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Recent changes to legislation – implementation of Stage 1 of the Operation Belcarra report recommendations and automatic suspension of Councillors

Read the Frequently Asked Questions about Local Government Electoral (Implementing Stage 1 of Belcarra) and Other Legislation Amendment Act 2018 (word icon 414 KB).

Purpose

The purpose of this bulletin is to inform Local Governments of legislative amendments to:

  • implement the Government’s response to recommendations 20 and 23 to 26 of the Crime and Corruption Commission (CCC) report Operation Belcarra: A blueprint for integrity and addressing corruption risk in Local Government (Belcarra Report)
  • provide for the automatic suspension of Councillors charged with a disqualifying offence
  • provide for additional powers of State intervention if it is in the public interest.

Background

The Belcarra Report contained 31 recommendations for changes to reduce the risk of corruption and to improve equity, transparency, integrity and accountability in Local Government elections and decision-making. The following recommendations were considered significant to require urgent legislative change:

  • recommendation 20 to ban donations from property developers for candidates, third parties, political parties and Councillors
  • recommendations 23 to 26 to strengthen the process associated with the declaration of Councillor conflicts of interest, the management of conflicts of interest and material personal interests within Council meetings and penalties for non-compliance.

In addition, ongoing investigations by the CCC led to serious criminal charges being laid against a number of Councillors and Local Government employees. The laying of these charges and the potential for further charges against other Councillors highlighted a need for further legislative changes that would trigger the automatic suspension of Councillors charged with a serious integrity offence to ensure integrity in the system of Local Government, and provide for additional powers of state intervention where it is in the public interest to do so.

Details

The Local Government Electoral (Implementing Stage 1 of Belcarra) and Other Legislation Amendment Act 2018 (the Amendment Act) was Assented to on 21 May 2018. To implement recommendation 20 of the Belcarra Report, the Amendment Act amends the Electoral Act 1992 (EA) and the Local Government Electoral Act 2011 (LGEA) to prohibit the making of political donations by property developers to candidates, groups of candidates, third parties, political parties, Councillors and Members of State Parliament. These amendments commence on a date to be fixed by proclamation.

To implement recommendations 23 to 26 of the Belcarra Report, the Amendment Act also amends the Local Government Act 2009 (LGA) and the City of Brisbane Act 2010 (COBA) to strengthen requirements for how a Councillor must deal with a real or perceived conflict of interest or a material personal interest.

In addition, the Amendment Act amends the LGA to provide for the dissolution of a Local Government or the suspension or dismissal of a Councillor where the Minister for Local Government reasonably believes it is in the public interest to do so.

Finally, the Amendment Act amends the LGA and COBA to provide for the automatic suspension of Councillors charged with a disqualifying offence.

The Amendments to the LGA and the COBA outlined above, commenced on Assent (21 May 2018).

Key changes under the Amendment Act are described in detail below.

What political donations are prohibited?

  • A ‘prohibited donor’ is defined to mean a property developer and any industry representative organisation whose members are mainly property developers.
  • The term industry representative organisation is not defined in the Act and is to be given its ordinary meaning.
  • Each of the following is a property developer:
    • a corporation engaged in a business that regularly involves the making of relevant planning applications by or on behalf of a corporation in connection with the residential or commercial development of land and with the ultimate purposes of the sale or lease of land for profit; and
    • a close associate of a corporation mentioned above.
  • As the Act does not include a definition of ‘regularly’, it is to be given its ordinary meaning. For example, the Merriam-Webster online dictionary defines regularly as “in a regular manner’ or ‘on a regular basis: at regular intervals’.
  • If a business is unsure about whether it is a prohibited donor, it may make an application to the Queensland Electoral Commissioner for a determination under proposed sections 277 of the EA and 113D of the LGEA.
  • The making and acceptance of political donations made by or on behalf of prohibited donors is prohibited. Soliciting other persons by prohibited donors (or others on their behalf) to make political donations is also prohibited.
  • A person who does not comply with a prohibition about political donations may be guilty of an offence with a maximum penalty of 400 penalty units or 2 years imprisonment.
  • A person who knowingly participates, directly or indirectly in a scheme to circumvent a prohibition about political donations may be guilty of an offence with a maximum penalty of 1500 penalty units or 10 years imprisonment. (refer to section 32 of the Amendment Act (new section 194B(1) of the LGEA, on commencement). The offence is a serious integrity offence under section 153 of the COBA/LGA. As a serious integrity offence is a disqualifying offence, a Councillor charged with this offence is automatically suspended and if convicted, the Councillor is disqualified from being a Councillor for 7 years after the person is convicted.

When are donations prohibited?

  • The prohibitions on donations apply from 12 October 2017 (the date the Local Government Electoral (Implementing Belcarra) and Other Legislation Amendment Bill 2017 (the 2017 Bill) was introduced into the Legislative Assembly. Prohibited donations made on or after that date need to be repaid to the donor within 30 days of the commencement of the Amendment Act (parts 3 and 5).
  • There is no offence if any donations are made or received between 12 October 2017(the date of introduction of the 2017 Bill) and the commencement of parts 3 and 5, but failure to repay any such donation within 30 days of commencement will be an offence (refer section 34 of the Amendment Act (new section 212 of the LGEA on commencement)).
  • The provisions in relation to prohibited donors will commence on a day to be fixed by proclamation (refer to parts 1, 3 and 5 of the Amendment Act).

How are conflicts of interest to be dealt with?

  • A conflict of interest is a conflict that is between a Councillor’s personal interests and the public interest that might lead to a decision that is contrary to the public interest.
  • However, a Councillor does not have a conflict of interest in a matter if the Councillor's interest is no greater than that of other persons in the Local Government area or merely because of:
    • an engagement with a community group, sporting club or similar organisation undertaken by the Councillor in the Councillor’s capacity as a Councillor; or
    • membership of a political party; or
    • membership of a community group, sporting club or similar organisation if the Councillor is not an office holder for the group, club or organisation; or
    • the Councillor’s religious beliefs; or
    • o the Councillor having been a student of a particular school or the Councillor’s involvement with a school as a parent of a student at the school.
    Also, a Councillor who is nominated by the Local Government to be a member of a board of a corporation or other association does not have a personal interest in matters relating to the corporation or association merely because of the nomination or appointment as a member.
  • If the matter to be discussed at the meeting of the Local Government or any of its committees, and the matter is not an ordinary business matter, and a Councillor has a real conflict of interest or perceived conflict of interest, the Councillor must inform the Council meeting about the Councillor’s personal interest (real or perceived conflict of interest) in the matter (refer to section 177E of COBA and section 175E of the LGA).
  • When informing of a personal interest in a matter, the Councillor must clearly identify the nature of the personal interest and, if the personal interest arises because of a relationship with, or receipt of a gift from another person:
    • the name of the other person
    • the nature of their relationship or value and date of receipt of the gift
    • the nature of the other person’s interests in the matter.
  • A Councillor who has informed the meeting of a personal interest may decide to leave the meeting room. If the Councillor does not leave the meeting, other Councillors must decide whether the Councillor has a real or perceived conflict of interest in the matter and whether the Councillor must leave the meeting or may stay and participate in the meeting.
  • A Councillor who fails to inform a meeting of a conflict of interest or does not comply with a decision for the Councillor to leave the meeting room may be guilty of an offence which carries a maximum penalty of 100 penalty units or one year’s imprisonment. The offence is an integrity offence under section 153 of the COBA/LGA. As an integrity offence is a disqualifying offence, a Councillor charged with this offence is automatically suspended and if convicted, the Councillor is disqualified from being a Councillor for 4 years after the person is convicted.
  • Where a majority of Councillors inform the meeting they have a personal interest in a particular matter, the Councillors must delegate deciding the matter under COBA section 238 or under the LGA section 257. However, a Local Government must not delegate a power that the COBA/LGA states must be exercised by resolution.
  • In instances where the matter can not be delegated under COBA section 238 or the LGA section 257, the Minister may under section 175F LGA and COBA section 177F, by signed notice given to the Councillor, approve the Councillor participating in a meeting, or being present while a matter is discussed and voted on.

How are material personal interests to be dealt with?

  • A Councillor has a material personal interest in a matter if any of the following stand to gain a benefit, or suffer a loss (either directly or indirectly) depending on the outcome of consideration of the matter (refer to section 177B of COBA and section 175B of the LGA):
    • the Councillor
    • a spouse, parent, child or sibling of the Councillor
    • a person who is in a partnership with the Councillor
    • an employer of the Councillor
    • an entity of which the Councillor is a member
    • another entity prescribed under regulation.
  • If a matter to be discussed at a meeting of the Local Government or any of its committees, and the matter is not an ordinary business matter, and a Councillor has a material personal interest, the Councillor with a material personal interest must tell the meeting about their interest and leave the meeting while the matter is discussed and a decision is made. When informing of a material personal interest, the Councillor must clearly identify (refer to section 177C of COBA and section 175C of the LGA):
    • the name of the person or entity who stands to gain a benefit, or suffer a loss, depending on the outcome of the consideration of the matter
    • how the person or entity stands to gain the benefit or suffer the loss
    • the nature of the Councillor’s relationship to the person or entity (if not the Councillor).
  • A Councillor who fails to inform a meeting of a material personal interest or does not leave the meeting while the matter is discussed may be guilty of an offence which carries a maximum penalty of 200 penalty units or two years imprisonment. The offence is an integrity offence under section 153 of the COBA/LGA. As an integrity offence is a disqualifying offence, a Councillor charged with this offence is automatically suspended and if convicted, the Councillor is disqualified from being a Councillor for 4 years after the person is convicted.
  • Where a majority of Councillors have a material personal interest in a particular matter, the Local Government must delegate the deciding the matter under the LGA section 257 and the COBA section 238 (unless deciding the matter can not be delegated under those sections).
  • In instances where the matter can not be delegated under COBA section 238 or the LGA section 257, the Minister may under section 175F LGA and COBA section 177F, by signed notice given to the Councillor, approve the Councillor participating in a meeting, or being present while a matter is discussed and voted on.

What if a Councillor attempts to influence others?

  • If a Councillor has a conflict of interest or personal material interest in a matter they must not influence or attempt to influence a Local Government employee or contractor of the Local Government or another Councillor to vote on the matter in a particular way at a meeting of the Local Government or any of its committees. This restriction does not apply where a Councillor has a conflict of interest in a matter but the other Councillors decide the Councillor may remain and participate in the meeting, or where the Minister for Local Government has approved the Councillor taking part in the consideration and decision-making on the matter (refer to section 177I of COBA and section 175I of the LGA).
  • A Councillor who influences or attempts to influence others as described above may be guilty of an offence which carries a maximum penalty of 200 penalty units or two years imprisonment. The offence is an integrity offence and a disqualifying offence meaning that a person is automatically suspended as a Councillor when the person is charged with the disqualifying offence and if convicted, the Councillor is disqualified from being a Councillor for 4 years after the person is convicted.

What if a Councillor suspects another Councillor has a conflict of interest or material personal interest?

  • A Councillor at a meeting who believes or suspects, on reasonable grounds, that another Councillor at the meeting has a conflict of interest or material personal interest must, as soon as practicable, inform the person presiding at the meeting about their belief or suspicion and the facts and circumstances that form the basis of the belief or suspicion, if the other Councillor has not informed the meeting of the personal interest. A contravention is misconduct that could result in disciplinary action being taken against the Councillor (refer to section 177G of COBA and section 175G of the LGA).
  • A person must not, because a Councillor complied with the duty to report another Councillor’s material personal interest or conflict of interest:
    • prejudice, or threaten to prejudice, the safety or career of the Councillor or another person; or
    • intimidate or harass, or threaten to intimidate or harass, the Councillor or another person; or
    • take any action that is, or is likely to be, detrimental to the Councillor or another person.
  • The maximum penalty is 167 penalty units or two years imprisonment. The offence is an integrity offence under section 153 of the COBA/LGA. As an integrity offence is a disqualifying offence, a Councillor charged with this offence is automatically suspended and if convicted, the Councillor is disqualified from being a Councillor for 4 years after the person is convicted (refer to section 177H of COBA and section 175H of the LGA).

When can Councillors be suspended or dismissed?

  • Councillors will be automatically suspended when charged with a disqualifying offence under the LGA/COBA section 153. In addition to the offences under the LGA/COBA section 153(2) and section 153(3), serious integrity offences and integrity offences prescribed in schedule 1 of the LGA/COBA are disqualifying offences (section 153(6) LGA/COBA).
  • A Councillor who is charged with a disqualifying offence (including charges laid before commencement of the new requirements) must immediately notify the Minister for Local Government, the Chief Executive Officer of the Local Government and, if the Councillor is not the mayor, the mayor of the Local Government of the charge. Failure to notify as required will be an offence with a maximum penalty of 100 penalty units. This notification requirement applies to existing and new charges (refer to sections 186D and 278 of COBA and sections 182C and 326 of the LGA).
  • The new provisions apply in relation to a disqualifying offence whether the act or omission constituting the offence was committed before or after the commencement (21 May 2018). This means that if a proceeding for a disqualifying offence against a Councillor has started before the commencement (21 May 2018), but has not ended, the Councillor is automatically suspended as a Councillor on the commencement (21 May 2018) (refer to section 158A and chapter 8 part 9, and section 158A and chapter 9 part 13 of the LGA).
  • Further, if before the commencement, a Councillor was convicted of an offence that is a new disqualifying offence and on the commencement the disqualifying period (the period stated in LGA/COBA section 153(1)) for the offence would not have ended, the Councillor automatically stops being a Councillor on commencement.
  • Under the LGA, the Minister may also dissolve a Local Government or suspend or dismiss a Councillor where it is in the public interest to do so, and appoint an interim administrator where all Councillors are suspended.

Action by the Minister—public interest amendments

  • Amendments to the LGA provide for the Minister to recommend to the Governor in Council to suspend or dismiss Councillors or dissolve a Local Government and appoint an interim administrator, if the Minister reasonably believes it is in the public interest to do so (refer to section 122 of the LGA).
  • The term "public interest" is not defined. This is intentional to permit the phrase to evolve over time to reflect community expectations over time. Relevant factors in determining "public interest" may include but are not limited to the following factors:
    • complying with applicable law (both its letter and spirit)
    • carrying out functions fairly and impartially
    • complying with the principles of procedural fairness/natural justice
    • acting reasonably
    • ensuring accountability and transparency
    • exposing corrupt conduct or serious maladministration
    • avoiding or properly managing private interests conflicting with official duties
    • community confidence in a Local Government and/or its Councillors.

Implementation Support

The Local Government Electoral (Implementing Stage 1 of Belcarra) and Other Legislation Amendment Act 2018 and Explanatory Notes are available on the Queensland Legislation website:

The Department of Local Government, Racing and Multicultural Affairs has updated the information on Local Government governance at www.dlgrma.qld.gov.au and will provide face-to-face training to ensure that all Councillors and CEOs thoroughly understand the new legislative requirements.

Further Information

Any further enquiries on this matter should be addressed to:

Mr Daniel Westall
Manager Governance
Department of Local Government, Racing and Multicultural Affairs
P: (07) 3452 6713
E: This email address is being protected from spambots. You need JavaScript enabled to view it.