code of conduct referral means the referral of a code of conduct complaint from –
(a) an initial assessor to the Director under section 28ZBA ; or
(b) an investigating Panel to the Director under section 28ZHA ;
decision-maker includes the following persons:
(a) an initial assessor;
(b) an investigating Panel;
(c) the Director;
(d) the Tasmanian Civil and Administrative Tribunal.
28ZR.Serious councillor misconduct
(1) For the purposes of this Act, serious councillor misconduct means conduct, or an attempt to engage in conduct, by a councillor that is or involves a serious or significant contravention of the code of conduct.
(2) For the purposes of subsection (1), a decision-maker is to have regard to the following when determining whether conduct, or an attempt to engage in conduct, by a councillor constitutes a serious or significant contravention of the code of conduct:
(a) whether the conduct is unlawful;
(b) the extent of any actual or potential harm or risk, caused as a consequence of the conduct, to an individual, the council or public safety;
(c) the degree to which the conduct impacts negatively on the ability of the relevant council to perform its functions under this or any other Act;
(d) whether the conduct involves –
(i) deliberate and intentional misuse of council resources, information, or authority, for personal gain; or
(ii) undue influence on, or detriment to, the council, community or a community member;
(e) the nature and extent of any material benefit or detriment derived by the councillor or others as a result of the conduct;
(f) whether the conduct is part of a repeated pattern of contraventions or involves collusion with others, and the councillor’s role in such collusion;
(g) such other public interest considerations that the relevant decision-maker considers relevant.
28ZS.Ministerial guidelines in relation to serious councillor misconduct
(1) The Minister, by order, is to issue guidelines consistent with this Act to assist decision-makers in determining whether conduct, or an attempt to engage in conduct, by a councillor constitutes a serious or significant contravention of the code of conduct.
(2) A decision-maker may have regard to any guidelines issued by the Minister under this section.
(3) The Minister, by order, may amend, revoke, or revoke and substitute any guidelines made under this section.
(4) Before making, amending or revoking and substituting an order, the Minister must consult with –
(a) councils; and
(b) the public –
as to the matters that the Minister is considering including in the order, the amended order or the substitute order.
Subdivision 2 - Assessment of serious councillor misconduct
28ZT.Assessment of serious councillor misconduct
(1) If the Director receives a code of conduct referral from an initial assessor or an investigating Panel in respect of the conduct of a councillor, the Director must carry out an assessment of that conduct to determine whether to conduct an investigation.
(2) After carrying out an assessment, the Director may –
(a) if the Director determines that the conduct of the councillor is capable of amounting to serious councillor misconduct, determine that the Director will conduct an investigation into that conduct; or
(b) if the Director determines that the conduct is not capable of amounting to serious councillor misconduct, refuse to conduct an investigation into the conduct; or
(c) refer the complaint to another person or authority if the Director considers that the complaint would be more appropriately dealt with by that other person or authority.
(3) If the Director makes a determination under subsection (2)(a) –
(a) the complaint is taken to be a complaint made to the Director under section 339E and ceases to be a code of conduct complaint; and
(b) the Director is to proceed under that section and section 339EA in relation to the complaint.
(4) If the Director refuses under subsection (2)(b) to commence an investigation into a councillor’s conduct, the Director must refer the matter back to the initial assessor or the investigating Panel for the code of conduct complaint.
(5) If the Director does not make a decision under subsection (2) within 28 days of receiving a code of conduct referral, the Director is to notify the initial assessor or the investigating Panel and the complainant that the matter is still under consideration.
28ZU.Determination of Director following investigation of councillor conduct
(1) After completing an investigation into a councillor’s conduct following a code of conduct referral, the Director may do any of the following:
(a) make an application to the Tasmanian Civil and Administrative Tribunal under section 28ZW ;
(b) refer the matter back to the initial assessor or the investigating Panel that made the initial referral;
(c) refer the matter to any other person or authority;
(d) dismiss the complaint.
(2) A complaint that has been referred back to an initial assessor or an investigating Panel under subsection (1)(b) is taken to be a code of conduct complaint and ceases to be a complaint to the Director under section 339E.
28ZV.Referral of complaints back to initial assessor or investigating Panel
(1) If a complaint is referred back to an initial assessor or an investigating Panel under section 28ZT or 28ZU –
(a) the Director must provide reasons to the initial assessor or investigating Panel for the referral; and
(b) if the complaint is referred back to an initial assessor, the initial assessor is to proceed under section 28ZA in relation to that complaint within 14 days after the referral of the matter; and
(c) if the complaint is referred back to an investigating Panel, the investigating Panel is to proceed with the investigation and determination of the complaint.
(2) On doing a further initial assessment under section 28ZA as required by subsection (1)(b) –
(a) the initial assessor is to comply with section 28ZA as if doing a first initial assessment; and
(b) if the initial assessor determined on the original initial assessment to investigate a part of the code of conduct complaint and had notified the councillor against whom the complaint was made of that determination, the initial assessor is to notify the councillor of the result of the further initial assessment in addition to any other notice that the initial assessor is required to provide under section 28ZA .
(3) If a complaint is referred back to an investigating Panel under section 28ZT or 28ZU, the investigating Panel is to notify the complainant and the councillor against whom the complaint is made of the referral back to the Panel as soon as practicable.
(4) On resuming or continuing an investigation under subsection (1)(c), the investigating Panel may give any directions it considers necessary for the fair and efficient investigation and determination of the complaint.
Subdivision 3 - Tribunal
28ZW.Application to the Tasmanian Civil and Administrative Tribunal
(1) If, following an investigation under section 339EA, the Director considers that the conduct of a councillor amounts to serious councillor misconduct, the Director may make an application to the Tasmanian Civil and Administrative Tribunal for a decision in relation to the matter.
(2) An application –
(a) is to be made in writing; and
(b) is to specify the particulars upon which the application is based; and
(c) is to specify the orders sought and the grounds for seeking those orders; and
(d) is to be lodged with the Registrar, within the meaning of the Tasmanian Civil and Administrative Tribunal Act 2020.
(3) The Director must, as soon as reasonably practicable after making an application under this section in respect of the conduct of a councillor, give a copy of that application to the councillor.
(4) Unless otherwise specified in this Act, the provisions of the Tasmanian Civil and Administrative Tribunal Act 2020 apply in relation to an application made to the Tasmanian Civil and Administrative Tribunal under this section.
(5) At the hearing of an application under this Subdivision, a party to the application may be represented by an Australian legal practitioner.
28ZX.Orders of the Tasmanian Civil and Administrative Tribunal
(1) If, after hearing an application under this Division in respect of a councillor, the Tasmanian Civil and Administrative Tribunal determines that a councillor has engaged in serious councillor misconduct, the Tribunal may make a finding of serious misconduct against the councillor and may make any one or more of the following orders:
(a) cautioning or reprimanding the councillor;
(b) requiring the councillor to apologise to the complainant or other person affected by the contravention of the code of conduct, in the manner and form specified by the Tribunal;
(c) requiring the councillor to participate in counselling or undertake a training course;
(d) prohibiting the councillor from nominating as a candidate at any ordinary election or by-election for a period not exceeding 4 years;
(e) dismissing the councillor from office;
(f) suspending the councillor from office for a period of not less than 3 months but not more than 6 months;
(g) imposing on the councillor a fine not exceeding an amount equivalent to 50 penalty units.
(2) If the Tasmanian Civil and Administrative Tribunal makes a finding of serious misconduct against a councillor, it may make an order that all or any of the costs of proceedings be paid by the councillor and in making such an order must take into account the nature and severity of the misconduct.
(3) If, after hearing an application under this Division in respect of a councillor, the Tasmanian Civil and Administrative Tribunal determines that the councillor has not engaged in serious councillor misconduct but has contravened the code of conduct, the Tribunal may make a finding of misconduct against the councillor and may make any one or more of the following orders:
(a) cautioning or reprimanding the councillor;
(b) requiring the councillor to apologise to the complainant or other person affected by the contravention of the code of conduct, in the manner and form specified by the Tribunal;
(c) requiring the councillor to attend counselling or a training course;
(d) suspending the councillor from office for a period not exceeding 3 months.
(4) If the Tasmanian Civil and Administrative Tribunal makes a finding against a councillor under subsection (3), the Tribunal may decline to make an order under that subsection if satisfied that it is not reasonable in the circumstances to make such an order.
(5) A person who, without reasonable excuse, contravenes an order made under subsection (1) or (3) is guilty of an offence.
Penalty: Fine not exceeding 50 penalty units.
(6) For the avoidance of doubt, the making of an order by the Tasmanian Civil and Administrative Tribunal under this section is within the original jurisdiction of the Tribunal.