Background

‘Improper conduct’ means behaviour that is corrupt or improper for other reasons, an example being a substantial mismanagement of public resources.

The following lists the Parts of the Act relating to Improper Conduct.
Part 6 Division 1 Improper conduct
123 Misuse of position
124 Directing a member of Council staff
125 Confidential information

New requirements under the Local Government Act 2020

The following list provides the Parts of the Act that have new requirements. These are shown in bold. While there are minor wording differences between the 1989 and 2020 Act, the changes have been written into the Act to give substantial meaning. The following information is provided to enable councils to understand the changes that have occurred and implement the new requirements.

Section 123 (replaces section 76D)

(1) prohibits a Councillor or a member of a delegated committee from misusing their position for gain or to cause detriment. The maximum penalty for an offence is 600 penalty units or imprisonment for 5 years.

subsection (1) is an indictable offence.

(3) describes actions that constitute a misuse of position including making improper use of Council information or of public funds. This is not intended to be an exhaustive list.

(f) participating in a decision on a matter in which the person has a conflict of interest differs from the 1989 Act - [(f) failing to disclose a conflict of interest as required under this Division].

(4) states that this clause applies in addition to any Act or law relating to criminal liability of Councillors and delegated committee members. (Note - Under the 2020 Act, delegated committees have replaced special committees).

Section 124 (replaces section 76E)

Makes it an offence for a Councillor to direct or seek to direct a member of Council staff in the performance of specified types of tasks and specifies a maximum penalty level.

Section 125 (replaces section 77)

(1) prohibits and prescribes a maximum penalty for the disclosure of confidential information by a person who is or has been—

  • a Councillor;
  • a member of a delegated committee; or
  • a member of Council staff.

The provision has been extended to include Council staff as they, like councillors and members of delegated committees, regularly have access to confidential information in performing their roles and responsibilities.

The prohibition applies to disclosure that is intentional or reckless and where the person knows or should reasonably know the information is confidential information. Confidential information is defined under Section 3.

(2) specifies that (1) does not apply where the Council has determined the information should be publicly available.

(3) describes a number of circumstances where disclosing confidential information is not an offence, including when it is required by a Commission of Inquiry, for the purposes of a Councillor Conduct Panel hearing or for the purposes of an internal arbitration or by the Chief Municipal Inspector.

Commencement of arrangements

Local Government Act 2020 –

Section 123 to 125

commence 24 October 2020

Local Government Act 1989 -

Sections 76D, 76E, and 77

repealed 24 October 2020

Transitional arrangements

Not applicable.