ii)provide arrangements for the offices of Lord Mayor and Deputy Lord Mayor in the event that either is suspended or required to take leave of absence;
(iii)clarify the operation of the Act;
(c)make consequential amendments to the Victorian Civil and Administrative Tribunal Act 1998.
2Commencement
(1)This Act, except Part 4, comes into operation on the day after the day on which it receives the Royal Assent.
(2)Subject to subsection (3), Part 4 comes into operation on a day or days to be proclaimed.
(3)If a provision referred to in subsection (2) does not come into operation before 1 January 2009, it comes into operation on that day.
3Principal Act
In this Act, the Local Government Act 1989 is called the Principal Act.
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Part 2—Councillor Allowances
4New sections 73A and 73B inserted
After section 73 of the Principal Act insert—
"73A Review of allowance categories
(1)The Minister must, at least once every year, review the allowance category for each Council.
(2)In conducting a review under subsection (1), the Minister must have regard to—
(a)changes in the number of residents in each municipal area; and
(b)variations in the total recurrent revenue of each Council after adjusting for inflation.
(3)If a review conducted by the Minister under this section results in a finding that one or more Councils in the categories of Councils require alteration, the Minister must specify by notice published in the Government Gazette, the Councils that are in each category of Councils following the review.
(4)A notice published under subsection (3), to the extent that it varies the amounts, limits, ranges or categories specified in an Order in Council made under section 74B, varies the Order from the date specified in the notice as the date on which the variation has effect.
(5)In subsection (2), total recurrent revenue means the total revenue of the Council reported in the financial statements of the Council for the previous financial year after adjusting for any items that are extraordinary, abnormal or non-recurring.
73BReview of allowance limits and ranges
(1)In this section, adjustment factor means the percentage increase to be applied to Councillor and Mayoral allowance limits and ranges.
(2)The Minister must, at least once every year, review the limits and ranges of Councillor and Mayoral allowances.
(3)The Minister must have regard to movements in the levels of remuneration of executives within the meaning of the Public Administration Act 2004 when reviewing the limits and ranges of Councillor and Mayoral allowances under subsection (2).
(4)If a review conducted by the Minister under this section results in a finding that Councillor and Mayoral allowances should be adjusted, the Minister must specify by notice published in the Government Gazette—
(a)an adjustment factor; and
(b)the new limits and ranges of allowances for each category of Councils, adjusted in accordance with the adjustment factor.
(5)If a notice is published in the Government Gazette under subsection (4), a Council must increase Councillor and Mayoral allowances in accordance with the adjustment factor specified in the notice.".
5Councillor and Mayoral Allowances
(1)After section 74(1) of the Principal Act insert—
"(1A)A Council may review and determine the level of the Councillor allowance and the Mayoral allowance after an Order in Council is made by the Governor in Council under section 74B that varies the limits or ranges of allowances payable by the Council.
(1B)A Council may review and determine the level of the Councillor allowance and the Mayoral allowance after—
(a)the Minister, by notice published in the Government Gazette under section 73A or 74C, has changed the category of the Council; or
(b)an Order in Council under section 74B has been made changing the category of the Council.".
(2)In section 74(2) of the Principal Act, for "subsection (1) are payable during the next 4 financial years" substitute "subsections (1), (1A) or (1B) are payable from the date of the resolution of the Council determining the levels of allowances".
(3)For section 74(3) of the Principal Act substitute—
"(3)A Council can only vary the allowances determined under subsection (1) if—
(a)the Council has conducted a review under subsection (1), (1A) or (1B); or
(b)the Council is required to increase allowances in accordance with a notice published under section 73B specifying an adjustment factor; or
(c)the Council is required to increase allowances by an Order in Council under section 74B.".
6General provisions relating to allowances
(1)After section 74A(1) of the Principal Act insert—
"(1A)If a Councillor is appointed to act as Mayor under section 73(3) for a continuous period exceeding 50 days, the acting Mayor may be paid a Mayoral allowance instead of a Councillor allowance for the period that he or she is acting as Mayor.".
(2)For section 74A(2) of the Principal Act substitute—
"(2)Subject to subsection (3), a Council must pay a Councillor allowance or Mayoral allowance as specified in the most recent of—
(a)the relevant Order in Council made under section 74B; or
(b)a Minister's notice published under section 73A, 73B or 74C.
(2A)In addition to complying with the relevant Order in Council or Minister's notice referred to in subsection (2), a Council must pay a Councillor allowance or Mayoral allowance in accordance with any review and determination made by a Council under section 74.".
(3)In sections 74A(3) and 74A(4) of the Principal Act omit "under section 74".
(4)After section 74A(4) of the Principal Act insert—
"(5)A person elected to be a Councillor is entitled to receive a Councillor allowance from the date the person takes the oath of office under section 63.
(6)A Councillor elected to be Mayor is entitled to receive a Mayoral allowance from the date he or she is elected under section 71.".
7Repeal of sections 74B(3) and 74B(4)
Sections 74B(3) and 74B(4) of the Principal Act are repealed.
8Advisory panel
(1)For section 74C(2) of the Principal Act substitute—
"(2)A Council may make a submission to the local government panel requesting the panel to consider a change of category for the Council.
(2A)The Minister may request a local government panel to review the category of Council for a particular Council with respect to allowances.".
(2)For section 74C(3) of the Principal Act substitute—
"(3)If after considering a submission under subsection (2) or a request made by the Minister under subsection (2A), the local government panel finds that the category of Council for the Council should be changed or set at a particular level with respect to allowances, the local government panel may recommend to the Minister that the change be made pursuant to the findings of the local government panel.".
(3)In section 74C(4) of the Principal Act, after "(3)" insert "by notice in the Government Gazette".
9Section 75 substituted
For section 75 of the Principal Act substitute—
"75 Reimbursement of expenses of Councillors
(1)A Council must reimburse a Councillor for expenses if the Councillor—
(a)applies in writing to the Council for reimbursement of expenses; and
(b)establishes in the application to Council that the expenses were reasonable bona fide Councillor out-of-pocket expenses incurred while performing duties as a Councillor.
(2)In this section, duties as a Councillor means duties performed by a Councillor that are necessary or appropriate for the purposes of achieving the objectives of a Council having regard to any relevant Act, regulations, Ministerial guidelines or Council policies.
75AReimbursement of expenses of members of council committees
A Council may reimburse members of council committees for necessary out-of-pocket expenses incurred while performing duties as a committee member.
75BCouncillor reimbursement policy
(1)A Council must adopt and maintain a policy in relation to the reimbursement of expenses for Councillors and members of Council committees.
(2)A policy adopted by Council under this section must be consistent with—
(a)the prescribed types of Councillor out-of-pocket expenses that must be reimbursed if the expenses are reasonable and bona fide; and
(b)the prescribed procedures to be followed by Councils in relation to the reimbursement of out-of-pocket expenses.
(3)A Council must keep a copy of the policy adopted and maintained under this section available for inspection at the office of the Council.
75CResources and facilities for Councillors
A Council must make available for the Mayor and the Councillors the minimum resources and facilities prescribed for the purposes of this section.".
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Part 3—Councillor Conduct Amendments
10Definitions
Insert the following definitions in section 3(1) of the Principal Act—
"Councillor Code of Conduct means the code of conduct developed by a Council under section 76C;
Councillor conduct principles means the principles specified in sections 76B and 76BA;
Department means the Department of Planning and Community Development;
Secretary means Secretary to the Department;".
11Disqualifications
(1)After section 29(1)(f) of the Principal Act insert—
"(fa)he or she has been disqualified under section 81K after a finding of gross misconduct and the period of disqualification specified in the order made by VCAT under that section has not expired; or".
(2)In section 29(2)(a) of the Principal Act for "76B(3), 77 or 79" substitute "76D, 79, 80A or 80B".
(3)After section 29(3) of the Principal Act insert—
"(4)If a Councillor is charged with an offence referred to in subsection (2), the Secretary may apply to VCAT for an order requiring the Councillor to take leave of absence from the office of Councillor until the proceedings in respect of the charge are finally determined.
(5)Before VCAT makes an order under subsection (4), VCAT must have regard to the nature and circumstances of the charge.
(6)An order made under subsection (4) ceases to have effect if—
(a)the relevant charge is withdrawn; or
(b)the Councillor is not convicted of the offence.
(7)If—
(a)a person is not capable of becoming a Councillor or cannot continue to be a Councillor because he or she has been convicted of an offence referred to in subsection (2); and
(b)that person lodges an appeal in respect of the conviction—
he or she is taken to be on leave of absence from the office of Councillor and their allowance must be withheld until the appeal is determined or withdrawn.
(8)If the conviction referred to in subsection (7) is quashed following the appeal—
(a)the leave of absence the Councillor was required to take ceases; and
(b)the Councillor is entitled to receive any allowances that were withheld during the leave period.".
12Section 30 substituted
For section 30 of the Principal Act substitute—
"30 Relief from disqualification
(1)Any person convicted of an offence referred to in section 29(2), and disqualified, may apply to VCAT for relief from that disqualification after a period of 4 years from the date of the conviction.
(2)VCAT may grant a person who has made an application under subsection (1) relief from disqualification if VCAT is satisfied that the person is a fit and proper person to seek office as a Councillor having regard to—
(a)the nature of the offence that gave rise to the disqualification; and
(b)the conduct of the person since the disqualification; and
(c)any other relevant considerations.".
13Term of office
After section 72(1)(c) of the Principal Act insert—
"(ca)if he or she becomes ineligible to hold office under section 81K; or".
14Section 76B substituted
For section 76B of the Principal Act substitute—
"76B Primary principle of Councillor conduct
It is a primary principle of Councillor conduct that, in performing the role of a Councillor, a Councillor must—
(a)act with integrity; and
(b)impartially exercise his or her responsibilities in the interests of the local community; and
(c)not improperly seek to confer an advantage or disadvantage on any person.
76BAGeneral Councillor conduct principles
In addition to acting in accordance with the primary principle of Councillor conduct specified in section 76B, in performing the role of a Councillor, a Councillor must—
(a)avoid conflicts between his or her public duties as a Councillor and his or her personal interests and obligations;
(b)act honestly and avoid statements (whether oral or in writing) or actions that will or are likely to mislead or deceive a person;
(c)treat all persons with respect and have due regard to the opinions, beliefs, rights and responsibilities of other Councillors, council officers and other persons;
(d)exercise reasonable care and diligence and submit himself or herself to the lawful scrutiny that is appropriate to his or her office;
(e)endeavour to ensure that public resources are used prudently and solely in the public interest;
(f)act lawfully and in accordance with the trust placed in him or her as an elected representative;
(g)support and promote these principles by leadership and example and act in a way that secures and preserves public confidence in the office of Councillor.".
15Code of Conduct
(1)In the heading to section 76C of the Principal Act before "Code" insert "Councillor".
(2)For section 76C(1) of the Principal Act substitute—
"(1)A Council must develop and approve a Councillor Code of Conduct for the Council within 12 months after the commencement of section 15 of the Local Government Amendment (Councillor Conduct and Other Matters) Act 2008.".
(3)In section 76C(2) of the Principal Act—
(a)after "the" (where first occurring) insert "Councillor";
(b)for "6 months" substitute "12 months".
(4)In section 76C(3) of the Principal Act—
(a)after "A" insert "Councillor";
(b)for paragraph (a), substitute—
"(a)must include the Councillor conduct principles;"
(c)in paragraph (b), for "must" substitute "may";
(d)paragraph (c) is repealed.
(5)Section 76C(4) of the Principal Act is repealed.
(6)In section 76C(5) of the Principal Act after "A" insert "Councillor".
(7)After section 76C(5) of the Principal Act insert—
"(5A)A Councillor Code of Conduct is inoperative to the extent that it is inconsistent with any Act or regulation.".
(8)In section 76C(6) of the Principal Act after "current" insert "Councillor".
(9)After section 76C(6) of the Principal Act insert—
"(7)On and from the commencement of section 15 of the Local Government Amendment (Councillor Conduct and Other Matters) Act 2008, a Councillor Code of Conduct is taken to include the Councillor conduct principles.".
16New sections 76D and 76E inserted
After section 76C of the Principal Act insert—
"76D Misuse of position
(1)A person who is, or has been, a Councillor or member of a special committee must not misuse his or her position—
(a)to gain or attempt to gain, directly or indirectly, an advantage for themselves or for any other person; or
(b)to cause, or attempt to cause, detriment to the Council or another person.
Penalty:100 penalty units.
(2)For the purposes of this section, circumstances involving the misuse of a position by a person who is, or has been, a Councillor or member of a special committee include—
(a)making improper use of information acquired as a result of the position he or she held or holds; or
(b)disclosing information that is confidential information within the meaning of section 77(2); or
(c)directing or improperly influencing, or seeking to direct or improperly influence, a member of Council staff in contravention of section 76E; or
(d)exercising or performing, or purporting to exercise or perform, a power, duty or function that he or she is not authorised to exercise or perform; or
(e)using public funds or resources in a manner that is improper or unauthorised.
(3)This section—
(a)has effect in addition to, and not in derogation from, any Act or law relating to the criminal or civil liability of Councillors or members of special committees; and
(b)does not prevent the institution of any criminal or civil proceedings in respect of that liability.
76EImproper direction and improper influence
(1)A Councillor must not improperly direct or improperly influence, or seek to improperly direct or improperly influence, a member of Council staff in the exercise of any power or in the performance of any duty or function by the member.
(2)A Councillor must not direct, or seek to direct, a member of Council staff—
(a)in the exercise of a delegated power, or the performance of a delegated duty or function of the Council; or
(b)in the exercise of a power or the performance of a duty or function exercised or performed by the member as an authorised officer under this Act or any other Act; or
(c)in the exercise of a power or the performance of a duty or function the member exercises or performs in an office or position the member holds under another Act; or
(d)in relation to advice provided to the Council or a special committee, including advice in a report to the Council or special committee.
(3)This section does not apply to a decision of the Council or a special committee that is made within the powers, duties or functions conferred under this or any other Act.".
17Confidential information
The penalty at the foot of section 77(1) of the Principal Act is repealed.
18New Division 1B inserted in Part 4
After section 81 of the Principal Act insert—
"Division 1B—Councillor Conduct Panels
81ADefinitions
In this Division—
CCP Registrar means a member of Council staff who is not the Chief Executive Officer and who is appointed in writing by the Chief Executive Officer to be the Councillor Conduct Panel Registrar for the Council under clause 8(1) of Schedule 5;
Councillor Conduct Panel means a panel of 2 people established by the MAV under Schedule 5;
gross misconduct by a Councillor means behaviour that—
(a)contravenes—
(i)the Councillor conduct principles; and
(ii)a section of this Act, the contravention of which has a penalty of at least 10 penalty units; or
(b)demonstrates that a Councillor is not of good character or is otherwise not a fit and proper person to hold the office of Councillor;
MAV means the body corporate known as the Municipal Association of Victoria established under the Municipal Association Act 1907;
misconduct by a Councillor means—
(a)conduct by a Councillor that is in breach of the Councillor Code of Conduct; or
(b)the failure of a Councillor to comply with a direction of a Councillor Conduct Panel where the Panel has not made a finding of misconduct against the Councillor;
serious misconduct by a Councillor means—
(a)the failure of a Councillor to comply with a direction of a Councillor Conduct Panel following a finding of misconduct made by the Councillor Conduct Panel in respect of the Councillor; or
(b)the failure of a Councillor to cease conduct that contravenes the Councillor Code of Conduct after a Councillor Conduct Panel or VCAT has made a finding of misconduct or serious misconduct against the Councillor in respect of that behaviour; or
(c)conduct by a Councillor that contravenes the Councillor conduct principles after the Councillor has had a previous finding of misconduct, serious misconduct or gross misconduct made against them by a Councillor Conduct Panel or VCAT in the last 4 years; or
(d)conduct by a Councillor that contravenes—
(i)the Councillor conduct principles; and
(ii)section 76E or 77.
81BApplication to Councillor Conduct Panel
(1)An application for a Councillor Conduct Panel to make a finding of misconduct against a Councillor, or to authorise an application to VCAT for a finding of serious misconduct, may be made by—
(a)the Council, following a resolution of the Council to make an application to a Councillor Conduct Panel under this section in respect of a Councillor's conduct; or
(b)a Councillor; or
(c)a group of Councillors.
(2)An application made by a Councillor or group of Councillors must be lodged with the CCP Registrar.
(3)An application made under this section must—
(a)specify the ground or grounds for the application;
(b)set out the circumstances, actions or inactions of the Councillor who is the subject of the application that are alleged as constituting misconduct or serious misconduct;
(c)if the Councillor Code of Conduct provides processes for resolving internal disputes between Councillors—
(i)the reasons why the matter cannot be resolved by those processes; or
(ii)if those processes were used, the reasons why the matter was not resolved through those processes;
(d)if the application is made by the Council or a group of Councillors, state the name and address of the Councillor whom the Council has, or group have, appointed as representative of the Council or group.
81CDismissal of application
A Councillor Conduct Panel may dismiss an application made by a Councillor or group of Councillors under section 81B at any time if—
(a)the application is frivolous, vexatious, misconceived or lacking in substance; or
(b)insufficient reasons have been given to explain why the matter cannot be resolved by internal dispute resolution processes.
81DReferral to VCAT
(1)A Councillor who is the subject of an application made under section 81B (the respondent) may apply to the Councillor Conduct Panel for referral of the matter to VCAT at any time before the Panel determines the matter.
(2)A Councillor Conduct Panel must refer an application made under section 81B to VCAT for determination if the respondent makes an application under subsection (1).
(3)A Councillor Conduct Panel may refer an application made under section 81B to VCAT for determination if the Panel considers that it cannot make a determination because a person fails to attend a Panel hearing or to provide information that the Panel has requested.
(4)If an application made under section 81B has been referred to VCAT for determination, a Councillor Conduct Panel must—
(a)in writing, advise the applicant, the respondent, the relevant Council and the Minister of the referral;
(b)provide VCAT with a copy of the application made under section 81B and any other documents the Panel considers relevant to the application.
(5)The applicant in the application made under section 81B is taken to be the applicant in the application referred to VCAT under this section.
81EApplication on grounds of gross misconduct
(1)VCAT may hear an application made by the Secretary that alleges gross misconduct by a Councillor.
(2)An application made under subsection (1) may only be made by the Secretary.
81FParties to a VCAT proceeding
(1)The applicant and respondent are parties to a proceeding referred to, or commenced in, VCAT under section 81D, 81E or 81J(1)(b).
(2)In addition to any other parties, the following may request to be joined as parties to a VCAT proceeding referred to, or commenced, under section 81D or 81J(1)(b)—
(a)the Secretary;
(b)the relevant Council.
81GNotice of a Councillor Conduct Panel
(1)A Councillor Conduct Panel must—
(a)fix a time and, subject to subsection (2), a place that is within the municipal district of the relevant Council, for the hearing to be conducted; and
(b)serve by post a notice of the time and place of the hearing on the applicant, respondent and Council.
(2)For the purposes of subsection (1)(a), a Councillor Conduct Panel may fix a place for the hearing that is not within the municipal district of the relevant Council if the Panel considers it necessary or appropriate in the circumstances.
81HProcedures
(1)A Councillor Conduct Panel may—
(a)request a person to attend a hearing and answer questions;
(b)request information from the applicant, the respondent or the Council, including confidential information held by the Council.
(2)Members of a Councillor Conduct Panel that are provided with confidential information must ensure that the information is not released to the public.
81IConduct of a Councillor Conduct Panel
(1)A Councillor Conduct Panel must not make a determination under section 81J until it has conducted a hearing.
(2)The following applies to a hearing of a Councillor Conduct Panel—
(a)the proceedings must be conducted with as little formality and technicality as the requirements of this Act and the proper consideration of the matter permit;
(b)there is no right to representation at the hearing except if the Panel considers that a party requires representation to ensure that the hearing is conducted fairly;
(c)the proceedings must not be open to the public;
(d)if the hearing is based on an application made by Council or group of Councillors, the appointed representative must represent the Council or group of Councillors at the hearing;
(e)the Panel is not bound by rules of evidence but may inform itself in any way it thinks fit;
(f)the Panel is bound by the rules of natural justice;
(g)the procedure of a Panel is otherwise in its discretion.
(3)At the hearing of an application, the Councillor Conduct Panel must provide the respondent with an opportunity to be heard.
81JDeterminations by a Councillor Conduct Panel
(1)After a Councillor Conduct Panel has conducted a hearing, the Panel may—
(a)make a finding of misconduct against a Councillor; or
(b)authorise an applicant to make an application to VCAT if the Panel considers that there are reasonable grounds on which VCAT may make a finding of serious misconduct against a Councillor; or
(c)whether or not a finding of misconduct against a Councillor has been made, make a finding that remedial action is required; or
(d)in addition to any findings made under paragraphs (a) to (c), direct that the Council amend its Councillor Code of Conduct in a particular way or to address a particular issue; or
(e)dismiss the application.
(2)If a Councillor Conduct Panel makes a finding of misconduct against a Councillor, the Panel may—
(a)reprimand that Councillor; or
(b)direct that Councillor to make an apology in a form or manner determined by the Panel; or
(c)direct that Councillor to take leave of absence for a period specified by the Panel not exceeding 2 months, commencing on a date specified by the Panel.
(3)If a Councillor Conduct Panel makes a finding that remedial action is required under subsection (1)(c), the Panel may—
(a)direct the Councillor who is the subject of the application to attend mediation; or
(b)direct the Councillor who is the subject of the application to attend training; or
(c)direct the Councillor who is the subject of the application to attend counselling.
(4)For the purposes of subsection (3), a Councillor Conduct Panel may set reasonable conditions in respect of how or when remedial action is to be undertaken.
(5)Any necessary expenses incurred by Councillors in attending mediation, training or counselling must be paid by the Council.
(6)If a Councillor Conduct Panel directs the Council to amend its Councillor Code of Conduct, the Council must comply with that direction within 3 months of the direction being made.
(7)This section does not apply to a Councillor Conduct Panel formed for the purposes of hearing a referral from VCAT under section 81L.
81KFindings and orders by VCAT
(1)In the case of an application referred to, or commenced in, VCAT under sections 81D, 81E or 81J(1)(b), VCAT may make any of the following findings—
(a)that a Councillor has engaged in conduct that constitutes misconduct;
(b)that a Councillor has engaged in conduct that constitutes serious misconduct;
(c)that a Councillor has engaged in conduct that constitutes gross misconduct.
(2)VCAT may, in relation to a finding of misconduct under subsection (1)(a)—
(a)reprimand that Councillor; or
(b)make any or all of the following orders—
(i)that the Councillor must make an apology in a form and manner determined by VCAT;
(ii)that the Councillor must take leave of absence for a period specified by VCAT not exceeding 2 months and commencing on a date specified by VCAT.
(3)VCAT may make any or all of the following orders in relation to a finding of serious misconduct under subsection (1)(b)—
(a)that the Councillor is suspended from office for a period specified by VCAT not exceeding 6 months;
(b)that the Councillor is ineligible to hold the office of Mayor for a period specified by VCAT not exceeding 4 years;
(c)that the Councillor is ineligible to chair a special committee of the Council for a period specified by VCAT not exceeding 4 years.
(4)VCAT may make any or all of the following orders in relation to a finding of gross misconduct under subsection (1)(c)—
(a)that the Councillor is disqualified for a period specified by VCAT not exceeding 4 years and his or her office is vacated;
(b)that the Councillor is suspended from office for a period specified by VCAT not exceeding 6 months;
(c)that the Councillor is ineligible to hold the office of Mayor for a period specified by VCAT not exceeding 4 years.
(5)If VCAT makes a finding of serious misconduct or gross misconduct by a Councillor, the Councillor becomes ineligible to hold the office of Mayor for the remainder of the Council's term, unless VCAT otherwise orders.
81LReferral by VCAT to Councillor Conduct Panel
(1)VCAT may refer a matter to a Councillor Conduct Panel, whether or not VCAT has made a finding under section 81K, if VCAT considers that—
(a)remedial action is required; or
(b)the Councillor Code of Conduct requires amendment.
(2)A Councillor Conduct Panel formed for the purposes of this section may—
(a)direct the Councillor who is the subject of the referral to attend mediation; or
(b)direct the Councillor who is the subject of the referral to attend training; or
(c)direct the Councillor who is the subject of the referral to attend counselling;
(d)direct that the Council amend its Councillor Code of Conduct in a particular way or to address a particular issue.
(3)For the purposes of subsections (2)(a), (2)(b) and (2)(c), a Councillor Conduct Panel may set reasonable conditions in respect of how or when remedial action is to be undertaken.
(4)Any necessary expenses incurred by Councillors in attending mediation, training or counselling must be paid by the Council.
(5)If a Councillor Conduct Panel directs the Council to amend its Councillor Code of Conduct, the Council must comply with that direction within 3 months of the direction being made.
81MNotice of determinations and tabling of decisions
(1)After a Councillor Conduct Panel has made a determination under section 81J, the Panel must give a copy of the decision to—
(a)the Council; and
(b)the parties to the matter; and
(c)the Minister.
(2)A copy of the decision given to the Council under subsection (1)(a) must be tabled at the next ordinary meeting of the Council and recorded in the minutes for that meeting.
(3)A Councillor Conduct Panel must give a written statement of reasons for the decision, within 28 days of making a determination, to—
(a)the Council; and
(b)the parties to the matter; and
(c)the Minister.
(4)A statement of reasons provided in accordance with subsection (3) is taken to be a statement of reasons provided in accordance with section 46(1) of the Victorian Civil and Administrative Tribunal Act 1998.
(5)A record of the decision of VCAT, made in respect of an application or review under this Division in relation to a Councillor of a Council, must be tabled at the next ordinary meeting of the Council and recorded in the minutes of that meeting.
81NSuspension of matters during election period
(1)Applications and proceedings made and conducted under this Division must be suspended during the election period for a general election.
(2)If an application is made to a Councillor Conduct Panel or VCAT for a finding of misconduct or serious misconduct against a person who is a Councillor before a general election, and that person is not returned to the office of Councillor as a result of the general election, the application made against that person who was a Councillor before the election lapses.
(3)If an application is made to a Councillor Conduct Panel or VCAT for a finding of misconduct or serious misconduct against a person who is a Councillor before a general election, and that person is returned to the office of Councillor as a result of the general election, the application made against the Councillor may resume, whether or not the applicants were returned as a result of the general election.
(4)An application under section 81E against a person who is a Councillor before a general election must resume after the general election is held whether or not the person is returned to the office of Councillor.
81OBreach of Act by Councillor
(1)This section applies if it appears to a Councillor Conduct Panel that a Councillor has committed an offence under this Act.
(2)A Councillor Conduct Panel must by notice in writing notify the Secretary that a Councillor appears to have committed an offence under this Act as soon as the Panel becomes aware of the apparent offence.
81PInvestigation by inspector of municipal administration
(1)The Secretary may at any time (whether or not the Secretary has received a notice under section 81O), by notice, require a Councillor Conduct Panel to suspend or stop the Panel's consideration of a matter.
(2)If the Secretary has given notice to a Councillor Conduct Panel under subsection (1), the Secretary must refer the matter that was before the Panel to an inspector of municipal administration for investigation under section 223B.
(3)The inspector of municipal administration must commence an investigation into a matter referred to him or her within 28 days of the referral under subsection (2).
81QReview by VCAT
(1)In this section, party means the applicant or respondent to an application made to, and matter heard by, a Councillor Conduct Panel, under this Division.
(2)Subject to subsection (3), a party who is affected by the decision made by a Councillor Conduct Panel under this Division may apply to VCAT for review of the decision.
(3)A person is not entitled to apply for review of a decision made by a Councillor Conduct Panel to—
(a)dismiss the application because it is frivolous, vexatious, misconceived or lacking in substance; or
(b)dismiss the application because insufficient reasons have been given to explain why the matter cannot be resolved by internal dispute processes; or
(c)authorise or not authorise an applicant to make an application to VCAT on the grounds of serious misconduct by a Councillor.
81RTime period for making application to VCAT
An application for review under section 81Q must be made within 28 days of the Councillor Conduct Panel giving a statement of reasons under section 81M.
81SCouncillor Conduct Panels
Schedule 5 has effect with respect to the establishment of Councillor Conduct Panels.".
19New Schedule 5 inserted
After Schedule 4 to the Principal Act insert—
"SCHEDULE 5
Provisions with respect to establishing Councillor Conduct Panels
1Definitions
In this Schedule—
CCP Registrar has the same meaning as it has in section 81A;
List A means the list of persons established and maintained by the MAV under clause 3(2);
List A member means a person appointed to be a member of List A by the MAV under clause 3(2);
List B means the list of persons established and maintained by the MAV under clause 3(3);
List B member means a person appointed to be a member of List B by the MAV under clause 3(3);
local legal practitioner has the same meaning as in the Legal Profession Act 2004;
local practising certificate has the same meaning as in the Legal Profession Act 2004;
MAV has the same meaning as it has in section 81A.
2Councillor Conduct Panels
(1)Unless subclause (2) applies, a Councillor Conduct Panel is to consist of 2 persons selected and appointed by the MAV in accordance with clause 3.
(2)If it is not possible to establish a Councillor Conduct Panel using persons selected and appointed by the MAV, one or both positions on the panel must be filled by a person approved by the Minister under clause 11.
3Establishment of CCP Lists by MAV
(1)The MAV must establish and maintain 2 lists, to be known as List A and List B, of eligible persons from which members of a Councillor Conduct Panel must be selected.
(2)For the purposes of establishing List A, the MAV must select at least 5 persons who are local legal practitioners and have held a local practising certificate for at least 5 years and appoint them as List A members.
(3)For the purposes of establishing List B, the MAV must select at least 7 persons with relevant experience in municipal governance and appoint them as List B members.
(4)A List A member or List B member must not be a person—
(a)who has been convicted of an offence specified in section 29(2); or
(b)who is an undischarged bankrupt; or
(c)who has property that is subject to control under the law relating to bankruptcy; or
(d)who is, or has been, in the last 3 years, an employee, contractor or member of the board of management of the MAV or any other body that represents the interests of councils, councillors or council staff.
(5)The MAV must appoint persons to List A and List B within 6 months after the commencement of section 19 of the Local Government Amendment (Councillor Conduct and Other Matters) Act 2008.
(6)Subject to subclause (7), the MAV may determine how often the Lists are updated.
(7)A person appointed to List A or List B may not be removed from that list for a period of 2 years unless the person—
(a)resigns from the position; or
(b)is removed from the list under clause 4(5).
4Notifying Councils of intended appointees
(1)The MAV must, once the MAV has selected or updated potential List A members and List B members, notify all Councils in writing, at least 30 days before the selected persons are appointed to the appropriate list, of—
(a)the names of the people on List A and List B; and
(b)the order of the names on List A and List B; and
(c)the process used by the MAV in selecting the persons for List A and List B; and
(d)the schedule of fees set for Councillor Conduct Members.
(2)The MAV must publish List A and List B on the Internet website maintained by the MAV and ensure that the order of names in each list appears in the same order of which Councils were advised under subclause (1).
(3)If the MAV considers that a person on List A or List B is no longer a fit and proper person to be on that list, the MAV may apply to the Minister for the Minister's consent to remove the person from the list.
(4)In determining whether to consent to the removal of a person from a list, the Minister must have regard to the principles of natural justice and whether the person is a fit and proper person to sit on a Councillor Conduct Panel.
(5)If the Minister consents to the removal of a person from a list, the MAV must remove that person from the list.
5Establishing a Councillor Conduct Panel—duties of CCP Registrar
(1)A CCP Registrar must, without undue delay, take the steps set out in subclause (2)—
(a)on receipt of an application lodged by a Councillor or group of Councillors; or
(b)following a resolution of a Council to apply for a Councillor Conduct Panel; or
(c)following a referral made by VCAT under section 81L(1).
(2)Unless clause 6 applies, a CCP Registrar must notify the MAV that a Councillor Conduct Panel is required and ensure that—
(a)if subclause (1)(a) or (1)(b) applies, a copy of the application is provided to all parties; or
(b)if subclause (1)(c) applies, a copy of the basis of the referral by VCAT is provided to all parties.
(3)The CCP Registrar must provide the members of the Councillor Conduct Panel with copies of the application or the basis for the referral by VCAT as soon as possible after the MAV has advised the CCP Registrar of who those members are.
(4)The CCP Registrar must not provide a copy of the application or referral or any other document relevant to a matter to any person other than in accordance with this Act unless the Councillor Conduct Panel instructs the CCP Registrar to do so.
6Related applications
(1)If a CCP Registrar receives an application (a subsequent application) that appears to be related to another application for which a Councillor Conduct Panel has already been formed, the CCP Registrar must forward the subsequent application directly to the existing Councillor Conduct Panel.
(2)On receipt of the subsequent application, the Councillor Conduct Panel must decide, based on the subject matter of the subsequent application, either—
(a)to join the subsequent application to the application the Panel was formed to hear; or
(b)to return the subsequent application to the CCP Registrar without hearing the matter.
(3)If the Councillor Conduct Panel returns the subsequent application to the CCP Registrar under subclause (2)(b), the CCP Registrar must take the steps set out in clause 5(2)(a).
(4)In subclause (1), receives an application is taken to include a resolution of the Council to make an application.
7Other duties of CCP Registrar
A CCP Registrar must—
(a)attend Councillor Conduct Panel hearings; and
(b)keep a written record of Councillor Conduct Panel hearings; and
(c)keep copies of all documents requested by, and given to, a Councillor Conduct Panel; and
(d)ensure that venues and resources are made available for hearings conducted by, and deliberations of, a Councillor Conduct Panel; and
(e)at the conclusion of a Councillor Conduct Panel process, seal the records of the Panel and give those records to the Chief Executive Officer.
8Duties of the Chief Executive Officer in relation to Councillor Conduct Panels
(1)The Chief Executive Officer must appoint, in writing, a member of Council staff to be the CCP Registrar.
(2)The Chief Executive Officer must—
(a)ensure the members of a Councillor Conduct Panel are paid in accordance with the schedule of fees set by the MAV; and
(b)subject to subclause (3), ensure the sealed records of the Councillor Conduct Panel are stored safely and made accessible only in accordance with subclause (3) for a period of 7 years after the conclusion of the matter.
(3)If VCAT, a court or an Inspector of Municipal Administration requests the sealed records referred to in subclause (2), the Chief Executive Officer must comply with that request.
9Councillor Conduct Panel formation
(1)The MAV must, on receipt of a notification from a CCP Registrar that a Panel is required, select a person from List A and a person from List B to form a Councillor Conduct Panel in accordance with this clause without undue delay.
(2)The MAV must select the person at the beginning of each list on the first occasion that a Councillor Conduct Panel is requested and thereafter must select the next person (after the person who has most recently been selected) on each list to form a Panel.
(3)If a Councillor Conduct Panel member excuses himself or herself under clause 10, the MAV must select the next person that appears on the list after the excused Panel member.
(4)The person selected from List A is the chairperson for the Councillor Conduct Panel.
(5)The MAV must notify the CCP Registrar of the members selected for the Councillor Conduct Panel as soon as possible after the selection has been made.
10Conflicts of interest, ineligibility or unavailability of Councillor Conduct Panel members
(1)A person selected to be a member of a Councillor Conduct Panel must excuse himself or herself if—
(a)the Panel member has been a Councillor, employee, consultant or contractor of the Council in respect of which the matter before the Panel relates at any time in the preceding 5 years; or
(b)the Panel member has a close personal or professional relationship with any Councillor of the Council in respect of which the matter before the Panel relates; or
(c)the Panel member has a conflict of interest of any kind; or
(d)the Panel member has become ineligible to be on a List under clause 3(4).
(2)A Councillor Conduct Panel member may excuse himself or herself if the Panel member is unavailable at the time the Panel must hear and deliberate the matter.
(3)A Councillor Conduct Panel member who excuses himself or herself under this clause must provide their reasons for doing so in writing to the MAV.
11Establishment of Councillor Conduct Panel impossible based on existing lists
(1)If it is not possible to establish a Councillor Conduct Panel using the persons appointed to List A and List B, the MAV may recommend to the Minister a person or persons the MAV considers to be suitable to be a member or members of a Councillor Conduct Panel.
(2)The Minister may approve the person or persons recommended under subclause (1) to be a member or members of a Councillor Conduct Panel.
12Dissolution of Councillor Conduct Panel
(1)A Councillor Conduct Panel is dissolved when any of the following occurs—
(a)the Panel dismisses an application under section 81C;
(b)the Panel gives notice of the Panel's decision and the Panel has given a statement of reasons under section 81M to the persons specified in section 81M(3);
(c)the matter has been referred to VCAT;
(d)the consideration of the matter by the Panel has been stopped by the Secretary under section 81P.
(2)If a Councillor Conduct Panel has been dissolved under subclause (1) and the matter that the Panel had been considering requires further consideration at a subsequent time by a Panel, a new Panel must be established to consider the matter.
13Immunity
(1)A member of a Councillor Conduct Panel under this Act is not personally liable for anything done or omitted to be done in good faith—
(a)in the exercise of a power or the discharge of a duty under this Act; or
(b)in the reasonable belief that the act or omission was in the exercise of a power or the discharge of a duty under this Act.
(2)Any liability resulting from an act or omission that would but for subsection (1) attach to a member of a Councillor Conduct Panel attaches to the Council.".
__________________".
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Part 4—Conflict of Interest
20New section 76AA inserted
After the heading to Division 1A of Part 4 of the Principal Act insert—
"76AA Definitions
In this Division—
assembly of Councillors (however titled) means a planned or scheduled meeting of at least 3 Councillors and one member of Council staff which considers matters that are intended or likely to be—
(a)the subject of a decision of the Council; or
(b)subject to the exercise of a function, duty or power of the Council that has been delegated to a person or committee—
but does not include a meeting of the Council, a special committee of the Council, a club, association, peak body, political party or other organisation;
matter means a matter with which a Council, special committee or a member of council staff is concerned and that will require—
(a)a power to be exercised, or a duty or function to be performed, or a decision to be made, by the Council or a special committee in respect of the matter;
(b)a power to be exercised, or a duty or function to be performed, or a decision to be made by a member of council staff in respect of the matter;
relevant person means a person who is a—
(a)Councillor; or
(b)member of a special committee; or
(c)member of Council staff.".
21Sections 77A, 77B and 78 substituted
For sections 77A, 77B and 78 of the Principal Act substitute—
"77A Direct and indirect interests
(1)A relevant person has a conflict of interest in respect of a matter if the relevant person has a direct interest or indirect interest in the matter.
(2)A relevant person has a direct interest in a matter if the relevant person has an interest of a kind described in section 77B.
(3)A relevant person has an indirect interest in a matter if the relevant person has—
(a)a close association as specified in section 78; or
(b)an indirect financial interest as specified in section 78A; or
(c)a conflicting duty as specified in section 78B; or
(d)received an applicable gift as specified in section 78C; or
(e)become an interested party as specified in section 78D.
(4)A relevant person does not have a conflict of interest in a matter if the direct interest or indirect interest of the relevant person is so remote or insignificant that the direct interest or indirect interest could not reasonably be regarded as capable of influencing any actions or decisions of the relevant person in relation to the matter.
(5)A relevant person does not have a conflict of interest in a matter if the direct interest or indirect interest the relevant person holds is one held as a resident, ratepayer or voter and the interest—
(a)is held in common with other residents, ratepayers or voters; and
(b)does not exceed the interests held by other residents, ratepayers or voters.
77BDirect interest
(1)A person has a direct interest in a matter if there is a reasonable likelihood that the benefits, obligations, opportunities or circumstances of the person would be directly altered if the matter is decided in a particular way.
(2)Without limiting subsection (1), a person has a direct interest in a matter if—
(a)there is a reasonable likelihood that the person will receive a direct benefit or loss that can be measured in financial terms if the matter is decided in a particular way;
(b)there is a reasonable likelihood that the residential amenity of the person will be directly affected if the matter is decided in a particular way.
78Indirect interest by close association
(1)In this section—
daughter means a biological daughter, step-daughter, adopted daughter, or female child for whom the person has custodial responsibilities;
direct relative means the spouse, domestic partner, son, daughter, mother, father, brother or sister of the person;
domestic partner of a person means—
(a)a person who is in a registered relationship with the person; or
(b)an adult person to whom the person is not married but with whom the person is in a relationship as a couple where one or each of them provides personal or financial commitment and support of a domestic nature for the material benefit of the other, irrespective of their genders and whether or not they are living under the same roof, but does not include a person who provides domestic support and personal care to the person—
(i)for fee or reward; or
(ii)on behalf of another person or an organisation (including a government or government agency, a body corporate or a charitable or benevolent organisation);
family member means—
(a)a spouse or domestic partner of the person; or
(b)a son, daughter, mother, father, brother or sister that regularly resides with the person;
relative means—
(a)a direct relative of the person;
(b)a direct relative of a person who is the direct relative of the person;
son means a biological son, step son, adopted son or male child for which the person has custodial responsibilities.
(2)A person has an indirect interest by close association in a matter if—
(a)a family member of the person has a direct interest or an indirect interest in a matter; or
(b)a relative of the person has a direct interest in a matter; or
(c)a member of the person's household has a direct interest in a matter.
(3)For the purposes of the definition of domestic partner in subsection (1)—
(a)registered relationship has the same meaning as in the Relationships Act 2008; and
(b)in determining whether persons who are not in a registered relationship are domestic partners of each other, all the circumstances of their relationship are to be taken into account, including any one or more of the matters referred to in section 35(2) of the Relationships Act 2008 as may be relevant in a particular case; and
(c)a person is not a domestic partner of another person only because they are co-tenants.
78AIndirect interest that is an indirect financial interest
(1)A person has an indirect financial interest in a matter if the person is likely to receive a benefit or incur a loss, measurable in monetary terms, as a consequence of a benefit received or loss incurred by another person who has a direct or indirect interest in the matter.
(2)Without limiting subsection (1), a person has an indirect financial interest that is a conflict of interest if—
(a)the person has a beneficial interest in shares of a company or other body that has a direct interest in the matter, except in the circumstances specified in subsection (3);
(b)the person is owed money from another person and that other person has a direct interest in the matter.
(3)If a person, and family members of the person, hold shares in a company or body that has a direct or indirect interest in a matter with a combined total value that does not exceed $10 000 and the total value of issued shares of the company or body exceeds $10 million, the person's indirect financial interest is not a conflict of interest.
(4)Subsection (2)(b) does not apply if the other person is an authorised deposit-taking institution.
(5)For the purposes of determining the value of shares under this section, the share value is to be taken from—
(a)the close of business on the most recent of 30 June or 31 December; or
(b)if the person has lodged an ordinary return since the most recent of 30 June or 31 December, the close of business on the date the return was submitted.
78BIndirect interest because of conflicting duties
(1)A person has an indirect interest in a matter because of a conflicting duty if the person—
(a)is a manager or a member of a governing body of a company or body that has a direct interest in a matter;
(b)is a partner, consultant, contractor, agent or employee of a person, company or body that has a direct interest in a matter;
(c)is a trustee for a person who has a direct interest in a matter.
(2)A person has an indirect interest in a matter because of a conflicting duty if the person held a position or role specified in subsection (1) and, in that position or role, dealt with the matter.
(3)A person does not have an indirect interest because of a conflicting duty if—
(a)the person is only an employee in the service of the Crown or of a body established by or under any Act for a public purpose and the person has no current or expected responsibilities as that employee in relation to a matter;
(b)the person only holds a position in a not-for-profit organisation for which the person receives no remuneration and the person—
(i)was appointed or nominated to that position by the Council; or
(ii)was appointed to the relevant special committee of the Council to be a representative of the not-for-profit organisation;
(c)the person is only a Councillor who holds a position in the Municipal Association of Victoria or in another body that has the purpose of representing the interests of Councils;
(d)the person only holds a position that has been prescribed for the purposes of this section.
78CIndirect interest because of receipt of an applicable gift
(1)In this section, applicable gift means one or more gifts with a total value of $200 or more, received from a person or persons specified in subsection (2), in the 5 years preceding the decision or the exercise of the power, duty or function.
(2)A person has an indirect interest in a matter if the person has received an applicable gift, directly or indirectly, from—
(a)a person who has a direct interest in the matter; or
(b)a director, contractor, consultant, agent or employee of a person, company or body that the person knows has a direct interest in a matter; or
(c)a person who gives the applicable gift to the person on behalf of a person, company or body that has a direct interest in the matter.
78DIndirect interest as a consequence of becoming an interested party
A person has an indirect interest in a matter if the person has become an interested party in the matter by initiating civil proceedings in relation to the matter or becoming a party to civil proceedings in relation to the matter.
22Section 79 substituted
For section 79 of the Principal Act substitute—
"79 Disclosure of conflict of interest
(1)If a Councillor or member of a special committee has a conflict of interest in a matter which is to be, or is likely to be, considered or discussed at a meeting of the Council or the special committee, the Councillor or member must—
(a)if he or she intends to be present at the meeting, disclose the conflict of interest in accordance with subsection (2);
(b)if he or she does not intend to be present at the meeting, disclose the conflict of interest in accordance with subsection (3).
(2)A Councillor or member of a special committee who has a conflict of interest and is attending the meeting of the Council or special committee must make a full disclosure of that interest—
(a)by either—
(i)advising the Council or special committee at the meeting of the details required under paragraphs (b) and (c) immediately before the matter is considered at the meeting; or
(ii)advising the Chief Executive Officer in writing of the details required under paragraphs (b) and (c) before the meeting; and
(b)classifying the type of interest that has given rise to the conflict as either—
(i)a direct interest; or
(ii)an indirect interest and specifying the particular kind of indirect interest under section 78, 78A, 78B, 78C, or 78D; and
(c)describing the nature of the interest; and
(d)if the Councillor or member advised the Chief Executive Officer of the details under paragraph (a)(ii), the Councillor or member must make a disclosure of the class of interest only to the meeting immediately before the matter is considered at the meeting.
(3)A Councillor or member of a special committee who has a conflict of interest and will not be attending the meeting of Council or special committee must make a full disclosure of that interest to the Chief Executive Officer or Chairperson that—
(a)is in writing; and
(b)classifies the type of interest that has given rise to the conflict as either—
(i)a direct interest; or
(ii)an indirect interest and specifying the particular kind of indirect interest under section 78, 78A, 78B, 78C, or 78D; and
(c)describes the nature of the interest.
(4)If a Chairperson has been given a written disclosure under subsection (3), he or she must give the written disclosure to the Chief Executive Officer.
(5)The Chief Executive Officer must—
(a)keep written disclosures given to him or her under this section in a secure place for 3 years after the date the Councillor or member of a special committee who made the disclosure ceases to be Councillor or member of a committee; and
(b)destroy the written disclosure when the 3 year period referred to in paragraph (a) has expired.
(6)While the matter is being considered or any vote is taken in relation to the matter, the Councillor or member of a special committee must—
(a)leave the room and notify the Mayor or the Chairperson of the special committee that he or she is doing so; and
(b)remain outside the room and any gallery or other area in view or hearing of the room.
(7)The Mayor or the Chairperson of the special committee must cause the Councillor or member of a special committee to be notified that he or she may return to the room after—
(a)consideration of the matter; and
(b)all votes on the matter.
(8)If a Councillor or member of a special committee discloses a conflict of interest, the Chief Executive Officer or the Chairperson must record in the minutes of the meeting—
(a)the declaration of the conflict of interest; and
(b)the classification of the interest that has given rise to the conflict, and if the Councillor or member has disclosed the nature of the interest to the meeting, the nature of the interest.
(9)Unless section 80 applies, a Councillor or member of a special committee who fails to comply with this section is guilty of an offence.
Penalty:100 penalty units.
79AConflict of interest defence
It is a defence to a prosecution under section 79(9), 80A(3), 80B(2) or 80C(2) if the relevant person proves that he or she did not know—
(a)that he or she had a conflict of interest in relation to the matter; or
(b)that a matter in respect of which he or she had a conflict of interest was considered or discussed at the relevant meeting.
79BConflicting personal interest
(1)This section does not apply to a Councillor or member of a special committee who has a conflict of interest in the matter.
(2)If a Councillor or a member of a special committee considers that he or she has a personal interest in relation to a matter that is in conflict with his or her public duty in relation to the matter, the Councillor or member may, immediately before the matter is considered at the relevant meeting, apply to the Council or special committee to be exempted from voting on the matter.
(3)If a Councillor or member of a special committee makes an application under subsection (2), he or she must give reasons in support of the application.
(4)A Council or special committee may consent to an application made under subsection (2) and must not unreasonably withhold consent.
(5)If a Council or special committee consents to an application under subsection (4), sections 79(6), 79(7), 79(8) and 79(9) apply as if the personal interest that is the subject of an application under subsection (2) were a conflict of interest specified under this Act.
79CCertain situations where Councillor taken to not have a conflict of interest
(1)A Councillor is taken to not have a conflict of interest for the purposes of this Division if the matter relates to—
(a)the nomination or appointment by the Council of the Councillor to a position for which the Councillor will not be remunerated;
(b)the election of the Mayor under section 71 or the appointment of an acting Mayor under section 73(3);
(c)a decision in relation to the payment of allowances to the Mayor or Councillors under section 74 or 74C(2);
(d)the adoption of a policy in relation to the reimbursement of expenses under section 75A;
(e)the adoption of a Councillor Code of Conduct under section 76C;
(f)an application to a Councillor Conduct Panel or VCAT under Division 1B;
(g)an application for an exemption under section 80;
(h)the appointment of members and Chairpersons of special committees;
(i)a resolution that has the effect of making the Councillors eligible or ineligible for the superannuation guarantee under taxation legislation.
(2)If a budget or revised budget to be approved by a Council includes funding for a matter in respect of which a Councillor has a conflict of interest the Councillor is taken to not have a conflict of interest for the purposes of approving the budget or revised budget if—
(a)the Council approved the matter and the proposed funding previously; and
(b)the Councillor disclosed the nature of the conflict of interest under this Division when the decision in respect of the funding was originally considered and made.
79DPerson may make submission despite conflict of interest
(1)Subject to subsection (2), a relevant person who has a conflict of interest in a matter and who has made a written submission under section 223 in respect of the matter, may present his or her submission under section 223(1)(b) to the Council or committee of the Council.
(2)The relevant person who has a conflict of interest in a matter must not be at the meeting of the Council or committee of the Council any longer than is required for the person to be heard in support of the person's written submission.".
23Exemption by Minister
(1)For section 80(1) of the Principal Act substitute—
"(1)Despite section 79—
(a)a Council may apply, in writing, to the Minister for an exemption of any Councillor from any or all of the provisions of section 79 if the Council is of the opinion that the transaction of any Council or special committee business would be impeded because of the number of Councillors affected by section 79;
(b)a Chief Executive Officer of a Council may apply, in writing, to the Minister, after receiving written declarations of conflicts of interest from a majority of Councillors, for an exemption of those Councillors from any or all of the provisions of section 79.
(1A)After reviewing an application received from a Council or a Chief Executive Officer, the Minister may require the Council or Chief Executive Officer to provide additional information in respect of the application, including copies of the written declarations of conflicts of interests made by Councillors under section 79.
(1B)In considering an application made by a Council or Chief Executive Officer, the Minister must have regard to—
(a)the extent of the conflicts of interest of the Councillors; and
(b)the public interest.".
(2)For section 80(2) of the Principal Act substitute—
"(2)The Minister may, after considering an application under subsection (1B), exempt in writing a Councillor from any or all of the provisions of section 79 for an unlimited or specified period, subject to any conditions the Minister thinks fit.".
24New sections 80A, 80B and 80C inserted
After section 80 of the Principal Act insert—
"80A Requirements to be observed by an assembly of Councillors
(1)At an assembly of Councillors, the Chief Executive Officer must ensure that a written record is kept of—
(a)the names of all Councillors and members of Council staff attending;
(b)the matters considered;
54Amendment of section 139—Audit committee
After section 139(4) of the Principal Act insert—
"(4A)Sections 76D and 79 apply to members of an audit committee as if they were members of a special committee of the Council.".
55Amendment of section 154—What land is rateable?
For section 154(2)(f)(i) of the Principal Act substitute—
"(i)as a club for or a memorial to persons who performed service or duty within the meaning of section 3(1) of the Veterans Act 2005; or".
56Amendment of section 163—Special rate and special charge
(1)After section 163(2B) of the Principal Act insert—
"(2BA)A Council must not make a declaration under subsection (1) which has been altered from the proposed declaration specified in the public notice if the effect of the alteration is to increase the liability of any person to pay the special rate or special charge to be imposed by the proposed declaration unless—
(a)the alteration is made in response to a submission or objection received by the Council in response to the proposed declaration; and
(b)the increase in the liability of any person to pay the special rate or special charge does not exceed 10%.".
(2)After section 163(8) of the Principal Act insert—
"(9)For the purposes of subsections (1) and (6), expenses does not include any expenses incurred or anticipated to be incurred which relate to any proceedings or anticipated proceedings before VCAT, including an application for review under section 185 or an application for a declaration under section 185AA.".
57Amendment of section 163B—Objection process relating to certain special rates and charges
In section 163B(6) of the Principal Act for "the proposed declaration" substitute "a declaration".
58Amendment of section 166—Variation of special rate or special charge
In section 166(3)(b) of the Principal Act for "a material variation" substitute "an increase equal to or greater than 10%".
59Amendment of section 167—Payment of rates and charges
(1)In section 167(3) of the Principal Act for "14 days after the date of issue of the notice" substitute "28 days after the date of issue of a notice".
(2)For section 167(4) of the Principal Act substitute—
"(4)A person who is liable to pay a special rate or special charge must pay the special rate or special charge—
(a)as a lump sum; or
(b)if the Council has provided an instalment plan and the person has elected to pay the special rate or special charge in accordance with the instalment plan, in accordance with the instalment plan.
(5)If the performance of the function or the exercise of the power in respect of which a special rate or special charge is to be levied relates substantially to capital works, the Council must provide an instalment plan in accordance with subsection (6).
(6)An instalment plan—
(a)must provide for instalments to be paid over a period of at least 4 years;
(b)may include in the amount of an instalment a component for reasonable interest costs the total of which must not exceed the estimated borrowing costs of the Council in respect of the performance of the function or the exercise of the power in respect of which the special rate or special charge is to be levied by more than 1%.".
60Amendment of section 169—Rebates and concessions
In section 169(1C) of the Principal Act after "applies" insert "and subsection (1B)(b) does not apply".
61Amendment of section 183—Review of differential rating by Victorian Civil and Administrative Tribunal
(1)Insert the following heading to section 183 of the Principal Act—
"Review of differential rating by VCAT".
(2)In section 183(1) of the Principal Act, for "the Victorian Civil and Administrative Tribunal" substitute "VCAT".
62Amendment of section 185—Application to Victorian Civil and Administrative Tribunal
(1)Insert the following heading to section 185 of the Principal Act—
"Application to VCAT".
(2)In section 185(1) of the Principal Act, for "the Victorian Civil and Administrative Tribunal" substitute "VCAT".
(3)In section 185(3) of the Principal Act, for "the Tribunal" substitute "VCAT".
(4)In section 185(4) of the Principal Act, for "the Tribunal" substitute "VCAT".
63Amendment of section 185AA—Application for declaration
(1)In section 185AA(1) of the Principal Act, for "the Victorian Civil and Administrative Tribunal" substitute "VCAT".
(2)In section 185AA(2) of the Principal Act, for "the Tribunal" substitute "VCAT".
(3)In section 185AA(3) of the Principal Act—
(a)for "The Tribunal's" substitute "VCAT's";
(b)for "the Tribunal" substitute "VCAT".
64Amendment of section 185AB—Matters Tribunal must take into account
(1)Insert the following heading to section 185AB of the Principal Act—
"Matters VCAT must take into account".
(2)In section 185AB of the Principal Act, for "the Tribunal" substitute "VCAT".
65Amendment of section 185B—Minister may give directions concerning rates and charges
(1)For section 185B(4) of the Principal Act substitute—
"(4)An Order does not have effect in respect of a financial year unless it is published in the Government Gazette at least 1 month before the start of that financial year.".
(2)Section 185B(9) of the Principal Act is repealed.
66Amendment of section 186—Restriction on power to enter into contracts
After section 186(5) of the Principal Act insert—
"(5A)This section does not apply in respect of a contract if—
(a)the contract is a novated contract; and
(b)the original contract was entered into in accordance with this section; and
(c)the Council has undertaken a due diligence in respect the new party to the contract.".
67New section 186A inserted—Procurement policy
After section 186 of the Principal Act insert—
"186A Procurement policy
(1)A Council must prepare and approve a procurement policy.
(2)A Council must within 12 months after the commencement of section 67 of the Local Government Amendment (Councillor Conduct and Other Matters) Act 2008 prepare and approve a procurement policy.
(3)A procurement policy must include any matters, practices or procedures which are prescribed for the purposes of this section.
(4)A Council must have regard to guidelines made under subsection (5) in preparing a procurement policy.
(5)The Minister may make guidelines with respect to the form or content of a procurement policy.
(6)Guidelines made under subsection (5) must be published in the Government Gazette.
(7)At least once in each financial year, a Council must review the current procurement policy and may, in accordance with this section, amend the procurement policy.
(8)A copy of the current procurement policy must be available for inspection by the public—
(a)at the Council office; and
(b)on the Council's Internet website.
(9)A Council must comply with its procurement policy.
(10)In this section procurement policy means the principles, processes and procedures that will apply to all purchases of goods, services and works by the Council.".
68Amendment of section 189—Restriction on power to sell land
In section 189(4) of the Principal Act after "discontinued" insert "and which the Council has resolved to sell".
69Amendment of section 193—Entrepreneurial powers
In sections 193(5C)(a) and 193(5C)(b) of the Principal Act after "rates" insert "and charges levied under section 158".
70Amendment of section 196—Regional libraries
After section 196(7) of the Principal Act insert—
"(7A)For the purposes of the application of sections 75 to 81 by subsection (7)(a), a member of the governing body of a regional library, who is a Councillor that was appointed to the governing body by the Council, is taken to not have a conflict of interest in a matter only because he or she is a Councillor.".
71Repeal of section 197E—Offence to fail to comply with provisions
Section 197E of the Principal Act is repealed.
72Amendment of section 213—Access of Commissioner to places and documents
At the foot of section 213(4) of the Principal Act insert—
"Penalty:50 penalty units".
73Amendment of section 219—Suspension of Councillors
(1)For section 219(9) of the Principal Act substitute—
"(9)On the expiry of the Order in Council, the Councillors resume office and the administrator goes out of office unless—
(a)the Minister has fixed the date on which a general election for the Council is to be held and has published notice of that date in the Government Gazette; or
(b)a Bill to dismiss the Council has been introduced into the Parliament.
(9A)The date fixed for the holding of the general election must be a date that occurs within the period of 100 days after the date on which the Order in Council expires.
(9B)If the Bill to dismiss the Council has not become an Act which is in operation within the period of 100 days after the date on which the Order in Council expires, the Councillors resume office and the administrator goes out of office immediately after the end of that period.".
(2)In section 219(10) of the Principal Act for "subsection (9)(b)" substitute "subsection (9)(a)".
74Section 222 substituted—Right of inspection
For section 222 of the Principal Act substitute—
"222 Right of inspection
(1)A Council must ensure that a prescribed document is available for inspection at all reasonable times.
(2)A person is entitled upon payment of the relevant fee to—
(a)inspect a prescribed document; and
(b)make a copy of a prescribed document.
(3)A Council may fix reasonable fees for the inspection and copying of a prescribed document.".
75Amendment of section 223—Right to make submission
(1)For section 223(1) of the Principal Act substitute—
"(1)The following provisions apply if a person is given a right to make a submission to the Council under this section (whether under this or any other Act)—
(a)the Council must publish a public notice—
(i)specifying the matter in respect of which the right to make a submission applies;
(ii)containing the prescribed details in respect of that matter;
(iii)specifying the date by which submissions are to be submitted, being a date which is not less than 28 days after the date on which the public notice is published;
(iv)stating that a person making a submission is entitled to request in the submission that the person wishes to appear in person, or to be represented by a person specified in the submission, at a meeting to be heard in support of the submission;
(b)if a request has been made under paragraph (a)(iv), the Council must—
(i)provide the person with the opportunity to be heard in support of the submission in accordance with the request at a meeting of the Council or of a committee determined by the Council;
(ii)fix the day, time and place of the meeting;
(iii)give reasonable notice of the day, time and place of the meeting to each person who made a request;
(c)if the committee determined under paragraph (b)(i) is not responsible for making the decision in respect of which the submissions have been made, the committee must provide a report on its proceedings, including a summary of hearings, to the Council or the special committee which is responsible for making the decision;
(d)the Council or special committee responsible for making the decision must—
(i)consider all the submissions made under this section and any report made under paragraph (c);
(ii)notify in writing, each person who has made a separate submission, and in the case of a submission made on behalf of a number of persons, one of those persons, of the decision and the reasons for that decision.".
(2)After section 223(3) of the Principal Act insert—
"(4)A member of a committee specified in subsection (1)(b)(i) is subject to section 79 as if that member were a member of a special committee.".
76Amendment of section 223A—Appointment of inspectors of municipal administration
In section 223A(4) of the Principal Act for "Minister" substitute "Secretary".
77Amendment of section 223B—Powers of inspectors of municipal administration
In section 223B(4) of the Principal Act for "subsection (1)" substitute "subsection (2)".
78Amendment of section 228—Indemnity provision
In section 228(1) of the Principal Act omit "to the Department for Victorian Communities" (wherever occurring).
79Amendment of section 232—Proceedings
In section 232(1) of the Principal Act omit "to the Department for Victorian Communities".
80Amendment of section 236—Power of delegation
In section 236(2) of the Principal Act omit "to the Department for Victorian Communities" (wherever occurring).
81Amendment of section 237—Council records and information
In section 237(1) of the Principal Act omit "to the Department for Victorian Communities" (wherever occurring).
82Amendment of section 240A—Imposition of surcharge
(1)For section 240A(1) of the Principal Act substitute—
"(1)This section applies if section 76 or 228 do not apply and the Secretary considers that—
(a)any expenditure has been incurred in contravention of any Act, regulation or local law; or
(b)any deficiency or loss has been incurred by the misconduct of a Councillor or a member of the Council staff; or
(c)any money which should have been brought into account has not been brought into account.".
(2)In section 240A(2) of the Principal Act for "Minister" substitute "Secretary".
(3)In section 240A(4) of the Principal Act for "Minister" substitute "Secretary" (wherever occurring).
(4)In section 240A(5) of the Principal Act—
(a)for "Minister" substitute "Secretary";
(b)for "the Victorian Civil and Administrative Tribunal" substitute "VCAT".
83Repeal of section 242A—Supreme Court—limitation of jurisdiction
Section 242A of the Principal Act is repealed.
84Amendment of Schedule 2
(1)In clause 9(1) of Schedule 2 to the Principal Act for "before 4 p.m." substitute "before 12 noon".
(2)In clause 17(1)(b)(ii) of Schedule 2 to the Principal Act for "manner; or" substitute "manner—".
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Part 6—Amendments to the City of Melbourne Act 2001
85Application of certain provisions of the Local Government Act 1989
In section 5(1) of the City of Melbourne Act 2001—
(a)after "73," insert "73A, 73B,";
(b)after "74B" insert ", 74C".
86Deputy Lord Mayor
(1)For section 22(1)(b) of the City of Melbourne Act 2001 substitute—
"(b)the Lord Mayor is suspended or required to take leave of absence under the Local Government Act 1989.".
(2)After section 22(1) of the City of Melbourne Act 2001 insert—
"(1A)The Deputy Lord Mayor must also act as the Lord Mayor during any period in which the Lord Mayor is absent from the City of Melbourne or is otherwise unable to carry out the duties of office.".
87Term of office of Lord Mayor and Deputy Lord Mayor
(1)In section 23(3) of the City of Melbourne Act 2001—
(a)in paragraph (c) for "Court." substitute "Court; or";
(b)after paragraph (c) insert—
"(d)is disqualified from holding the office following a finding made by VCAT of serious misconduct or gross misconduct by the Lord Mayor or Deputy Lord Mayor under section 81K of the Local Government Act 1989.".
(2)After section 23(3) of the City of Melbourne Act 2001 insert—
"(4)If VCAT makes a finding of serious misconduct or gross misconduct by the Lord Mayor of the City of Melbourne under section 81K of the Local Government Act 1989, the Lord Mayor is disqualified from holding the office of Lord Mayor from the date of the finding and for the remainder of the term of office unless VCAT otherwise orders.
(5)If VCAT makes a finding of serious misconduct or gross misconduct by the Deputy Lord Mayor of the City of Melbourne under section 81K of the Local Government Act 1989, the Deputy Lord Mayor is disqualified from holding the office of Deputy Lord Mayor from the date of the finding and for the remainder of the term of office unless VCAT otherwise orders.".
88Filling of Vacancies
In section 24(1) of the City of Melbourne Act 2001 for "Chief Executive Officer that is not later than the 100th day after the vacancy arises" substitute "Minister under section 38 of the Local Government Act 1989".
89Appointment of acting Deputy Lord Mayor
In section 25(1) of the City of Melbourne Act 2001 after "vacant" insert "or the Deputy Lord Mayor is acting as Lord Mayor under section 22(1)".
90New section 26A inserted
After section 26 of the City of Melbourne Act 2001 insert—
"26A Allowance reviews by Minister
(1)The Minister must, at least once every year, review the amounts of Councillor, Lord Mayoral and Deputy Lord Mayoral allowances.
(2)The Minister must have regard to movements in the levels of remuneration of executives within the meaning of the Public Administration Act 2004 when reviewing the amounts of the Councillor, Lord Mayoral and Deputy Lord Mayoral allowances under subsection (1).
(3)If a review conducted by the Minister under this section results in a finding that Councillor, Lord Mayoral and Deputy Lord Mayoral allowances require alteration, the Minister must specify by notice in the Government Gazette the new allowance amounts.".
91General provisions concerning allowances
(1)Before section 27(1) of the City of Melbourne Act 2001 insert—
"(1A)Subject to subsection (1), the Council must pay a Councillor, the Lord Mayoral and Deputy Lord Mayoral allowances as specified in the most recent of—
(a)an Order in Council made under section 26; or
(b)a Minister's notice made under section 26A.".
(2)After section 27(2) of the City of Melbourne Act 2001 insert—
"(3)A person elected to be Lord Mayor, Deputy Lord Mayor or a Councillor is entitled to receive the appropriate allowance for that office from the date the person takes the oath of office under section 63 of the Local Government Act 1989.
(4)A person who becomes Lord Mayor, acting Lord Mayor or Deputy Lord Mayor as a result of—
(a)a resolution by the Council under section 24(3)(a) that an election not be held to fill the vacancy of Lord Mayor; or
(b)an appointment by the Council under section 24(3)(b) to fill the vacancy of Deputy Lord Mayor; or
(c)a circumstance specified by section 22(1)—
the Lord Mayor, acting Lord Mayor or Deputy Lord Mayor is entitled to receive the appropriate allowance for that office from the date of the resolution, appointment or commencement of the circumstance.".
92New section 27AA inserted
After section 27 of the City of Melbourne Act 2001 insert—
"27AA Councillor taken to not have conflict of interest for purposes Division 1A of Part 4 of the Local Government Act 1989
For the purposes of Division 1A of Part 4 of the Local Government Act 1989, a Councillor is taken to not have a conflict of interest if the matter relates to—
(a)making an appointment; or
(b)passing a resolution; or
(c)delegating by instrument a power, duty or function—
under this Part.".
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Part 7—Amendments to the Victorian Civil and Administrative Tribunal Act 1998
93Amendments to the Victorian Civil and Administrative Tribunal Act 1998
After Part 13A of Schedule 1 to the Victorian Civil and Administrative Tribunal Act 1998 insert—
"Part 13B—Local Government Act 1989
46EConstitution of Tribunal
(1)The Tribunal is to be constituted for the purposes of proceedings under sections 30, 81D, 81E and 81J(1)(b) of the Local Government Act 1989 by at least 2 members—
(a)one of whom is a senior member and has been admitted to legal practice;
(b)one of whom is a person who has at least 5 years experience in local government governance matters.
(2)The Tribunal is to be constituted for the purposes of proceedings for review of a decision made by a Councillor Conduct Panel under section 81Q of the Local Government Act 1989 by a senior member who has been admitted to legal practice sitting alone.
46FCosts
Despite section 109, the Council is to bear the costs of the proceedings unless—
(a)the Secretary is the applicant; or
(b)VCAT otherwise orders.".
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Part 8—Repeal of Amending Act
94Repeal of amending Act
This Act is repealed on 1 January 2010.
Note
The repeal of this Act does not affect the continuing operation of the amendments made by it (see section 15(1) of the Interpretation of Legislation Act 1984).
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Endnotes
Minister's second reading speech—
Legislative Assembly: 12 September 2008
Legislative Council: 10 October 2008
The long title for the Bill for this Act was "A Bill for an Act to amend the Local Government Act 1989, the City of Melbourne Act 2001 and the Victorian Civil and Administrative Tribunal Act 1998 and for other purposes."
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