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Governance Workshop

Governance Workshop. Media Workshop October 2012. Today we will cover:. Session 1: Elections governance Session 2: The incoming council Session 3: Conflicts and natural justice. Session 1: Elections governance - References to sections are to sections of the Local Government Act 1989 .

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Governance Workshop

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  1. Governance Workshop Media Workshop October 2012

  2. Today we will cover: Session 1: Elections governance Session 2: The incoming council Session 3: Conflicts and natural justice

  3. Session 1: Elections governance - References to sections are to sections of the Local Government Act 1989. - References to regulations are to regulations of the Local Government (Electoral) Regulations 2005.

  4. Caretaker period • Caretaker period [s. 3]: midnight 25September - 6 pm on 27 October • Caretaker provisions are intended to ensure that councils will not use public resources in election campaigning or make major decisions that may bind the incoming council. • Restrictions on decisions [s.93A] unless a council is granted a ministerial exemption: • CEO employment contracts • Contracts for goods and services with a value of $150K or more and contracts for works with a value of $200K or more - or 1% of rates and charges whichever is the higher. • Entrepreneurial enterprises: where the value of the contribution exceeds $100K or 1% of rates and charges.

  5. Caretaker period Requirement on electoral material [s. 55] • Council must not publish electoral or election ads, handbills, pamphlets or notices unless the name and address of the person authorising this appears at its end. Certification of documents [s. 55D] • The CEO must certify documents including council newsletters; advertisements and notices; media releases; leaflets and brochures; and mail-outs to multiple addressees. • The CEO must not certify an electoral advertisement, handbill, pamphlet or notice unless it only contains information about the election process.

  6. Caretaker period Election period policy • Councils are recommended by the Department of Planning and Community Development to develop an appropriate policy to ensure that council resources (staff, property & equipment, stationery) are not used for electioneering purposes. • In August 2012, the Local Government Investigations and Compliance Inspectorate undertook a review of the proposed ‘caretaker’ arrangements in all councils. Of the 78 councils going to elections, 74 had a current election period policy. The report on the review can be downloaded from the LGICI website.

  7. Candidate requirements Entitlement to nominate [ss. 11, 18, 29] • A person may stand as a candidate if they are entitled to be on the voters’ roll in respect of any ward of the council in which the election is being conducted. • The CEO’s Voters’ Roll records entitlements for property owners or occupiers who are obliged to pay the rates and charges. This allows non-resident property owners or investors and occupiers to nominate as long as they meet the citizenship requirement. • It is an offence to nominate if you are not entitled to. This is punishable by a prison term of up to 2 years or a fine of up to 240 penalty units.

  8. Candidate requirements Dummy candidates • The Local Government Act 1989 does not prohibit dummy candidates. Anyone with an entitlement to nominate may nominate and it could be undemocratic to restrict the rights of a person with a valid entitlement. Further, any prohibition would be difficult if not impossible to enforce. How-to-Vote cards [r. 26-31] • How-to-Vote cards are relevant only for attendance voting and must be submitted to the Returning Officer for registration. • It is illegal to distribute unregistered How-to-Vote cards. The penalties for doing so are severe and include disqualification from acting as a councillor for 7 years. How-to-Vote cards may be submitted to the Returning Officer for registration from 26 September till midday on 19 October.

  9. Candidate requirements Candidate Statements [r. 32-40] • Candidate Statements are only relevant for postal voting. • Candidates may submit a Candidate Statement to the Returning Officer for inclusion with the postal ballot material at the time of nomination. • Candidates must declare that their Statement is correct, does not contain any false or defamatory statements or matter that may mislead a voter. • Candidates making a false declaration may be prosecuted [s 238A] and fined. • The VEC has published all Candidate Statements on its website. Authorisation of material [s. 55] • All electoral material that is printed, published or distributed must be authorised by a person and a street address included in the authorisation. Exclusions apply to car stickers, clothing, lapel buttons and badges, fridge magnets, pens and pencils, and balloons.

  10. Media obligations Paid election advertising [s. 55B] • All paid election advertising must be identified as advertising with the word ‘advertising’ printed as a headline to that advertisement. Election articles, reports and letters [s. 55C] • The name and suburb/locality of address of authors of election articles, reports and letters [such as letters to the editor] must be set out at the end of the document. • Exclusions apply to leading articles and articles that consist of a report of a meeting and does not contain electoral matter other than a comment made by a speaker at the meeting.

  11. Campaign donations Thresholds [s. 3] • The threshold for the disclosure of campaign donations [ss. 62-62B] and gifts are set under the LG Act. The current threshold is $500 per gift per donor. • However, if a single donor makes multiple donations, then the multiple donations must be treated as a single donation and aggregated [s. 62(5)]. Disclosure of campaign donations [s. 62] • All candidates must within 40 days after election day (6 December ) give the council’s CEO an election campaign donation return for the donation period. • Exclusions apply to gifts made in a private capacity to a candidate for the candidate’s personal use and the candidate has not used the donation solely or substantially for election purposes.

  12. Campaign donations Donation period [s. 62(6)] • The donation period for a new candidate is from 30 days after the last election, (29 December 2008) to 30 days after election day (26 November). • The donation period for a re-nominating councillor is longer- from 30 days after the last election they contested in to 30 days after election day. Public Disclosure [s. 62A(3)] • The CEO must ensure that the election campaign donation returns are available for public inspection for four years from the date that it is given. • The Local Government Legislation Amendment (Miscellaneous) Bill 2012 proposed that a summary of all election campaign donation returns be made available on the council’s website within 14 days after the period specified for their being given to the CEO. As of 8 October, the Bill had not been passed, so this requirement is not mandatory yet.

  13. Complaints, investigations and election disputes Complaints • Generally complaints arise around a candidate’s entitlement to nominate, unregistered How-to-Vote cards, untruthful Candidate Statements, misleading and/or deceptive material issued by candidates and/or other persons. • The LGICI has the responsibility for investigating alleged breaches of the Local Government Act 1989 and the Local Government (Electoral) Regulations 2005. Election Disputes [ss. 44-49] • A candidate or 10 voters who dispute the validity of the election may apply for an inquiry into the election by a Municipal Electoral Tribunal.

  14. Session 2: The incoming council

  15. Code of conduct and conduct panels The LG Act establishes principles of conduct for councillors. The primary principle established that a councillor must: • act with integrity • exercise his or her responsibilities in the interests of the community • not improperly seek to confer an advantage or disadvantage on any person. Additionally, a councillor must : • avoid conflicts between public duties and personal interests • act honestly and avoid statements or actions that will or are likely to mislead • aim to ensure that public resources are used prudently and in public interest • act lawfully and in accordance with the trust placed in him or her as an elected representative • 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.

  16. Code of conduct and conduct panels In addition to the LG Act principles of councillor conduct, there is a statutory obligation for all councils to develop and approve a Councillor Code of Conduct which: • must include the councillor conduct principles • may set out processes for the purpose of resolving an internal dispute between councillors • must include provisions in respect of any matter prescribed for the purpose of this section • may include any other matters relating to the conduct of councillors which the council considers appropriate.

  17. Mayoral role • The mayor is a councillor elected by the council to lead the council for a term of one year. This excludes Melbourne City Council and Greater Geelong City Council which have directly elected mayors. • In addition to their role as councillor, the mayor has the following responsibilities: • Leading the council • Enhancing good governance • Building external and media relations • Promoting civic and institutional pride • Supporting and engaging with the community • Facilitating the process of governing

  18. Register of interests Councillors are obliged to submit a primary return which outlines all registrable interests to the CEO within 30 days of election day, or seven days of making the oath of office of a councillor – whichever is later. Councillors are also obliged to submit an ordinary return which outlines all registrable interests to the CEO on or within 40 days after 30 June, and on or within 40 days after 31 December. Penalties apply for not doing so. A register of interests including the last three returns must be maintained by the CEO. A person may make a written application to inspect a register at the council offices during normal business hours.

  19. Meeting procedures The Local Government Act 1989 lays down the fundamental requirements of council meetings. This includes the requirement that each council must make a local law to govern the conduct of its council meetings and special committee meetings. A council may hold two kinds of meetings: • ordinary meetings at which general business of the council may be transacted • special meetings at which only the business specified in the notice calling the meeting may be transacted. Any meeting of a council, or a special committee, must be open to the public. The LG Act outlines specific circumstances where a council or special committee can resolve that a meeting be closed to the public.

  20. Meeting procedures Assembly of councillors • The LG Act allows informal sessions at which councillors may be briefed on matters that are intended or likely to be the subject of a decision of the council. • As they are not meetings of the council, no decisions can be made. Quorum • Quorum means the minimum number of councillors required to be present for a valid meeting of council. It is determined by each council. • The MAV Model Local Law suggests a quorum of the majority of councillors capable of being elected to that council as currently constituted.

  21. Meeting procedures Rescission and alteration of resolutions • The LG Act does not make provision for rescinding a council resolution. • Nevertheless, there is a common law procedure that allows a body to rescind a decision. • Under these rules a council should only rescind a decision if it has not acted upon or communicated it. • An alternative to rescission may be a motion which amends an earlier decision, such as varying a policy adopted by council. • Generally, a council’s local law will make provision for the rescission of a decision. • A resolution should only be rescinded in accordance with procedures set out in the local law.

  22. Council plan • The Council Plan is a rolling four-year document that is reviewed every year • This Plan is a statutory requirement which describes the strategic objectives and strategies to be implemented by a council for the coming year, as well as the following four years. Strategic Resource Plan • Is included as part of a Council Plan. • Sets out the financial and human resources required to achieve the objectives contained in a Council Plan over five financial years. Council Budget • The budget process involves a council setting its priorities, identifying measures and allocating funds that will show how the key strategic objectives outlined in its Council Plan are to be achieved in the coming year.

  23. Councillor allowances • Councillors receive an allowance. Each council determines the amount to be paid to councillors within minimum and maximum limits set by the Victorian Government. These limits vary based on the revenue and population of each council. • Mayors receive a larger allowance due to their increased role and workload. • Allowances are adjusted annually by the Government, with new allowances to apply from 27 October 2012:

  24. Resources and professional development • Councils are required to provide administrative support, resources, facilities and reimbursement of a councillor’s travel and out-of-pocket expenses. These include: • administrative support, an office and a vehicle for the mayor • a computer, mobile phone, landline phone, access to fax and photocopier for all councillors • reimbursement of travel, phone, internet and childcare expenses. • Councillors can deduct expenses relevant to their election costs (to a maximum of $1 000) and activities as a councillor. • Approval is required for all councillors undertaking discretionary trips and interstate travel and attendance at conferences. At a minimum, the CEO should be the approval authority in accordance with the council’s predetermined policy. • All overseas travel should be by resolution of full council.

  25. Session 3: Conflicts and natural justice

  26. Conflict of Interest A councillor: • must declare any interest in any manner that comes before a council meeting, special committee or assembly of council • where a conflict exists, must remove themselves from the meeting and from decision making on that matter • interests include: direct; indirect; close association; indirect financial interest; conflicting duties; applicable gifts. • For further information read Local Government Victoria’s Conflict of Interest guide.

  27. Unbiased decision-making Remaining unbiased • common law requirement to remain open to persuasion notwithstanding previously held views • entitled to express a view, but must be prepared to reconsider in light of evidence and arguments • if not, the council decision can be overturned by a court. • Winky Pop decision of the Supreme Court November 2007 – Individual councillor appeared as a submitter before a panel. • For further information read the Ensuring Unbiased Democratic Council Decision Making guide.

  28. Types of decisions affected Broad policy decisions that affect members of the municipality generally are not affected. These include: • A rates policy • A service charge for a specific facility • A neighbourhood character planning policy Administrative decisions that have the potential to affect the rights and interests of a person, business or corporation specifically are affected. For example: • A decision to grant or refuse a planning permit for a specific project • A decision to make an alteration to the application of a planning scheme to a particular area of land owned by an individual or corporation • A decision to exempt a person from complying with the provisions of a local law.

  29. Misuse of Position Misuse of position involves a councillor: • gaining or attempting to gain advantage for themselves • seeking to cause detriment to the council or another person. Misuse of position can include: • improper use of information, public funds or resources • unauthorised exercise of power • disclosing confidential information • improper direction and influence of a council officer.

  30. Finding out more…. • http://goodgovernanceguide.org.au • http://www.vec.vic.gov.au/ • http://www.dpcd.vic.gov.au/localgovernment • http://www.mav.asn.au/policy-services/governance

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