Local Government (Appointment and Performance of General Managers) Order 2024

The order introduces or refines several key concepts that define how Tasmania’s local government general manager appointments and performance reviews must operate.

General manager: The term is not defined in this order; it derives from the Local Government Act 1993. The general manager is the chief executive officer of the council, responsible for implementing council decisions and managing staff. The order treats the role as one of sufficient importance to warrant mandatory process safeguards.

Selection panel: A body appointed by the council specifically to handle the appointment process. The order imposes composition rules: a majority of the panel must be councillors. Non councillors may be appointed to the panel if they have relevant skills and experience. The mayor must lead the panel. The panel’s role is to evaluate applicants, manage conflicts, and make recommendations to the council. The panel’s work culminates in a recommendation and a report that must be recorded in council minutes.

Selection panel members: Defined in clause 6(1) as the councillors and other persons (non councillors) appointed to the selection panel by the council under subclauses (2)(b) or (c). This definition is important for conflict of interest rules and replacement obligations.

Relevant person: Defined in clause 6(1) as a person engaged by the council under subclause (2)(c) who is not also a selection panel member, or a person providing administrative assistance to panel members or to the external HR expert. This category captures the external HR consultant if they are not on the panel, and any support staff. They are also subject to the conflict of interest disclosure and mitigation regime.

Conflict of interest: Not defined exhaustively, but the order imposes a positive duty to “monitor the circumstances and identify any actual or potential conflict of interest” (clause 6(2)(e)(i)). It must be disclosed in writing to each selection panel member. The panel must decide whether it can be mitigated and what measures are appropriate. If a majority (including the mayor) decides it cannot be mitigated, the matter goes to the council. The council then determines mitigation and whether the person can continue. This is a layered, proceduralised conflict management system that goes beyond general duties under the Act.

External HR expert: The council must engage at least one person who is not a councillor, who has experience in recruiting senior management and holds appropriate qualifications in contemporary HR practices, to inform panel members. That person may be a panel member or merely engaged to advise. A similar external HR expert is required for performance assessments (clause 7(d)). This creates a mandatory role for private sector HR professionals in local government decisions.

Performance criteria: Before each annual assessment, the general manager and council must agree on “specified, clear and measurable criteria”. This is a bilateral agreement, not unilateral council imposition. The criteria may include current and future remuneration, which ties performance assessment directly to pay outcomes.

Closed council meeting: The order distinguishes between open and closed council meetings. Details of the evaluation of applicants against role description and selection criteria must be recorded in the minutes of a closed meeting (clause 6(2)(m)). The recommendation and report may be recorded in an open or closed meeting (clause 6(2)(n)). Performance assessment reports must also be recorded in minutes of an open or closed meeting (clause 7(e)). This gives councils some flexibility on transparency but also creates a risk that sensitive information may be withheld from the public.

Principles governing selection: Clause 4 lists three principles. “Integrity, accountability and transparency” is a standard trio. “All applicants are to be treated fairly and equitably, without discrimination” imposes an equal opportunity obligation. The third principle, requiring participants to manage conflicts of interest so as to ensure integrity, accountability and transparency, links the conflict rules back to the overarching principles.

The order directly affects all 29 local councils in Tasmania, their councillors, mayors, and general managers (both incumbents and prospective appointees). It also affects external HR consultants and recruitment firms who may be engaged as the mandatory HR expert for selection or performance assessments. Applicants for the position of general manager are affected as beneficiaries of the fair treatment principle and the structured process, but the order gives them no direct enforcement rights; it imposes duties on councils and panel members.

For councillors, particularly the mayor, the order imposes significant personal obligations. The mayor must lead the selection panel and must vote as part of any majority decision on conflict mitigation. If the mayor has a conflict that cannot be mitigated, the council must replace them on the panel. This could create political tensions within councils, as the mayor is typically the elected leader but may need to step back from a hiring decision. All councillors on the panel must actively monitor and disclose conflicts, which may expose them to liability if they fail to do so.

For general managers, the order provides procedural protections. They must be treated fairly and without discrimination in performance assessments; they must agree to the criteria used; and they are entitled to see the most recent performance assessment before a reappointment decision. However, the order also creates risk: the performance criteria may include future remuneration, giving councils leverage to link pay to subjective measures. The annual assessment requirement, while standard in most employment contexts, is now mandated by law, and a council that fails to conduct it on time could be in breach.

External HR advisors gain a statutory role. A council cannot simply rely on internal HR staff or the general manager’s own input; it must engage at least one external person with appropriate qualifications and experience. This creates a small market for such services, but also imposes a cost on councils, particularly smaller rural councils with limited budgets. The order does not provide any funding subsidy or phase in for these costs.

Ratepayers and residents are indirectly affected. The additional procedural steps and external engagement will increase the cost and time of hiring a general manager. A typical recruitment process may now require a formal selection panel, external HR expert, conflict management documentation, and detailed minutes. Councils may need to budget for these costs, which are ultimately borne by ratepayers through council rates. On the other hand, supporters of the order would argue that it reduces the risk of patronage appointments and improves the quality of general managers, potentially leading to better council performance over time.

State government agencies are also affected. The order is administered by the Department of Premier and Cabinet, which may need to provide guidance, handle complaints, or monitor compliance. The order does not create a veto power for the Minister, but if a council fails to follow the procedures, it could be challenged in court or face ministerial intervention under the Act.

Duty to apply specified principles: Under clause 4, councils must ensure that the selection of a general manager is governed by the principles of integrity, accountability, transparency, fair and equitable treatment without discrimination, and conflict management. This duty is ongoing throughout the selection process. It is not merely a statement of policy; it is legally prescribed.

Duty to take specified matters into account: Clause 5 requires councils to consider the role description, selection criteria, panel recommendations, and (for reappointment) the general manager’s most recent performance assessment. This is a mandatory consideration duty, meaning a council that ignores any of these items in making its decision could have its decision set aside for failing to take into account a relevant matter.

Duty to appoint a selection panel: Clause 6(2)(a) compels the council to appoint a selection panel. The council cannot decide to forgo a panel and make the appointment directly through a council resolution. The panel must then follow the detailed process.

Duty to ensure councillor majority on panel: Clause 6(2)(b)(i) mandates that councillors must form a majority of selection panel members. This prevents councils from outsourcing the decision to external experts with only token councillor involvement.

Duty to engage an external HR expert: Clause 6(2)(c) requires the council to engage at least one external person (non councillor) with experience in senior management recruitment and appropriate HR qualifications to inform panel members. This is a non delegable duty; the council must identify and pay for such a person. There is no exemption for councils in small municipalities where such experts may be expensive or hard to find.

Duty of mayor to lead panel: The mayor must lead the selection panel (clause 6(2)(d)). This duty cannot be delegated to a deputy mayor or other councillor, unless the mayor has a conflict that forces replacement.

Duty to monitor and disclose conflicts: Panel members and relevant persons must actively monitor circumstances for actual or potential conflicts, and disclose any conflict in writing to each panel member (clause 6(2)(e)). This is a proactive, ongoing duty.

Duty to decide on conflict mitigation: The selection panel must review each disclosed conflict and decide whether it can be mitigated, and what measures are appropriate (clause 6(2)(f)). The decision requires a majority that includes the mayor’s vote (clause 6(2)(h)). This gives the mayor a decisive role in conflict management.

Duty to refer unresolvable conflicts to council: If the panel majority (including mayor) decides a conflict cannot be mitigated, the panel must refer the matter to the council (clause 6(2)(g)(ii)). The council must then determine whether the conflict can be mitigated and whether the person can continue (clause 6(2)(i)). This provides a safety valve but also adds a layer of decision making.

Duty to replace conflicted members in certain circumstances: Clause 6(2)(j) sets out mandatory replacement obligations. If a selection panel member with an unresolvable conflict cannot continue, the council must replace them if councillors would no longer be a majority; must replace the mayor; and must replace the external HR expert if they are the only one engaged. These rules try to preserve the panel’s composition while removing conflicted individuals.

Duty to record: Extensive record keeping is required. The selection panel must record details of every conflict disclosure, decision, mitigation measure, referral, and council determination (clause 6(2)(l)). It must record its evaluation of each applicant against the role description and selection criteria in the minutes of a closed council meeting (clause 6(2)(m)). The recommendation and report must be recorded in minutes (open or closed) (clause 6(2)(n)). For performance assessments, the report must be recorded in minutes (clause 7(e)). These records create an audit trail that could be used in legal challenges or Ombudsman investigations.

Duty to conduct annual written performance assessment: Clause 7(a) requires the council to assess the general manager’s performance at least once every 12 months, starting from appointment. This is a positive duty; a council that fails to assess on time is in breach.

Duty to agree performance criteria: Before assessing, the general manager and the council must agree on specified, clear, and measurable criteria (clause 7(b)). This gives the general manager a right to negotiate the criteria. The criteria may include current and future remuneration, which ties pay to agreed benchmarks.

Duty to treat general manager fairly: Clause 7(c) requires fair, equitable, and non discriminatory treatment during assessment. This echoes the selection principle but applies to performance.

Duty to obtain external HR advice for performance assessments: Clause 7(d) requires the council to obtain advice and information from at least one external person with appropriate HR qualifications and experience in senior management performance assessments. This mirrors the requirement for selection and imposes additional cost.

Rights of applicants: The order gives applicants a right to be treated fairly and equitably without discrimination (clause 4(b)). However, the order does not create a private right of action; an applicant who believes they were discriminated against could pursue claims under anti discrimination law, but the order itself likely does not give standing to challenge the appointment. The principles are addressed to councils, not to applicants.

Rights of general managers: As noted, the general manager has the right to agree to performance criteria, to be assessed fairly, to receive an assessment report, and to have that report used in reappointment decisions. The general manager also benefits from the conflict of interest rules if they are involved in the process, but the order primarily governs the council’s conduct.

The order itself does not create any offences or pecuniary penalties. It is a subordinate instrument that specifies procedures for the purposes of section 61A of the Local Government Act 1993. That section likely requires compliance with the order; failure to comply could render an appointment or performance assessment invalid or unlawful.

Enforcement could take several forms. A person with standing (such as a ratepayer or a councillor) could seek judicial review of a council’s decision to appoint a general manager if the council failed to follow the prescribed procedures. Grounds could include failure to take into account relevant matters (such as panel recommendations), bias due to unresolved conflicts, or failure to engage an external HR expert. The court could quash the appointment and require the process to start again. This would be costly and time consuming, and could leave the council without a general manager for an extended period.

Alternatively, the Ombudsman or the Minister could investigate a council’s compliance. The Local Government Act 1993 gives the Minister powers to intervene in council governance if a council is failing to comply with the law. Non compliance with this order could be a trigger for ministerial direction or even appointment of a commissioner. The Department of Premier and Cabinet administers the order and may provide guidance but has no express enforcement power in the order itself.

The order’s extensive record keeping requirements are clearly designed to facilitate enforcement. If a council does not produce proper records of conflict disclosures or panel evaluations, that itself may be evidence of non compliance. The recording of matters in minutes (open or closed) creates a public record that can be scrutinised by the media or interested citizens.

There are no monetary penalties or infringement notices. The order relies on the deterrent effect of potential legal challenge and regulatory oversight. This is typical for procedural rules in local government. However, the cost of defending a judicial review application or a ministerial inquiry could be significant for a council, particularly a small one. The risk of litigation may encourage councils to strictly follow the order, even if it adds time and expense to recruitment.

It is also possible that a general manager who is dismissed or not reappointed could argue that the council failed to follow the performance assessment procedures, thereby breaching their contract. The order itself may not create a contractual right, but it sets a standard of procedural fairness that could be implied into the general manager’s employment contract. A court could award damages for breach of contract if the council failed to conduct a proper assessment.

This order is subordinate to the Local Government Act 1993 and must be read consistently with that Act. Section 61A of the Act is the enabling provision; the order fills in the details. Any inconsistency between the order and the Act would see the Act prevail. The Acts Interpretation Act 1931 applies to the interpretation of the order as if it were by laws (clause 3(2)). This means standard interpretation rules apply: the order should be read in context, with a purposive approach.

The order interacts with anti discrimination law. Clause 4(b) requires fair and equitable treatment without discrimination. This echoes the Anti Discrimination Act 1998 (Tas). A selection process that breaches that principle could be challenged under both the order and anti discrimination law. The order does not provide a separate remedy for discrimination; it merely imposes a procedural duty on councils.

The order may interact with employment law, including the Fair Work Act 2009 (Cth). General managers are often employed under individual contracts or state awards. The performance assessment requirements in clause 7 could be relevant to any future unfair dismissal or adverse action claim. If a general manager is dismissed for poor performance, the existence of a written assessment with agreed criteria could help the council defend the dismissal. Conversely, failure to follow the order could undermine the council’s case.

Privacy and confidentiality laws apply. The order requires recording of personal information about applicants and general managers in council minutes. Clause 6(2)(m) permits recording in a closed meeting minutes, which are not public. However, clause 6(2)(n) and 7(e) allow recording in open meeting minutes, which are public. Councils must balance transparency with privacy obligations under the Personal Information Protection Act 2004 (Tas).

The order may also interact with council codes of conduct and standing orders. Many councils have codes that address conflicts of interest and recruitment. The order imposes specific procedures that may override or supplement those codes.

The order was made in 2024 and notified in the Gazette on 24 July 2024. It commenced on that date (clause 2). No amendments have been made to the order as of the date of this source text. It is a new instrument. Future amendments could be made by the Governor in Council, likely after consultation with local government stakeholders. Any amendment would need to be consistent with the Local Government Act 1993.

As of the date of this source text, the order has not been litigated. It is too recent (notified 24 July 2024). No reported cases interpret its provisions. However, analogous cases under similar procedural orders in other states may provide guidance. For example, courts have quashed local government appointments where panels were improperly constituted or conflicts were not managed. The order was clearly drafted to avoid those pitfalls by being highly prescriptive.

Potential future litigation could involve: challenges to appointments on grounds of breach of the conflict of interest procedures; disputes over whether the external HR expert was “appropriately qualified”; claims that the mayor failed to lead the panel; or challenges to performance assessments where the criteria were not agreed or the external advice was not obtained. The recording requirements will be central in such cases, as they provide evidence of compliance or non compliance.

The order contains several features that may catch councils off guard.

No exemption for small councils: The mandatory external HR expert requirement applies to all councils regardless of size or budget. A small rural council with a part time general manager and limited rates revenue must still engage an external HR expert for both selection and annual performance assessments. There is no cost waiver or flexibility to use existing council staff with HR qualifications. The order requires the person to be “not a councillor” and “engaged” by the council, which implies a formal engagement for payment.

Mayor’s pivotal role: The mayor must lead the selection panel. If the mayor is absent, ill, or disqualified, the process may stall. The order does not allow for an acting mayor to substitute unless the mayor is replaced due to conflict. Councils should have contingency plans, but the order does not provide one.

Conflict of interest majority must include mayor: Under clause 6(2)(h), a majority decision on conflict mitigation must include the mayor’s vote. This means the mayor effectively holds a veto. If the mayor is the one with the conflict, the panel cannot decide to mitigate without referring to the council. This creates a potential deadlock.

Replacement rules are complex: Clause 6(2)(j) sets out when a conflicted selection panel member must be replaced. The rules differ depending on whether the person is the mayor, a councillor, an external member, or a relevant person. If the mayor must be replaced, the council must replace them. But the order does not specify who replaces the mayor - presumably another councillor, but not necessarily the deputy mayor. The panel must still have a councillor majority. This could lead to disputes about who fills the vacancy.

Performance criteria may include future remuneration: Clause 7(b) says criteria “may include the current, and future, remuneration of the general manager”. This is ambiguous. Does “future remuneration” mean that the criteria can include a target salary level for the general manager, or that the assessment can determine future pay rises? Either way, it ties performance directly to pay, which may create perverse incentives. A general manager might push for low criteria to ensure a bonus, or the council might set ambitious criteria to avoid paying more. The clause does not require agreement on remuneration itself, only that criteria may include it. This is a potential area of conflict.

Recording in open vs closed meetings: The order gives councils a choice for some records: the recommendation and report (clause 6(2)(n)) and performance assessment reports (clause 7(e)) may be recorded in open or closed meeting minutes. Councils may be tempted to keep everything in closed minutes to avoid public scrutiny, but the open meeting minutes requirement for the recommendation and report suggests that at least some disclosure is expected. The order does not define when a meeting must be open; the Local Government Act has its own rules on closed meetings.

No transitional provisions: The order applies immediately to all new selection processes and performance assessments. A council that had already commenced a selection process before 24 July 2024 may have to halt and restart if it does not comply. For performance assessments, the first annual assessment must be conducted within 12 months of the general manager’s appointment, even if that appointment predates the order. Councils must ensure they have the external HR expert in place for the next assessment.

No grandfathering for existing general managers: The order does not exempt current general managers from the performance assessment procedures. Even if their contract was signed before the order, the council must conduct annual assessments in accordance with clause 7. This may require renegotiating performance criteria mid contract.

Costs are borne by ratepayers: The external HR expert engagement, the additional meeting time, and the record keeping all increase administrative costs. These are not funded by the state government. Councils must either absorb the costs or pass them on through rates. The order does not include a regulatory impact statement or cost benefit analysis in the source text.

A council seeking to comply with this order should take the following concrete steps.

For selection of a new general manager or reappointment:

1. Review and update the role description and selection criteria: Ensure they are current, accurate, and reflect the council’s needs. Consider whether they need updating before commencing the process. This is a mandatory consideration under clause 5(a) and (b).

2. Appoint a selection panel: Council must pass a resolution appointing a selection panel. The panel must have a majority of councillors. At least one non councillor may also be appointed to the panel if they have relevant skills and experience.

3. Engage an external HR expert: Council must engage at least one person who is not a councillor, with experience in senior management recruitment and appropriate HR qualifications, to inform the panel on contemporary HR practices. This person may be a panel member or merely an advisor. Obtain a written engagement confirming their qualifications and independence.

4. Appoint the mayor to lead the panel: Ensure the mayor is willing and able to lead. If the mayor has a conflict, the council will need to address that early. Document the mayor’s appointment.

5. Define conflict of interest procedures: At the first panel meeting, brief all panel members and relevant persons on their duty to monitor and disclose conflicts. Provide a written disclosure form. Decide on a process for reviewing disclosures.

6. Conduct the selection process: The panel must evaluate each applicant against the role description and selection criteria. Record these evaluations in writing. The panel must make recommendations to the council and prepare a report.

7. Document everything: Record all conflict disclosures, decisions on mitigation, referrals to council, and council determinations. Record evaluations of applicants in the minutes of a closed council meeting. Record the recommendation and report in minutes (open or closed).

8. Council decision: The council must take into account the panel’s recommendations, the role description, selection criteria, and (for reappointment) the most recent performance assessment. The council is not bound to follow the recommendations but must consider them.

For annual performance assessment of an existing general manager:

1. Agree on performance criteria: Before the assessment, meet with the general manager and agree on specified, clear, and measurable criteria. Document the agreement in writing. The criteria may include current and future remuneration. If the general manager does not agree, the council must try to reach agreement; if impossible, the council cannot proceed unilaterally without breaching the order.

2. Engage an external HR expert: Council must obtain advice and information from at least one external person with appropriate HR qualifications and experience in senior management performance assessments. This person can advise on the criteria, the assessment process, and the evaluation.

3. Conduct the assessment: The council must treat the general manager fairly and without discrimination. The assessment must be in writing. It must evaluate the general manager against the agreed criteria.

4. Record the assessment report: The assessment report must be recorded in the minutes of an open or closed council meeting. If sensitive, use closed minutes, but be aware that the public may still access closed minutes under certain conditions.

5. Use the assessment for reappointment: If reappointment is contemplated, the council must take into account the content of the most recent performance assessment (clause 5(d)).

General compliance tips:

• Keep a compliance checklist for each selection and reappointment process.
• Ensure all councillors on the panel understand their legal duties.
• Engage the external HR expert early, as they may need time to review the council’s needs.
• Budget for the external expert costs and additional meeting time.
• Seek legal advice if any conflict of interest situation is complex. The cost of legal advice now may be less than the cost of a legal challenge later.
• Maintain records indefinitely, as challenges may arise years after an appointment.
• Review council standing orders to ensure they accommodate the new procedures, particularly around closed meetings.