Subdiv 4Conflicts of interest

Subdivision 4—Conflicts of interest 73—Preliminary agency or instrumentality of the Crown includes— (a) an administrative unit of the Public Service; and (b) a body corporate comprised of or including, or having a governing body comprised of or including, a Minister or Ministers of the Crown or a person or persons appointed by the Governor or a Minister or other agency or instrumentality of the Crown; conflict of interest means— (a) a general conflict of interest; or (b) a material conflict of interest; general conflict of interest—see section 74; material conflict of interest—see section 75. 74—General conflicts of interest (1) Subject to section 75A, for the purposes of this Subdivision, a member of a council has a general conflict of interest in a matter to be discussed at a meeting of the council if an impartial, fair‑minded person might consider that the member's private interests might result in the member acting in a manner that is contrary to their public duty. (2) For the purposes of subsection (1)— private interests means any direct or indirect interest of a member that does not derive from their public duty and does not include an interest that is only a matter of personal opinion or belief; public duty means the responsibilities and obligations that a member has to members of the public in their role as a member. 75—Material conflicts of interest (1) Subject to section 75A, for the purposes of this Subdivision, a member of a council has a material conflict of interest in a matter to be discussed at a meeting of the council if any of the following persons would gain a benefit, or suffer a loss, (whether directly or indirectly and whether of a personal or pecuniary nature) depending on the outcome of the consideration of the matter at the meeting: (a) the member; (b) a relative of the member; (c) a body corporate of which the member is a director or a member of the governing body; (d) a proprietary company in which the member is a shareholder; (e) a family company of the member (within the meaning of Schedule 3); (f) a family trust of the member (within the meaning of Schedule 3); (g) a beneficiary under a trust or an object of a discretionary trust of which the member is a trustee; (h) a partner of the member; (i) the employer or an employee of the member; (j) a person with whom the member has entered into, is seeking to enter into, or is otherwise involved in a negotiation or tendering process in connection with entering into, an agreement for the provision of professional or other services for which the member would be entitled to receive a fee, commission or other reward; (k) a person or body from whom the member has received a designated gift; (l) a person of a prescribed class. designated gift means a gift of $500 or more received by the member after the last election at which the member was elected required to be disclosed in a return under section 81A of the Local Government (Elections) Act 1999 or Schedule 1 clause 24A of the City of Adelaide Act 1998. 75A—Exemptions and other matters (1) A member of a council will not be regarded as having a conflict of interest in a matter to be discussed at a meeting of the council— (a) if the interest is held in common with a substantial proportion of the ratepayers, electors or residents of the council area and does not materially exceed the interest held by the other ratepayers, electors or residents; or (b) if the interest in the matter is that of an employer or employee of the member, and the member does not know, and could not reasonably be expected to know, of that interest; or (c) if the interest in the matter is that of a relative of the member, other than the member's spouse or domestic partner, and the member does not know, and could not reasonably be expected to know, of that interest; or (d) if— (i) the interest arises in relation to a prescribed matter or in prescribed circumstances; and (ii) the member complies with the requirements of the regulations (if any) relating to dealing with the matter. (2) Without limiting subsection (1), a member of a council will not be regarded as having a general conflict of interest in a matter to be discussed at a meeting of the council by reason only of— (a) an engagement with a community group, sporting club or similar organisation undertaken by the member in their capacity as a member; or (b) membership of a political party; or (c) membership of a community group, sporting club or similar organisation (if the member is not an office holder for the group, club or organisation); or (d) the member having been a student of a particular school or their involvement with a school as parent of a student at the school; or (e) a nomination or appointment as a member of a board of a corporation or other association, if the member was nominated for appointment by a council. (3) A member of a council who is a member, officer or employee of an agency or instrumentality of the Crown, will be regarded as having a conflict of interest in a matter before the council if the matter directly concerns that agency or instrumentality but otherwise will not be regarded as having an interest in a matter by virtue of being a member, officer or employee of the agency or instrumentality. (4) Regulations under subsection (1)(d)— (a) may be limited to material conflicts of interest or general conflicts of interest, or may relate to conflicts of interest generally; and (b) may make different provision according to the matter or circumstances to which they are expressed to apply. 75B—Dealing with general conflicts of interest (1) If a member of a council has a general conflict of interest in relation to a matter to be discussed at a meeting of the council, the member must deal with the interest in a transparent and accountable way and, in particular, must inform the meeting of— (a) the member's interest in the matter; and (b) whether or not the member proposes to participate in the meeting in relation to the matter; and (c) if the member proposes to participate in the meeting in relation to the matter— (i) how the member intends to deal with the general conflict of interest, including whether the member intends to vote on the matter; and (ii) the member's reasons for participating (and, if relevant, voting) in relation to the matter. (2) If a quorum at a meeting cannot be formed because a member of a council proposes to exclude themself from the meeting in order to comply with subsection (1), the member will not be taken to have contravened subsection (1) by participating (including by voting, for example) in the meeting in relation to the matter if the attendance of the member, together with any other required number of members, forms a quorum for the meeting. (3) If a member of a council discloses a general conflict of interest in a matter to be discussed at a meeting of the council, the following details must be recorded in the minutes of the meeting: (a) the member's name; (b) the nature of the interest, as described by the member; (c) the manner in which the member dealt with the general conflict of interest; (d) if the member voted on the matter, the manner in which the member voted; (e) the manner in which the majority of persons who were entitled to vote at the meeting voted on the matter. (4) To avoid doubt, it is declared that non‑participation in a meeting of a council is not the only way in which a member of the council may appropriately deal in a transparent and accountable way with a general conflict of interest of the member in a matter to be discussed at the meeting. 75C—Dealing with material conflicts of interest (1) If a member of a council has a material conflict of interest in a matter to be discussed at a meeting of the council, the member must— (a) inform the meeting of the member's material conflict of interest in the matter; and (b) leave the meeting room (including any area set aside for the public) such that the member cannot view or hear any discussion or voting at the meeting, and stay out of the meeting room while the matter is being discussed and voted on. (2) However, a member of the council does not contravene subsection (1) by taking part in the meeting if the member— (a) has been granted an approval under subsection (3); and (b) complies with the conditions of the approval. (3) The Minister may grant an approval in writing to a member of the council to take part in the meeting if— (a) because of the number of members subject to the obligation under this section, conduct of the meeting would be obstructed if the approval were not given; and (b) it appears to the Minister to be in the interests of the council's community and area. (4) The Minister may grant an approval under subsection (3) subject to any conditions determined by the Minister. (5) If a member of a council discloses a material conflict of interest in a matter to be discussed at a meeting of the council, the following details must be recorded in the minutes of the meeting: (a) the member's name; (b) the nature of the interest, as described by the member; (c) if the member took part in the meeting under an approval under subsection (3), the fact that the member took part in the meeting. 75D—Application of Subdivision to members and meetings of committees and subsidiaries (1) The provisions of this Subdivision extend to committees and to members of committees established by councils as if— (a) a committee were a council; and (b) a member of a committee were a member of a council. (2) The provisions of this Subdivision extend to subsidiaries and to board members of subsidiaries as if— (b) a board member of a subsidiary were a member of a council. (3) However— (a) a member of a council committee, or a board member of a council subsidiary, who is also a member or employee of the council will not be regarded as having a conflict of interest in a matter to be discussed at a meeting of the committee or subsidiary (as the case requires) by reason only of the fact that the member is a member or employee of the council or constituent council; or (b) a board member of a regional subsidiary who is also a member or employee of a constituent council will not be regarded as having a conflict of interest in a matter to be discussed at a meeting of the regional subsidiary if the relevant benefit or loss would be enjoyed or suffered in common with all or a substantial proportion of the constituent councils. Division 2—Member behaviour 75E—Behavioural standards (1) The Minister may, by notice published in the Gazette and on a website determined by the Minister, establish standards (the behavioural standards) that— (a) specify standards of behaviour to be observed by members of councils; and (b) provide for any other matter relating to behaviour of members of councils. (2) The behavioural standards may also specify requirements applying to behavioural support policies and behavioural management policies of councils. (3) A member of a council must comply with the behavioural standards. (4) The Minister may, by further notice published in the Gazette and on the website referred to in subsection (1), vary or substitute the behavioural standards. (5) The Minister must, before establishing, varying or substituting the behavioural standards— (a) consult with the LGA; and (b) undertake such other consultation as the Minister thinks fit, on the behavioural standards, variation or substitute behavioural standards (as the case may be). (6) A notice published under subsection (1) or (4) may come into operation on the day on which it is published in the Gazette or on a later day or days specified in the notice. (7) Sections 10 (other than subsection (1)) and 10A of the Legislative Instruments Act 1978 apply to a notice published under subsection (1) or (4) (and a reference in those provisions to a regulation will be taken to be a reference to a notice published under subsection (1) or (4) (as the case requires)). 75F—Council behavioural support policies (1) A council may prepare and adopt policies designed to support appropriate behaviour by members of the council (behavioural support policies). (2) A behavioural support policy may— (a) specify directions relating to behaviour that must be observed by members of the council; and (b) set out guidelines relating to compliance by members with the behavioural standards and directions under paragraph (a); and (c) include any other matter relating to behaviour of members considered appropriate by the council. (3) A behavioural support policy— (a) must not be inconsistent with the behavioural standards; and (b) must comply with any requirement specified by the behavioural standards. (4) A member of a council must comply with the council's behavioural support policies. (5) A council may from time to time alter a behavioural support policy, or substitute a new policy. (6) Before a council— (a) adopts a behavioural support policy; or (b) alters, or substitutes, a behavioural support policy, the council must undertake public consultation on the behavioural support policy, alteration or substituted policy (as the case may be). (7) A council must, within 6 months after the conclusion of each periodic election— (a) in the case of a council that has 1 or more behavioural support policies in effect under this section—review the operation of the behavioural support policies and consider whether it should adopt additional behavioural support policies; or (b) in any other case—consider whether it should adopt behavioural support policies. Division 3—Health and safety duties 75G—Health and safety duties (1) A member of a council must— (a) take reasonable care that the member's acts or omissions do not adversely affect the health and safety of other members of council or employees of the council; and (b) comply, so far as the member is reasonably able, with any reasonable direction that is given by a responsible person for the purposes of ensuring that the member's acts or omissions do not adversely affect the health and safety of other members of the council or employees of the council. (2) For the purposes of subsection (1)(b), the responsible person is— (a) if the person whose health and safety may be adversely affected is an employee of the council—the chief executive officer of the council; or (b) if the person whose health and safety may be adversely affected is the principal member of the council—the deputy or another member chosen by the council; or (c) if the person whose health and safety may be adversely affected is another member or the chief executive officer of the council— (i) unless subparagraph (ii) applies, the principal member of the council; or (ii) if the relevant acts or omissions are those of the principal member of the council—the deputy or another member chosen by the council. (3) Without limiting subsection (1)(b), a reasonable direction may include a direction that a member of a council not attend a meeting of the council or a council committee (and a member the subject of such a direction will be taken to have been granted leave of absence from attending council meetings for the duration of the direction). (4) However, a reasonable direction under subsection (1)(b) that a member not attend a meeting of a council may only be given if there are no other reasonable directions considered appropriate in the circumstances to ensure the health and safety of the affected person. (5) If a reasonable direction under subsection (1)(b) that a member not attend a meeting of a council is given, the responsible person must ensure that a complaint relating to the matter is referred to the Behavioural Standards Panel. (6) This section is in addition to and does not limit the operation of the Work Health and Safety Act 2012. health has the same meaning as in the Work Health and Safety Act 2012. Part 5—Allowances and benefits 76—Allowances (1) Subject to this Act, a member of a council is entitled to the allowance determined by the Remuneration Tribunal in relation to the member's office and indexed in accordance with this section. (2) The Remuneration Tribunal must make determinations under this section on a 4 yearly basis before the designated day in relation to each set of periodic elections held under the Local Government (Elections) Act 1999. (3) The Remuneration Tribunal must, in making a determination under this section, have regard to the following: (a) the role of members of council as members of the council's governing body and as representatives of their area; (b) the size, population and revenue of the council, and any relevant economic, social, demographic and regional factors in the council area; (ba) the ratio of members to ratepayers; (c) the fact that an allowance under this section is not intended to amount to a salary for a member; (d) the fact that an allowance under this section should reflect the nature of a member's office; (e) the provisions of this Act providing for the reimbursement of expenses of members. (4) For the purposes of the proceedings before the Remuneration Tribunal but without derogating from the operation of subsection (3), the allowances to be determined under this section will be taken to be in the nature of a fee under the definition of remuneration in the Remuneration Act 1990. (5) Without limiting section 10 of the Remuneration Act 1990, the Remuneration Tribunal must— (a) allow persons who are entitled to be enrolled on the voters roll for an area a reasonable opportunity to make submissions orally or in writing to the Tribunal in relation to a determination under this section that relates to the members of the council for that area; and (b) allow the LGA a reasonable opportunity to make submissions orally or in writing to the Tribunal in relation to any determination under this section. (6) Nothing in subsection (5) requires the Remuneration Tribunal, for the purposes of making all determinations required under this section in any 4 year period, to hold more than 1 hearing to receive any oral submissions that persons may care to make (and the Tribunal is not required to hold any hearing if it appears to the Tribunal that no one is seeking to make oral submissions). (7) The rates of allowances may vary from office to office, and from council to council. (8) An allowance determined under this section will, in relation to the members of a particular council, be payable for the period— (a) commencing on the conclusion of the relevant periodic election; and (b) concluding at the time at which the last result of the next periodic election is certified by the returning officer under the Local Government (Elections) Act 1999 (including in respect of a member of the council for whom the conclusion of the next periodic election is, for other purposes, the last business day before the second Saturday of November of the year of the periodic election as a result of the operation of section 4(2)(a)). (9) An allowance determined under this section is to be adjusted on the first, second and third anniversaries of the relevant periodic elections to reflect changes in the Consumer Price Index. (10) Sections 17 and 19 of the Remuneration Act 1990 do not apply in relation to a determination under this section. (11) Subject to subsection (8), a member of a council who holds an office for part only of the period in respect of which an allowance is payable is entitled to the proportion of the allowance that the period for which the member held the office bears to the total period. (12) An allowance under this section is to be paid in accordance with any requirement set out in the regulations (unless the member declines to accept payment of an allowance). (12a) Amounts must be withheld from the payment of allowances to a member of a council, and paid to the Commissioner of Taxation in accordance with the Pay as you go system under the Taxation Administration Act 1953 of the Commonwealth, if— (a) that system contemplates amounts to be withheld from such payments; and (b) the member requests, in accordance with any requirements of the council, that such withholding occur. (13) Despite any other Act or law, the reasonable costs of the Remuneration Tribunal in making a determination under this section are to be paid by the LGA under an arrangement established by the President of the Tribunal after consultation with the LGA. (13a) The LGA may recover the reasonable costs incurred by the Remuneration Tribunal in making a determination under this section as a debt from the councils to which the determination relates. (14) Regulations made for the purposes of this section may make different provision according to the offices or classes of council to which they are expressed to apply. (15) In this section— Consumer Price Index means the Consumer Price Index (All groups index for Adelaide) published by the Australian Bureau of Statistics; designated day, in relation to particular periodic elections, means the day that is 14 days before the day on which nominations close for those elections. 77—Reimbursement of expenses (1) A member of a council is entitled to receive from the council— (a) reimbursement of expenses of a kind prescribed for the purposes of this paragraph incurred in performing or discharging official functions and duties; and (b) reimbursement of expenses of a kind prescribed for the purposes of this paragraph, and approved by the council (either specifically or under a policy established by the council for the purposes of this section), incurred in performing or discharging official functions and duties; and (c) reimbursement of expenses (not exceeding the prescribed amount) incurred by the member in producing printed material in prescribed circumstances or of a prescribed kind (other than excluded material) necessary for engaging with the community in relation to local government matters. (2) A policy under subsection (1)(b) lapses at a general election of the council. excluded material means— (a) electoral material within the meaning of the Local Government (Elections) Act 1999; or (b) material produced or distributed between the close of nominations and the close of voting for a general election of a council or a periodic election. 78—Provision of facilities and support (1) A council may provide facilities and other forms of support to its members to assist the members in performing or discharging official functions and duties. (2) The provision of facilities and services under this section is at the discretion of the council subject to complying with the following requirements: (a) the council must specifically resolve that the provision of the facilities or services is necessary or expedient to the performance or discharge of official functions or duties; (b) facilities and services must be available to members on a uniform basis (other than facilities or services specifically provided for the benefit of the principal member); (c) any property provided to a member remains the council's. (3) A member of a council must not use a facility or service provided by the council under this section for a purpose unrelated to the performance or discharge of official functions or duties (unless the use has been approved by the council and the member has agreed to reimburse the council for any additional costs or expenses associated with this use). 79—Register of allowances and benefits (1) The chief executive officer of a council must ensure that a record (the Register of Allowances and Benefits) is kept in which is entered, in accordance with principles (if any) prescribed by the regulations, in respect of each member of the council— (a) the annual allowance payable to the member; and (b) details of any expenses reimbursed by the council under section 77(1)(b) or (c); and (c) details of other benefits paid or payable to, or provided for the benefit of, the member by the council. (2) The chief executive officer must ensure that an appropriate record is made in the Register, in accordance with principles prescribed by the regulations, in respect of— (a) changes in the allowance or a benefit payable to, or provided for the benefit of, members; or (b) the provision of a reimbursement (other than a reimbursement under section 77(1)(a)) or benefit not previously recorded in the Register. 80—Insurance of members A council must take out a policy of insurance insuring every member of the council, and a spouse, domestic partner or another person who may be accompanying a member of the council, against risks associated with the performance or discharge of official functions or duties by members.