Local Government Amendment (Improved Governance) Bill 2015

Introduction Print

EXPLANATORY MEMORANDUM

Clause Notes

Part 1—Preliminary

Clause 1 sets out the purpose of the Bill.

Clause 2 provides for the Bill to come into operation on a day or days to be proclaimed with a default commencement date of 1 September 2016.

Clause 3 provides that in the Bill, the Local Government Act 1989 is called the Principal Act.

Part 2—Amendment of Local Government Act 1989

Division 1—Role of Mayor and Councillors and other matters

Clause 4 amends section 63 of the Local Government Act 1989.

Clause 4(1) amends the heading to section 63 of the Local Government Act 1989 so that it reflects the changes being made to that section by clause 4.

Clause 4(2) substitutes section 63(1) with new section 63(1) and (1A). New section 63(1) provides that a person elected to be a Councillor is not capable of acting as a Councillor until he or she has taken an oath of office, and read and declared that they will abide by the Councillor Code of Conduct. The requirement to take an oath of office is not a new requirement and is currently provided for in section 63(1) of the Local Government Act 1989.

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New section 63(1A) sets out the wording of the oath of office. The oath of office currently set out in section 63(1) of the Local Government Act 1989 has been retained in new section 63(1A).

Clause 4(3) inserts new section 63(3) which sets out the manner in which a declaration under section 63(1) must be made, which must be in writing and witnessed by the Chief Executive Officer.

Clause 5 substitutes new section 64 which provides that a failure by a person elected to be a Councillor to take the oath of office or make the declaration to abide by the Councillor Code of Conduct within 3 months of being declared elected, will result in that office of Councillor becoming vacant.

Clause 6 inserts new section 65 in the Local Government Act 1989.

New section 65(1) provides for the role of a Councillor.

New section 65(2) sets out things a Councillor must do in performing the role of Councillor, being—

giving consideration to the diversity of interests and needs of the local community;

observing principles of good governance and act with integrity;

providing civic leadership in relation to the exercise of the various functions and responsibilities of the Council under the Local Government Act 1989 and other Acts;

participating in the responsible allocation of Council resources through the annual budget;

facilitating effective communication between the Council and the community.

New section 65(3) provides that the role of Councillor does not include any of the functions of the Chief Executive Officer.

Clause 7 inserts new section 73AA of the Local Government Act 1989 which sets out what the functions of the Mayor of a Council include.

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Clause 8 inserts new subsections (6A) and (6B) in section 76C of the Local Government Act 1989.

New section 76C(6A) of the Local Government Act 1989 provides that a Councillor must within one month of any amendments to a Councillor Code of Conduct being approved, make a declaration stating they will abide by the Code of Conduct.

New section 76C(6B) of the Local Government Act 1989 provides that the declaration must be in writing and witnessed by the Chief Executive Officer.

Clause 9 amends section 94A of the Local Government Act 1989 which sets out the functions of the Chief Executive Officer.

Section 94A(1) currently provides that the Chief Executive Officer is responsible for—

establishing and maintaining an appropriate organisational structure for the Council; and

ensuring the decisions of the Council are implemented without undue delay; and

the day to day management of the operations in accordance with the Council Plan; and

developing, adopting and disseminating a code of conduct for Council staff; and

providing timely advice to the Council; and

carrying out the responsibilities as a deemed employer under or with respect to the Accident Compensation Act 1985 or the Workplace Injury Rehabilitation and Compensation Act 2013.

Clause 9(1) of the Bill amends section 94A(1) to insert new paragraphs (da), (db) and (f) setting out three further responsibilities of the Chief Executive Officer, as follows—

ensuring that the Council receives timely and reliable advice about its legal obligations under the Local Government Act 1989 or any other Act;

supporting the Mayor in the performance of his or her role;

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performing any other function specified in the Local Government Act 1989 or any other Act.

Clause 9(2) inserts new section 94A(3A) to provide that the Chief Executive Officer is responsible for managing interactions between Council staff and Councillors.

Clause 10 amends section 139 of the Local Government Act 1989.

Clause 10(1) inserts new section 139(2A) to provide that the chairperson of an audit committee must not be a Councillor or a member of Council staff and must be suitably qualified to be chairperson of the committee.

Clause 10(2) inserts new section 139(6A) to provide that the chairperson may require any report prepared by the audit committee be tabled at the next ordinary meeting of the Council.

Clause 11 inserts new section 195A in the Local Government Act 1989 to prohibit Councillor discretionary funds by providing that a Council must not adopt or implement a policy under which a Councillor is allocated a fixed or other amount for the purpose of enabling a Councillor to nominate a person, body or organisation, or fund to which the funds are to be paid.

This is intended to include funds allocated to particular Council wards.

Division 2—Councillor conduct

Clause 12 amends section 3(1) of the Local Government Act 1989 to insert definitions of bullying, Councillor Conduct Panel, gross misconduct, IBAC, internal resolution procedure, law enforcement agency, misconduct, panel list, Principal Conduct Officer, Principal Councillor Conduct Registrar and serious misconduct.

Clause 12 also amends the definition of Department to mean the Department of Environment, Land, Water and Planning.

Some of these definitions are currently in section 81A of the Local Government Act 1989 which is being repealed by clause 19 of the Bill.

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Clause 13 amends section 29 of the Local Government Act 1989.

Clause 13(1) inserts new section 29(1)(ea) in the Local Government Act 1989 to provide that where a Councillor fails to make a declaration stating that he or she will abide by the Councillor Code of Conduct, as provided by amendments made by clause 8 of the Bill, that Councillor is not capable of becoming or continuing to be a Councillor or nominating as a candidate at a Council election.

Clause 13(2) amends section 29(2)(b) of the Local Government Act 1989 to provide that a person is not capable of becoming or continuing to be a Councillor for a period of 8 years, instead of 7 years as is currently provided, if convicted of certain offences specified in that section, which are punishable upon first conviction for a term of imprisonment of 2 years, instead of 5 years as is currently provided.

Clause 13(3) amends section 29(4) of the Local Government Act 1989 to provide that the Chief Municipal Inspector, instead of the Secretary, may apply to VCAT for an order requiring the Councillor to take a leave of absence from the office of Councillor if the Councillor is charged with an offence referred to in section 29(2) of that Act.

Clause 14 amends section 72 of the Local Government Act 1989 which sets out when the office of Mayor becomes vacant. Clause 14 amends section 72(1)(ca) of the Local Government Act 1989 to refer to sections 81J(2), 81J(2A) of that Act in addition to the current reference to section 81K of that Act to provide that the office of Mayor becomes vacant if he or she becomes ineligible to hold office under those sections.

Clause 15 amends section 76C of the Local Government Act 1989.

Clause 15(1) substitutes section 76C(1) and (2) of the Local Government Act 1989 to provide that a Council must review and make any necessary amendments to their Councillor Code of Conduct within 4 months after the commencement of clause 15 (new subsection (1)) and otherwise within 4 months after a general election (new subsection (2)) at a special meeting called solely for this purpose.

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Clause 15(2) substitutes section 76C(3)(a) of the Local Government Act 1989 to provide that a Councillor Code of Conduct must include an internal resolution procedure for dealing with an alleged contravention of the Councillor Code of Conduct by a Councillor. Section 76C(3)(a) currently provides that a Councillor Code of Conduct must include the Councillor Conduct principles.

Clause 15(2) also inserts new section 76C(3)(c) to provide that a Councillor Code of Conduct must include any provision prescribed for the purpose of section 76C.

It also amends section 76C(3)(d) to provide that a Councillor Code of Conduct must include provisions addressing any matters prescribed for the purpose of section 76C. Section 76(3)(d) currently provides for the inclusion of provisions "in respect of any matter" for the purposes of section 76C.

Clause 15(3) inserts new section 76C(6)(c) to provide that a copy of the current Councillor Code of Conduct must be published on the Council's Internet website, in addition to making it available to each Councillor, and for inspection by the public at the Council office and any district offices.

Clause 15(4) repeals section 76C(7) of the Local Government Act 1989 as a consequence of the amendment made by clause 15(2)(a) which removes the requirement for the Councillor Code of Conduct to include the Councillor conduct principles in the Code.

Clause 16 amends section 76E of the Local Government Act 1989.

Clause 16(1) repeals section 76E(1) of the Local Government Act 1989, which provides that a Councillor must not improperly direct or influence a member of Council staff in certain circumstances specified in that section. Section 76E(1) is repealed as this requirement is also dealt with in section 76E(2).

Clause 16(2) inserts at the foot of section 76E(2) a penalty of 120 penalty units. Section 76E(2) provides that a Councillor must not direct, or seek to direct, a member of Council staff in certain circumstances specified in that section. The amendment made by clause 16(2) makes any such direction by a Councillor an offence.

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Clause 16(3) inserts new section 76E(2A) and (2B) in the Local Government Act 1989.

New section 76E(2A) provides that a Councillor must not be charged with an offence under section 76(2) if an application for a finding of serious misconduct has been made to a Councillor Conduct Panel for the same conduct prohibited by section 76(2) unless the application to the Councillor Conduct Panel is withdrawn, suspended or referred to another law enforcement agency or the Councillor ceases to be a Councillor. Clause 12 of the Bill inserts a definition of law enforcement agency in section 3 of the Local Government Act 1989.

New section 76E(2B) provides that an application for finding of serious misconduct by a Councillor Conduct Panel must not be made if a Councillor has been charged with an offence under section 76E(2) for the same conduct.

Clause 17 amends section 77 of the Local Government Act 1989.

Clause 17(2) inserts at the foot of section 77(1) a penalty of 120 penalty units. Section 77(1) currently provides that a Councillor or a person who has previously been a Councillor or a member of a special committee must not release information the person knows or should reasonably know, is confidential information (as defined in existing section 77(2) of the Local Government Act 1989). The amendment made by clause 17(1) substitutes the word "release" with "disclose". The amendment made by clause 17(2) will make the disclosure of such confidential information by a Councillor or a person who has previously been a Councillor or a member of a special committee an offence.

Clause 17(3) inserts new section 77(1A), (1B) and (1C).

New section 77(1A) sets out circumstances when a Councillor or a person who has previously been a Councillor or a member of a special committee may disclose confidential information as defined in existing section 77(2) of the Local Government Act 1989. The kind of circumstances where the disclosure of confidential information (as defined in section 77) is permitted under new section 77(1A) include to a court or tribunal in the course of legal proceedings or to the extent reasonably required for law enforcement purposes.

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New section 77(1B) provides that a Councillor must not be charged with an offence under section 77(1) if an application for a finding of serious misconduct has been made to a Councillor Conduct Panel for the same conduct prohibited by section 77(1) unless the application to the Councillor Conduct Panel is withdrawn, suspended or referred to another law enforcement agency or the Councillor ceases to be a Councillor. Clause 12 of the Bill inserts a definition of law enforcement agency in section 3 of the Local Government Act 1989.

New section 77(1C) provides that an application for a finding of serious misconduct by a Councillor Conduct Panel must not be made if a Councillor has been charged with an offence under section 77(1) for the same conduct.

Clause 18 inserts new Division 1AB in Part 4 of the Local Government Act 1989 which provides for the development and maintenance of an internal resolution procedure by a Council.

New section 81AA(1) provides that a Council must develop and maintain an internal resolution procedure to address alleged contraventions of the Councillor Code of Conduct by a Councillor.

New section 81AA(2) provides that the internal resolution procedure must—

be included in the Councillor Code of Conduct;

include any prescribed processes;

provide for the selection of an arbiter;

specify the role of the arbiter in the internal resolution procedure;

provide processes to ensure that parties affected by an application alleging a contravention of a Councillor Code of Conduct are given the opportunity to be heard;

specify that the Council and Councillor are to be given written reasons for any findings made by the arbiter;

address any matters that are prescribed for the purposes of new section 81AA;

include any provisions that are prescribed for the purposes of new section 81AA.

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New section 81AB(1) specifies written directions a Council may give to a Councillor following an internal resolution procedure where it is found that the Councillor has contravened the Councillor Code of Conduct. The Council may direct the Councillor to make an apology, or to not attend up to 2 meetings of the Council or that the Councillor be removed from a position representing the Council and to not chair specified committee meetings or an assembly of Councillors for up to 2 months. The Council may make any or all of these directions in respect of a Councillor found to have contravened the Councillor Code of Conduct.

New section 81AB(2) provides that if a direction is given that a Councillor must not attend 2 meetings of the Council, those meetings must be the next two scheduled meetings of the Council after the direction is made.

Clause 19 repeals section 81A of the Local Government Act 1989. Currently section 81A sets out definitions for the purposes of Division 1B of Part 4 of the Local Government Act 1989. Some of these definitions will, as a result of amendments to be made by the Bill, become relevant to other Parts and Divisions of the Local Government Act 1989 (for example, the definition of gross misconduct) and other definitions will become redundant altogether (for example, the definition of CCP Registrar) as a consequence of amendments being made by the Bill. Clause 12 of the Bill inserts the definitions with continued relevance in section 3 of the Local Government Act 1989.

Clause 20 amends section 81B of the Local Government Act 1989. Section 81B currently provides for a Council, a Councillor or a group of Councillors to make an application to Councillor Conduct Panel for a finding of misconduct by a Councillor or for authority to make an application to VCAT for a finding of serious misconduct by a Councillor.

Clause 20(1) substitutes section 81B(1) of the Local Government Act 1989 with a new section 81B(1), (1A) and (1B). New section 81B(1) provides that a Councillor Conduct Panel may hear allegations of misconduct and serious misconduct by a Councillor. New section 81B(1A) provides that an application for misconduct may be made by the Council, a Councillor or a group of Councillors.

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New section 81B(1B) provides that an application for serious misconduct by a Councillor may be made by the Council, a Councillor, a group of Councillors or the Chief Municipal Inspector.

Clause 20(2) repeals section 81B(2) of the Local Government Act 1989 to remove the requirement to lodge an application with the CCP Registrar.

Clause 20(3) substitutes section 81B(3)(b) and (c) of the Local Government Act 1989 to provide that an application under section 81B must—

set out the circumstances, actions or inactions of the Councillor and the particulars of any evidence;

specify any steps taken by Council to resolve the matter and why the matter was not resolved, or if no steps were taken the reason why Council did not take any steps to resolve the matter.

Clause 21 substitutes section 81C of the Local Government Act 1989. Section 81C currently provides for the dismissal of an application made under section 81B by a Councillor Conduct Panel if the application is frivolous, vexatious, misconceived or lacking in substance or insufficient reasons have been given explaining why the matter could not be resolved through internal dispute processes.

New section 81C(1) provides that the Principal Councillor Conduct Registrar (who is appointed under new section 81S which is being inserted by clause 34 of the Bill) must, after examining an application made under section 81B, form a Councillor Conduct Panel if he or she is satisfied—

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

there is sufficient evidence to support the allegations specified in the application; and

the Council has taken sufficient or appropriate steps to resolve the matter; and

where no steps were taken by Council to resolve the matter, the reasons for not taking any steps.

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New section 81C(2) provides that the Principal Councillor Conduct Registrar must reject or refer an application made under section 81B, if not satisfied of any of the matters in new section 81C(1).

New section 81C(3) provides that the Principal Councillor Conduct Registrar must form a Councillor Conduct Panel if the application is made by the Chief Municipal Inspector under new section 81B(1B).

New section 81C(4) provides that a rejection or referral of an application under that section does not prevent a further application being made in respect of the same conduct.

Clause 22 repeals section 81D of the Local Government Act 1989 to remove the ability of the Councillor Conduct Panel to refer an application to VCAT.

Clause 23 amends section 81E of the Local Government Act 1989 to provide that VCAT may hear an application made by the Chief Municipal Inspector that alleges gross misconduct by a Councillor. Section 81E currently allows the Secretary to make this kind of application.

Clause 24 amends section 81F of the Local Government Act 1989 which specifies who the parties are to a proceeding referred to or commenced in VCAT under section 81D, 81E or 81J of that Act.

Clause 24(1) amends section 81F(1) to remove references to sections 81D and 81J as proceedings will now only be commenced in VCAT under section 81E.

Clause 24(2) repeals section 81F(2) as a consequence of the amendments made by clauses 22, 23 and 25.

Clause 25 amends section 81J of the Local Government Act 1989 which sets out the determinations that can be made by a Councillor Conduct Panel.

Clause 25(1) substitutes section 81J(1)(b) to provide the Panel may make a finding of serious misconduct following an application made under section 81B. Section 81JB(1)(b) currently provides that the Panel can only authorise an applicant to apply to VCAT for a finding of serious misconduct by a Councillor.

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Clause 25(2) amends section 81J(1)(c) to provide that a Panel may make a finding that remedial action is required whether or not a finding of misconduct or serious misconduct is made. Section 81J(1)(c) currently provides that a Panel can make a finding of remedial action whether or not a finding of misconduct only has been made.

Clause 25(3) inserts new section 81(2)(d) to provide that if a Panel makes a finding of misconduct the Panel may also direct that the Councillor is ineligible to hold the office of Mayor for a period not exceeding the remainder of the Council's term.

Clause 25(4) inserts new section 81J(2A) to provide that if a Panel makes a finding of serious misconduct that Councillor is ineligible to hold the office of Mayor for the remainder of the Council's term unless the Panel directs otherwise and that the Panel may—

reprimand the Councillor; or

direct the Councillor to make an apology; or

direct the Councillor to take leave of absence for a period no longer than 2 months; or

suspend the Councillor for a period no longer than 6 months; or

direct that the Councillor is ineligible to chair a special committee.

Clause 25(5) repeals section 81J(7) as a consequence of clause 27 which repeals the section to which section 81J(7) relates.

Clause 26 substitutes section 81K of the Local Government Act 1989 to provide that if VCAT makes a finding of gross misconduct, VCAT may order that the Councillor is disqualified from continuing as Councillor for a period not exceeding 8 years. Section 81K currently provides for the findings and orders that can be made by VCAT in proceedings referred to or commenced under section 81D, 81E or 81J(1)(b). VCAT will no longer hear proceedings under sections 81D or 81J(1)(b) as a consequence of amendments made by clauses 22 and 25 of the Bill.

Clause 27 repeals section 81L of the Local Government Act 1989 which provides for the referral of a matter by VCAT to a Councillor

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Conduct Panel if VCAT considers remedial action is required or the Councillor Code of Conduct requires amendment.

Clause 28 amends section 81M of the Local Government Act 1989 to provide that a copy of a determination made by a Councillor Conduct Panel must also be given by the Panel to the Principal Councillor Conduct Registrar.

Clause 29 amends section 81N of the Local Government Act 1989 to omit VCAT as a consequence of the repeal of section 81D by clause 22 of the Bill.

Clause 30 amends section 81O of the Local Government Act 1989 to provide that a Councillor Conduct Panel must notify the Chief Municipal Inspector, instead of the Secretary, that a Councillor appears to have committed an offence under that Act.

Clause 31 amends section 81P of the Local Government Act 1989 which currently provides that the Secretary may require a Councillor Conduct Panel to suspend or stop consideration of a matter whether or not the Secretary has received a notice under section 81O of that Act.

Clause 31(1) amends the heading of section 81P to Investigation by Chief Municipal Inspector.

Clause 31(2) amends section 81P(1) to provide that the Chief Municipal Inspector may at any time require a Councillor Conduct Panel to suspend or stop consideration of a matter whether or not the Inspector has received a notice under section 81O from a Councillor Conduct Panel.

Clause 31(3) substitutes section 81P(2) and (3) with a new section 81P(2) to provide that within 28 days of the Chief Municipal Inspector requiring a Councillor Conduct Panel to suspend of stop consideration of a matter, the Chief Municipal Inspector must commence an investigation into the matter.

Clause 32 amends section 81Q of the Local Government Act 1989 which provides for review by VCAT of decisions made by a Councillor Conduct Panel. Clause 32 substitutes section 81Q(3) to provide that a person is not entitled to apply to VCAT for review of a decision to dismiss the application, because it is frivolous, vexatious, misconceived or lacking in substance.

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Currently section 81Q(3) sets out other circumstances where a person is not entitled to apply for review of a decision made by a Councillor Conduct Panel (in addition to because the application is frivolous, vexatious, misconceived or lacking in substance) including if the Panel has dismissed an application because insufficient reasons have been given to explain why the matter cannot be resolved by internal dispute processes.

Clause 33 repeals section 81S of the Local Government Act 1989. Section 81S currently provides that Schedule 5 to the Act has effect with respect to the establishment of Councillor Conduct Panels. Schedule 5 is being repealed by clause 37 of the Bill and clause 34 of the Bill is inserting new Divisions 1C and 1D in Part 4 of the Local Government Act 1989 to provide for a number of matters relating to Councillor Conduct Panels.

Clause 34 inserts new Divisions 1C and 1D in Part 4 of the Local Government Act 1989 to provide for the creation of the roles of Principal Councillor Conduct Registrar and Principal Conduct Officer and to provide for the formation, operation and dissolution of Councillor Conduct Panels.

New section 81S in new Division 1C provides for the appointment of the Principal Councillor Conduct Registrar by the Secretary to the Department of Environment, Land, Water and Planning.

New section 81T(1) in new Division 1C specifies the functions of the Principal Councillor Conduct Registrar, which are to—

receive applications for the establishment of Councillor Conduct Panels;

form Councillor Conduct Panels;

provide general advice and assistance to members of Councillor Conduct Panels in relation to their functions;

publish Councillor Conduct Panel determinations and any reasons for those determinations;

keep copies of all documents provided to a Councillor Conduct Panel;

comply with requests made by the Chief Municipal Inspector or VCAT for copies of documents of the Councillor Conduct Panel;

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to set and publish fees to be paid to Councillor Conduct Panel members;

to notify Councils of fees payable for Councillor Conduct Panel hearings;

to publish guidelines in relation to Panel procedures and processes.

New section 81T(2) provides that the Principal Councillor Conduct Registrar has power to do all things necessary in the performance of his or her functions.

New section 81U(1) in new Division 1D provides for the establishment, by the Minister, of a list of eligible persons who may be selected from the list to form Councillor Conduct Panels.

New section 81U(2) provides that the Minister has the power to appoint as many eligible persons as appropriate.

New section 81U(3) provides that to be eligible a person must be an Australian lawyer who has been admitted to the legal profession for a minimum of 5 years, or have experience that the Minister considers relevant to the position.

New section 81U(4) provides that a member may resign by notice to the Minister.

New section 81U(5) provides that the Minister may remove members if the Minister considers they are no longer suitable to sit on a Councillor Conduct Panel.

New section 81U(6) provides that the Public Administration Act 2004 does not apply to a Panel list member.

New section 81V in new Division 1D provides for the formation of Councillor Conduct Panels.

New section 81V(1) provides that subject to sections 81C and 81W, the Principal Councillor Conduct Registrar must form a Councillor Conduct Panel after examining a section 81B application.

New section 81V(2) provides that in forming a Councillor Conduct Panel, the Principal Councillor Conduct Registrar must select two people from the panel list.

New section 81V(3) and (4) provide that, of the 2 people selected to form a Councillor Conduct Panel, at least one of these people

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must be an Australian lawyer who has been admitted for at least 5 years in accordance with new section 81U(3)(a). The person selected to the Panel who is an Australian lawyer will be the chairperson of the Panel.

New section 81W(1) in new Division 1D provides that if the Principal Councillor Conduct Registrar receives an application that is related to an earlier application for which a Councillor Conduct Panel has been formed, the subsequent application must be forwarded to the Councillor Conduct Panel for consideration.

New section 81W(2) and (3) provide that the Councillor Conduct Panel may join the applications or return the application back to the Principal Councillor Conduct Registrar to be dealt with as a separate application.

New section 81X in new Division 1D sets out the functions of a Principal Conduct Officer.

New section 81Y in new Division 1D sets out the duties of the Chief Executive Officer in relation to Councillor Conduct Panels.

New section 81Y(1) provides that the Chief Executive Officer must appoint a Principal Conduct Officer.

New section 81Y(2) sets out the eligibility criteria for a Principal Conduct Officer.

New section 81Z in new Division 1D provides for when a Councillor Conduct Panel is dissolved.

New section 81ZA in new Division 1D provides that a member of a Councillor Conduct Panel is not personally liable for anything done or omitted to be done in good faith under the Local Government Act 1989.

Clause 35 amends section 82A of the Local Government Act 1989 to provide that the current Councillor Code of Conduct must be published on the Council's Internet website, as a consequence of new section 76C(6)(c) inserted by clause 15(3).

Clause 36 inserts new Division 1A in Part 10 of the Local Government Act 1989 to provide for the standing down of a Councillor in exceptional circumstances.

New section 219AA(1)(a) provides that new Division 1A applies to any complaint made to the Minister for Local Government that alleges the Councillor is creating a risk to the health and

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safety of other Councillors or Council staff, or is preventing the Council from performing its functions, or is behaving in a manner that does not accord with the role of a Councillor under new section 65.

New section 219AA(1)(b) specifies that new Division 1A applies where an application has been made for a Councillor Conduct Panel for a finding of serious misconduct or to VCAT alleging gross misconduct.

New section 219AA(2) provides that the complainant specified in new section 219AA(1)(a) does not have to be the same person who made an application for serious or gross misconduct under new section 219AA(1)(b).

New section 219AB provides that the Minister may refer a complaint made under new section 219AA(1) to a suitably qualified municipal monitor for investigation. A municipal monitor is suitably qualified if the Minister considers that the monitor has relevant experience or expertise for the purposes of conducting the investigation.

New section 219AC(1) provides that the municipal monitor who has been referred the complaint must conduct and complete an investigation into the complaint within 10 days or such other period agreed to by the by the Minister at the monitor's request.

New sections 219AC(2) and (3) provide that the municipal monitor must give notice to the Councillor who is the subject of the complaint, and the Council Mayor and Chief Executive Officer of the investigation and the period of time to conduct the investigation.

New section 219AC(4) provides that the municipal monitor must, within the period specified or agreed to under section 219AC(1), investigate the complaint and prepare a report with advice and findings as to whether the monitor considers the Councillor is creating a serious risk to health and safety of Councillors or Council staff, is preventing the Council from performing its functions, or is behaving in a manner that does not accord with the role of a Councillor. The report must also include the reasons for the monitor's findings.

New section 219AC(4) also provides that a copy of the report must be provided to the Councillor who is the subject of the complaint and the Minister.

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New section 219AC(5) provides that the municipal monitor's report must also specify that the Councillor may respond to the monitor's findings in the report within 5 days of receiving the report, and the manner in which the response must be given.

New section 219AD provides that the Councillor may respond to the municipal monitor's report within 5 days of receiving a copy of the report, in the manner specified in the report in accordance with new section 219AC(5).

New section 219AE provides that the Minister, after receiving the municipal monitor's report and any response from the Councillor, may recommend that the Councillor be stood down, or take any other action against the Councillor in accordance with the Local Government Act 1989, or take no further action.

New section 219AF(1) provides that the Governor in Council may, by Order in Council, stand down a Councillor on the recommendation of the Minister.

New section 219AF(2) provides that the Minister may make a recommendation under new section 219AF(1) if—

an application alleging serious misconduct or gross misconduct by a Councillor has been made to a Councillor Conduct Panel or VCAT; and

the municipal monitor has provided the Minister a report advising that the Councillor is creating a serious risk to the health and safety of Councillors or Council staff , or is preventing Council from performing its functions, or is behaving in a manner that does not accord with the role of Councillor; and

the Minister is satisfied that the there is a serious risk to the health and safety of Councillors, or the Council will be unable to perform its functions, or is behaving in a manner that does not accord with the role of Councillor.

New section 219AF(3) provides that written notification must be given to the Councillor and the Chief Executive Officer if an Order in Council is made under new section 219AF(1).

New section 219AF(4) provides that if a Councillor is ordered to stand down then the Councillor's allowance will be withheld (but see new section 219AF(8)), and the Councillor must not

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perform the functions and duties, or exercise the powers, of a Councillor including being unable to attend Council meetings, special meetings, assemblies of Councillors or Council premises for the duration of the Order.

New section 219AF(5) provides that an Order to stand down expires—

on the making of a determination by VCAT or a Councillor Conduct Panel; or

on the withdrawal or dismissal of the application, or

on the revocation of the Order in Council; or

6 months after it is made.

New section 219AF(6) provides that, on the advice of a municipal monitor, the Minister can recommend that another standing down Order be made if the Order is due to expire.

New section 219AF(7) provides that a subsequent Order in Council under new section 219AD(6), must not come into operation until the first Order in Council expires but the subsequent Order in Council may be made before the current Order expires.

New section 219AF(8) provides that if a Councillor Conduct Panel or VCAT (whichever applies) hearing the application against the Councillor does not make a finding of serious misconduct or gross misconduct, the allowance withheld from the Councillor under new section 219AF(4) must be returned to the Councillor.

Clause 37 repeals Schedule 5 to the Local Government Act 1989 as a consequence of the insertion of new Divisions 1C and 1D in Part 4 of that Act by clause 34 of the Bill.

Clause 38 amends Schedule 12 to the Local Government Act 1989 to provide that the Governor in Council can make regulations that prescribe—

provisions to be included in a Councillor Code of Conduct;

matters to be included in a Councillor Code of Conduct;

processes for the conduct of the internal resolution procedure of a Council.

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Division 3—Council governance, the Chief Municipal Inspector and municipal monitor

Clause 39 amends section 3(1) of the Local Government Act 1989 to insert definitions for Chief Municipal Inspector and Integrity Minister.

Clause 40 inserts new section 218A in the Local Government Act 1989.

New section 218A(1) provides that the Minister may direct a Council to amend, discontinue or replace governance processes and policies if the Chief Municipal Inspector or a municipal monitor has advised the Minister those processes and policies require improvement and the Minister is satisfied of this based on the advice.

New section 218A(2) provides that the Minister may take a failure to comply with a direction into account for the purpose of recommending that the Council be suspended.

Clause 41 substitutes section 223A of the Local Government Act 1989 to provide that the Integrity Minister may appoint a Chief Municipal Inspector who is employed under Division 5 of Part 3 of the Public Administration Act 2004. Section 223A currently provides for the appointment of inspectors of municipal administration by the Integrity Minister.

New section 223A(2) sets out the following functions of the Chief Municipal Inspector—

investigating and prosecuting possible offences under the Local Government Act 1989;

examining any possible breaches of the Local Government Act 1989;

investigating allegations of Councillor misconduct, serious misconduct and gross misconduct;

making applications for Councillor Conduct Panels to make findings of serious misconduct by a Councillor;

making applications to VCAT for findings of gross misconduct;

any other function conferred on the Chief Municipal inspector by or under the Local Government Act 1989.

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New section 223A(3) provides that the Chief Municipal Inspector has all the powers necessary to perform his or her functions.

New section 223A(4) provides that the Chief Municipal Inspector may delegate his or her powers to any person with appropriate skills or knowledge, other than the power to delegate.

New section 223A(5) provides that a person delegated any power, duty or function by the Chief Municipal Inspector under new section 223A(4), is an inspector of municipal administration.

Clause 42 amends section 223B of the Local Government Act 1989 to replace references to the inspector of municipal administration with references to the Chief Municipal Inspector as a consequence of clause 41. Currently section 223B provides for the powers of inspectors of municipal administration.

Clause 43 amends section 223C of the Local Government Act 1989 to replace references to inspector of municipal administration with references to Chief Municipal Inspector as a consequence of clause 41.

Clause 44 inserts new sections 223CA, 223CB and 223CC in the Local Government Act 1989.

New section 223CA creates the role of municipal monitor.

New section 223CA(1) provides that the Minister may appoint a municipal monitor to a Council.

New section 223CA(2) provides that a municipal monitor will not be subject to the Public Administration Act 2004.

New section 223CA(3) provides that remuneration terms are fixed by the Minister.

New section 223CA(4) and (5) provide that the Minister must give Council notice of the appointment and terms of a municipal monitor and Council must pay the amounts specified in the notice.

New section 223CB(1) specifies that a municipal monitor will have the following functions—

monitoring Council governance processes and practices;

advising a Council about governance improvements a Council could make;

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reporting to the Minister on any steps or actions taken by the Council to improve its governance and the effectiveness of those steps or actions;

investigating any referred complaint under new section 219AB, and advising and reporting on a Councillor in respect of whom the complaint is made, to the Minister in accordance with new section 219AC;

to monitor and report to the Minister any other matters determined by the Minister.

New section 223CC provides for the powers of a municipal monitor which include examining and investigating any matter relating to a Council's operations or to Council elections or electoral matters, a complaint referred by the Minister under new section 219AB and any possible breaches under the Local Government Act 1989. A municipal monitor may also require a person to produce documents, give reasonable assistance in connection with an examination or investigation and to appear for examination on oath and to answer questions before a municipal monitor.

Division 4—Electoral reform

Clause 45 amends section 3(1) of the Local Government Act 1989 by inserting definitions of Electoral Commissioner and returning officer, substituting a new definition of Registrar and repealing the definitions of Electoral Commission, exhibition roll and exhibition roll date (which are no longer mentioned in that Act).

Clause 46 repeals section 21 of the Local Government At 1989 which required voters' lists to be provided prior to the preparation of an exhibition roll. This requirement is redundant as a consequence of clause 48.

Clause 47 substitutes section 22(2) and inserts section 22(3) of the Local Government Act 1989 requiring the Chief Executive Officer of a Council to supply the Registrar with a voters' list of persons entitled to be enrolled on the Council's voters' roll other than State enrolled voters, prior to the final roll being prepared. The Chief Executive Officer is also required to supply the Registrar with any information to assist with the preparation of the final roll when requested.

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Clause 48 repeals section 23 of the Local Government Act 1989 relating to the requirement to prepare an exhibition roll.

Clause 49 amends section 23A of the Local Government Act 1989 as a consequence of clause 48, including removal of the requirement to give public notice about objections to the exhibition roll.

Clause 50 amends section 24 of the Local Government Act 1989 as a consequence of clause 48 and will require the Chief Executive Officer of a Council to supply the Registrar with updated information on voter entitlement changes since the previous voters' list was supplied under subsection 22(2) of that Act and as at the close of the roll.

Clause 51 amends section 24A of the Local Government Act 1989 to make the Registrar responsible for certifying the voters' roll, instead of the Council's Chief Executive Officer.

Clause 52 amends section 24B of the Local Government Act 1989 to make the Registrar responsible for making available the certified voters' roll for public inspection, instead of the Council's Chief Executive Officer.

Clause 53 amends section 24C of the Local Government Act 1989.

Clause 53(1), (2) and (3) amend section 24C(1), (2) and (3) of the Local Government Act 1989 to make it the responsibility of the returning officer to make the certified voters' roll available for use by candidates.

Clause 53(4) omits the requirement for an organisation to receive permission from the Council's Chief Executive Officer for use of the voters' roll on behalf of a candidate, as such use is covered in section 24C(2) and (3) of the Act.

Clause 54 amends section 26 of the Local Government Act 1989 to clarify that the responsibility for preparing the voters' roll which will now rest with the Registrar and not the Council.

Clause 55 amends section 27 of the Local Government Act 1989 to include employees of the Victorian Electoral Commission who may be liable for offences for contravening any provision of Division 2 of Part 3 of the Act.

Clause 56 inserts a new section 29(1)(fb) to provide that a person is disqualified from being a candidate at an election or becoming a Councillor if he or she is disqualified from managing corporations under the Commonwealth Corporations Act 2001.

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Clause 57 repeals section 37A(4) of the Local Government Act 1989 as a consequence of clause 66(2).

Clause 58 amends section 38(1B) of the Local Government Act 1989 to require the Victorian Electoral Commission to be notified of an extraordinary vacancy (in addition to the Minister for Local Government).

Clause 59 amends section 40 of the Local Government Act 1989.

Clause 59(1) amends subsection 40(2) to define a prosecution officer in respect of compulsory voting enforcement, as the Electoral Commissioner or his or her appointee (instead of the Council's Chief Executive Officer or any electoral commission).

Clause 59(2) inserts a new provision that payments received by the prosecution officer in relation to compulsory voting enforcement and prosecutions must be paid to the relevant Council.

Clause 60 inserts a new provision allowing the Victorian Electoral Commission to invoice a Council its reasonable expenses for conducting the Council's election and for the administration, enforcement and prosecution of compulsory voting at that election, but not including the Commission's costs recovered under the Infringements Act 2006.

Clause 61 amends section 43(1)(d) of the Local Government act 1989 as a consequence of clause 66(2).

Clause 62 inserts a new subsection (1)(c) at section 45 of the Local Government Act 1989 enabling the returning officer to dispute the validity of an election.

Clause 63 inserts new section 55D(1A) in the Local Government Act 1989 to provide that the publication of a document of a kind specified in section 55D(1) does not include any document published before the election period and any document required to be published under the Local Government Act. Section 55D(1) prohibits a Council from printing, publishing or distributing any material during the Council election period without the written certification of the Chief Executive Officer.

Clause 64 amends section 82A(2)(ab) of the Local Government Act 1989 to provide that the election period policy prepared under new section 93B inserted by clause 65, must be published on the Council's Internet website.

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Clause 65 inserts new section 93B in the Local Government Act 1989.

New section 93B(1) provides that a Council must prepare, adopt and maintain an election period policy on procedures to be applied by the Council during the election period for a general election.

New section 93B(2) provides that an election period policy must be prepared and adopted by a Council by 31 March 2016 for the general election to be held on 22 October 2016, and for any subsequent general election, no later than 12 months before the commencement of the election.

New section 93B(3) provides that an election period policy must include—

procedures intended to prevent the Council from making inappropriate decisions or using resources inappropriately during the election period;

limits on public consultations and the scheduling of Council events;

procedures to ensure access to information held by Council is made equally available to all candidates to a general election.

New section 93B(4) provides where and to whom a copy of the election period policy must be made available.

New section 93B(5) defines the term inappropriate decisions.

Clause 66 amends clause 1 in Schedule 2 to the Local Government Act 1989 to make the Victorian Electoral Commission as the provider for all council elections and polls under the Act.

Clause 67 amends clause 2 in Schedule 2 to the Local Government Act 1989 as a consequence of clause 66.

Clause 68 amends clause 3 in Schedule 2 to the Local Government Act 1989 as a consequence of clause 66.

Clause 69 amends clause 5 in Schedule 2 to the Local Government Act 1989.

Clause 5(1) in Schedule 2 is amended as a consequence of clause 66.

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Clause 5(1A) in Schedule 2 is amended as a consequence of the repeal of clause 5(1B) of Schedule 2.

Clause 5(1B) in Schedule 2 is repealed. Clause 5(1B) currently provides that a candidate for an election who is unable to sign a declaration required of a candidate in the presence of a returning officer, must provide with the declaration a statutory declaration as to why the candidate cannot sign the declaration before the returning officer.

Clause 5(2) in Schedule 2 is substituted to provide how a candidate for an election must be named in a nomination form.

Clause 5(5) in Schedule 2 is amended as a consequence of amendments made to clause 5(2) in Schedule 2.

Clause 70 amends clause 6 in Schedule 2 to the Local Government Act 1989.

Clause 6(3A) is substituted to provide that the returning officer must reject as being void a nomination from a person to be a candidate for a Council election who is not enrolled on the voter's roll for the municipality. Currently, clause 6(3A) provides that the returning officer must reject a nomination form unless the form is accompanied by a statutory declaration stating the person is entitled to be enrolled and the grounds on which the person is entitled.

Clause 71 substitutes clause 8 in Schedule 2 to the Local Government Act 1989 to provide the circumstances and manner in which a candidate may retire before the declaration of an election or before the day of the election. New clause 8 includes circumstances where the returning officer may retire a candidate in accordance with new clause 9A inserted by clause 72 of the Bill.

Clause 72 inserts new clause 9A in Schedule 2 to the Local Government Act 1989 to provide that the returning officer must send written notice and retire a candidate the returning officer believes is not qualified to be a candidate or may be disqualified from nominating as a candidate.

Clause 73 amends clause 15 in Schedule 2 to the Local Government Act 1989 as a consequence of amendments made by clause 66 of the Bill.

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Clause 74 inserts new clause 24A in Schedule 2 to the Local Government Act 1989 to provide that any nomination fee retained by the returning officer must be paid to the Council.

Clause 75 amends clause 17(1)(c) in Schedule 3 to the Local Government Act 1989 to provide that a scrutineer may be appointed for the conduct of a poll, by the Minister or the returning officer. Currently, the Minister or the Council Chief Executive Officer may appoint a scrutineer.

Division 5—Transitional provisions

Clause 76 inserts new sections 247, 248, 249, 250 and 251 in the Local Government Act 1989 which are transitional provisions.

New sections 247(5), 248(3) and 249(4) define commencement day in those sections to mean the day section 12 of the Amending Act comes into operation. The Amending Act is defined to mean the Local Government Amendment (Improved Governance) Act 2015.

New section 247(1) and (2) provide that if before the commencement day an application has been made under section 81B and a decision has not yet been determined, the Councillor Conduct Panel must hear and determine the application under Divisions 1A and 1B of Part 4 of, and Schedule 5 to, the Local Government Act 1989 as in force immediately prior to the commencement day.

New section 247(3) provides that if after the Councillor Conduct Panel has determined an application under section 247(2), an application to VCAT is authorised under section 81J(1)(b) (as in force immediately before the commencement day), VCAT must hear and determine the application under Divisions 1A and 1B of Part 4 of the Local Government Act 1989 and Part 13B of Schedule 1 to the Victorian Administrative Tribunal Act 1998 as in force immediately prior to the commencement day.

New section 247(4) provides that if, after an application under new section 247(2) is determined, a party affected by the Councillor Conduct Panel decision applies to VCAT for review of that decision, the party's application and VCAT review must be in accordance with Divisions 1A and 1B of Part 4 of the Local Government Act 1989 and Part 13B of Schedule 1 to the

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Victorian Administrative Tribunal Act 1998 as in force immediately prior to the commencement day.

New section 248 provides that VCAT must review a Councillor Conduct Panel decision, where an affected party has applied to VCAT for review of that decision, made before the commencement day in accordance with Divisions 1A and 1B of Part 4 of the Local Government Act 1989 and Part 13B of Schedule 1 to the Victorian Administrative Tribunal Act 1998 as in force immediately before the commencement day.

New section 249(1) and (2) provide that, if an application has been referred to VCAT, made to VCAT or has been authorised to be made to VCAT under sections 81D, 81E, 81J(1)(b) or 81Q of the Local Government Act 1989 before the commencement day and has not been determined by VCAT before that day, then on and after the commencement day VCAT must determine the application in accordance with Divisions 1A and 1B of Part 4 of the Local Government Act 1989 and Part 13B of Schedule 1 to the Victorian Administrative Tribunal Act 1998 as in force immediately before that date.

New section 249(3) provides that if VCAT refers a matter the subject of an application to which section 249 applies to a Councillor Conduct Panel under section 81L (as in force immediately before the commencement day), then the Councillor Conduct Panel formed for the purposes of section 81L may make a direction in accordance with that section as in force before the commencement day.

New section 250(3) defines commencement day to mean the day section 39 of the Amending Act comes into operation. The Amending Act is defined to mean the Local Government Amendment (Improved Governance) Act 2015.

New section 250 provides that if a person appointed as an inspector of municipal administration under section 223A as in force immediately before the commencement day has not concluded their term of appointment immediately before that day, then that person may continue to act as an inspector of municipal administration and exercise the powers and perform the functions of an inspector of municipal administration that are in force immediately before that commencement day until that person's term of appointment ceases.

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New section 251 provides that despite the new electoral amendments made under Division 4 of Part 2 of the Local Government Amendment (Improved Governance) Act 2015, the Local Government Act 1989 continues to apply to any election before the general election on 22 October 2016 as if those amendments had not been made, with the exception of the amendment made by section 65 of the Local Government Amendment (Improved Governance) Act 2015, which inserts new section 93B which requires a Council to adopt an election period policy.

Part 3—Amendment of other Acts

Division 1—Amendment of City of Greater Geelong Act 1993

Clause 77 inserts new section 11DA in the City of Greater Geelong Act 1993 which specifies the functions of the Mayor.

Division 2—Amendment of City of Melbourne Act 2001

Clause 78 amends section 3 of the City of Melbourne Act 2001 to amend the definition of Registrar and repeal the definitions of election day, Electoral Commission, exhibition roll and exhibition roll date.

Clause 79 inserts new sections 9I(1AA) and (1AB) in the City of Melbourne Act 2001 to provide that the Chief Executive Officer may request any person or corporation to provide information orally or in writing to determine the eligibility of a person to be enrolled. Where the information is given in writing, the Chief Executive Officer may require the person sign the information.

Clause 80 substitutes section 11(1) and amends section 11(2) in the City of Melbourne Act 2001 as a consequence of the amendment made by clause 82 of the Bill.

Clause 81 substitutes section 11A(2) in the City of Melbourne Act 2001 as a consequence of the amendment made by clause 82 of the Bill.

Clause 82 repeals section 11B in the City of Melbourne Act 2001. Section 11B requires the Registrar to prepare an exhibition roll.

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Clause 83 amends section 11C in the City of Melbourne Act 2001 as a consequence of the amendment made by clause 82 of the Bill.

Clause 84 substitutes section 11D(2), (3) and (4) in the City of Melbourne Act 2001 to clarify the manner in which a Registrar prepares a voters roll.

Clause 85 amends section 11E of the City of Melbourne Act 2001.

Clause 85(1) repeals section 11E(1)(c). Section 11E(1)(c) provides that a voters' roll may be amended by the Chief Executive Officer if advised by the Victorian Electoral Commission an objection to the voters' roll is valid.

Clause 85(2) makes a technical amendment to section 11E(2) to clarify the reference to section 11E(1).

Clause 85(3) substitutes section 11E(3) to provide that an amendment to the voters' roll under section 11E(1) must be certified by the Chief Executive Officer and the Returning Officer. Section 11E(3) currently provides that the Victorian Electoral Commission must in certain circumstances certify amendments to the voters' roll made under section 11E(1).

Clause 86 amends section 11G of the City of Melbourne Act 2001 to provide that the Chief Executive Officer may only provide a copy of the voters' roll to the Council in specified circumstances.

Clause 87 amends section 12 of the City of Melbourne Act 2001 to make a technical correction to wording relating to the holding of Council general elections.

Clause 88 amends section 14A of the City of Melbourne Act 2001.

Clause 88(1) makes a technical amendment to section 14A(1) to remove reference to redundant provisions.

Clause 88(2) repeals section 14A(2) as a consequence of an amendment made by clause 70 of the Bill.

Clause 89 substitutes the definition of prosecution officer in section 19(6) of the City of Melbourne Act 2001.

Clause 90 inserts new section 20A in the City of Melbourne Act 2001 which specifies the functions of the Lord Mayor.

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Clause 91 repeals Part 4A of the City of Melbourne Act 2001.

Part 4A establishes and specifies matters relating to the operation and function of the Docklands Co-ordination Committee. Following the establishment of the Docklands Community Forum by the Melbourne City Council which provides an improved mechanism for consultation and decision making on matters relating to the Docklands Co-ordination Area, the Docklands Co-ordination Committee is redundant.

Clause 92 inserts new Part 8 in the City of Melbourne Act 2001 which is a transitional provision.

New section 33 in new Part 8 provides that despite the new electoral amendments made under sections 78 to 89 of the Local Government Amendment (Improved Governance) Act 2015, the City of Melbourne Act 2001 continues to apply to any election before the general election on 22 October 2016 as if those amendments had not been made.

Division 3—Amendment of Electoral Act 2002

Clause 93 substitutes section 8(2)(c) of the Electoral Act 2002 with new section 8(2)(c), (ca) and (cb).

New sections 8(2)(c), (ca) and (cb) provide that the functions of the Victorian Electoral Commission in the conduct of Council elections include to produce voters' rolls for elections, to assist the Melbourne City Council with the preparation of the voters' roll and to conduct all elections and polls under the Local Government Act 1989 and the City of Melbourne Act 2001.

Clause 94 inserts new Part 13 in the Electoral Act 2002 which is a transitional provision.

New section 224 in new Part 13 provides that despite the new electoral amendments made under section 93 of the Local Government Amendment (Improved Governance) Act 2015, the Electoral Act 2002 continues to apply to any election before the general election on 22 October 2016 as if those amendments had not been made.

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Division 4—Amendment of Victorian Civil and Administrative Tribunal Act 1998

Clause 95 amends Schedule 1 to the Victorian Civil and Administrative Tribunal Act 1998.

Clause 95(1) amends clause 46E(1) of Schedule 1 to the Victorian Civil and Administrative Tribunal Act 1998 to remove reference to sections 81D and 81J(1)(b) as a consequence of clauses 22 and 25 of the Bill.

Clause 95(2) substitutes clause 46F(1) of Schedule 1 to the Victorian Civil and Administrative Tribunal Act 1998 to remove reference to section 81J(1)(b) as a consequence of clause 25 of the Bill.

Part 4—Repeal of amending Act

Clause 96 provides for the repeal of the amending Act on 1 September 2017. The repeal of the amending 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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