Local Government Bill 2018

Division 1—Governance directions

Clause 209 provides for the Minister to issue a governance direction to a Council.

This is an important feature of a principles based Bill and allows a Minister to intervene if a Council fails to give effect to the overarching governance principles set out in clause 9.

Subclause (1) empowers the Minister to generally direct a Council to replace its governance policies or processes on the recommendation of one of the bodies listed in subclause (2)(b).

Subclause (2) empowers the Minister to issue a specific direction to a Council to—

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  adopt a good practice guideline issued by the Minister under clause 82;
  

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  adopt a recommendation or take an action recommended by one of the listed integrity bodies.
  

Subclause (3) empowers the Minister to direct a Council to provide financial statements or other financial information to the Minister within 4 weeks.

Subclauses (4) to (6) empower the Minister to direct a Council not to employ or re-employ a CEO if the Minister is satisfied that such an action could result in a failure of the Council to provide good governance or in the Council acting unlawfully.

Subclause (7) requires a Council to comply with a governance direction.

Clause 210 states that the Minister may take into account a failure to comply with a governance direction when considering recommending the suspension of a single Councillor or of all the Councillors of a Council.

Division 2—Compliance exemptions

Compliance exemptions are intended to allow Councils to develop and adopt alternative processes that provide good governance. This clause recognises the capacity of Councils to identify and implement processes that may give effect to the overarching governance principles more effectively than the processes specified in Regulations.

Clause 211 allows a Council to apply to the Minister for an exemption from compliance with a requirement set out in a Regulation.

Compliance exemptions are intended to allow Councils to develop and adopt alternative processes that provide good governance. This clause recognises the capacity of Councils to identify and implement processes that may give effect to the overarching governance principles more effectively than the processes specified in Regulations.

Clause 212 empowers the Minister to grant a compliance exemption.

Division 3—Municipal Monitors

Clause 213 provides that the Minister may appoint a person to be a Municipal Monitor to a Council.

Clause 214 describes the functions of a Municipal Monitor. This includes advising the Council about governance improvements and reporting to the Minister on steps to improve governance or on other matters.

Various provisions of the Bill give the Minister the ability to take steps to address governance failures identified by a Municipal Monitor. This includes the power to give a governance direction to a Council, to appoint a Commission of Inquiry or to suspend one or all of the Councillors.

Clause 215 gives a Municipal Monitor the power to do all things necessary or convenient to perform the Municipal Monitor's functions.

If a matter referred to a Municipal Monitor by the Independent Broad-based Anti-corruption Commission (IBAC) appears to involve corruption, the Municipal Monitor must inform IBAC.

Division 4—Chief Municipal Inspector

Clause 216 empowers the Integrity Minister to appoint a Chief Municipal Inspector.

The Chief Municipal Inspector has a key role in enforcing compliance with the Bill by Councillors and Council staff. The role of the Chief Municipal Inspector includes to—

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  investigate and prosecute possible offences under the Bill or breaches of the Bill;
  

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  investigate public interest complaints that relate to the conduct of Councillors or Council staff;
  

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  make applications to Councillor Conduct Panels for serious misconduct by a Councillor; and
  

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  make applications to VCAT for gross misconduct by a Councillor.
  

Clause 217 sets out the powers of the Chief Municipal Inspector, which includes the powers to require a person to produce a document, give reasonable assistance or be examined under oath.

If a matter referred to a Chief Municipal Inspector by IBAC appears to involve corruption, the Chief Municipal Inspector must inform IBAC.

Clause 218 requires the Chief Municipal Inspector to investigate public interest complaints referred by IBAC.

Clause 219 provides that the Chief Municipal Inspector must refuse to conduct an investigation on a public interest complaint if the investigation would prejudice any criminal proceedings or criminal, IBAC or Victorian Inspectorate investigations. For the purposes of ensuring compliance with this clause, the Chief Municipal Inspector may consult the Director of Public Prosecutions, the Chief Commissioner of Police, IBAC or the Victorian Inspectorate.

Clause 220 sets out the circumstances in which the Chief Municipal Inspector may refuse to investigate a public interest complaint. These include if the subject matter has already been investigated or otherwise dealt with by another integrity body or more than 12 months have passed since the complainant became aware of the disclosed matter and the complainant cannot provide a satisfactory explanation for the delay.

Clause 221 provides that if the Chief Municipal Inspector refuses under clauses 219 or 220 to conduct an investigation into a matter referred by IBAC, the Chief Municipal Inspector must, within a reasonable time after the complaint was referred by IBAC, inform IBAC and the person who made the disclosure of the refusal to conduct the investigation and the reason for the refusal.

Clause 222 provides that if, at any time before, during or after an investigation of a public interest complaint, the Chief Municipal Inspector believes that the conduct that is the subject of the complaint appears to involve corrupt conduct, the Chief Municipal Inspector must notify IBAC of that belief and, if the investigation of the public interest complaint has not been completed, suspend the investigation pending a response from IBAC to the notification.

Clause 223 provides that on completion of an investigation on a public interest complaint, the Chief Municipal Inspector—

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  must report the findings of the investigation to the relevant Council and the Minister; and
  

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  may make recommendations as to the action to be taken as a result of the investigation to the Minister or the relevant Council.
  

Subclause (2) provides that, if the Chief Municipal Inspector makes recommendations to the relevant Council, the Chief Municipal Inspector must provide the Minister with a copy of those recommendations, and may request the relevant Council to notify the Chief Municipal Inspector within a specified time of the steps to be taken to address the recommendations.

Subclause (3) provides that, if no appropriate steps have been taken by the relevant Council to address the recommendations of the Chief Municipal Inspector within a reasonable time after those recommendations were made, the Chief Municipal Inspector may advise the Minister of that failure.

Subclause (4) provides that the Chief Municipal Inspector must not include in a report information that is likely to lead to the identification of a person who has made an assessable disclosure.

Subclause (5) provides that the Chief Municipal Inspector may prosecute any possible breach of the Bill identified in the course of the investigation of the public interest complaint.

Clause 224 provides that if the Chief Municipal Inspector conducts an investigation on a public interest complaint, the Chief Municipal Inspector must inform the person who made the complaint (unless the complaint was made anonymously) of the result of the investigation and any other information that the Chief Municipal Inspector thinks proper.

Subclause (2) provides that the Chief Municipal Inspector must not disclose information under this clause if the Chief Municipal Inspector considers that the disclosure of the information would—

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  not be in the public interest or in the interests of justice;
  

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  put a person's safety at risk;
  

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  cause unreasonable damage to a person's reputation;
  

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  prejudice any criminal proceedings or investigations, or an investigation by IBAC, the Ombudsman, the Victorian Inspectorate or the Chief Municipal Inspector; or
  

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  otherwise contravene any applicable statutory secrecy obligations or involve the unreasonable disclosure of information relating to the personal affairs of any person.
  

Clause 225 provides that, if a public interest complaint is referred by IBAC to the Chief Municipal Inspector for investigation, the Chief Municipal Inspector must not disclose any information that is likely to lead to the identification of a person who has made an assessable disclosure and is not information to which section 53(2)(a), (c) or (d) of the Public Interest Disclosures Act 2012 applies.

Clause 226 provides that the Chief Municipal Inspector may provide or disclose information received or obtained in the course of an investigation of an assessable disclosure to a person or body specified in subsection (3) if the Chief Municipal Inspector considers that—

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  the information is relevant to the performance of the duties and functions or the exercise of the powers of the person or body; and
  

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  it is appropriate for the information to be brought to the attention of the person or body, having regard to the nature of the information.
  

Subclause (2) provides that the Chief Municipal Inspector must not disclose information to a person or body if the person or body, or an employee of the person or body, is the subject of an assessable disclosure and the information is likely to lead to the identification of a person who made the assessable disclosure (except where section 53(2)(a), (c) or (d) of the Public Interest Disclosures Act 2012 applies).

Subclause (3) provides that the Chief Municipal Inspector may provide or disclose information in accordance with subsection (1) to IBAC, the Victorian Inspectorate, the Ombudsman, the Auditor-General, Victoria Police, the Director of Public Prosecutions, the Commission for Children and Young People established under section 6 of the Commission for Children and Young People Act 2012, the Australian Federal Police constituted under section 6 of the Australian Federal Police Act 1979 of the Commonwealth, the police force or police service of another State or a Territory, or a prescribed person or body.

Clause 227 provides that the Chief Municipal Inspector must issue a confidentiality notice to a person during an investigation on a public interest complaint if the Chief Municipal Inspector considers on reasonable grounds that the disclosure of one or more restricted matters would be likely to prejudice—

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  an investigation by IBAC or the Victorian Inspectorate;
  

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  the safety or reputation of a person; or
  

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  the fair trial of a person who has been or may be charged with an offence.
  

The Chief Municipal Inspector may not issue a confidentiality notice to an IBAC officer or a Victorian Inspectorate officer.

Subclause (2) provides the requirements for a confidentiality notice.

Subclauses (3) and (4) provide that if at any time the Chief Municipal Inspector considers on reasonable grounds that—

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  it is necessary to restrict disclosure of a different restricted matter from any of those specified in a confidentiality notice; or
  

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  disclosure of a particular restricted matter specified
  in a confidentiality notice in respect of a particular investigation would no longer be likely to be prejudicial;
  

the Chief Municipal Inspector must issue to the person to whom the confidentiality notice was issued—

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  a notice cancelling the previous confidentiality notice; and
  

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  a new confidentiality notice in respect of that investigation under subclause (1).
  

Subclause (6) provides that, at the conclusion of an investigation in respect of which a confidentiality notice was issued, the Chief Municipal Inspector must issue to the person to whom the confidentiality notice was issued a notice cancelling the confidentiality notice, unless—

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  the Chief Municipal Inspector has applied for an order under clause 228 extending the confidentiality notice and the application has not been determined;
  

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  the Supreme Court has made an order extending the confidentiality notice under clause 228; or
  

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  the confidentiality notice has already been cancelled.
  

Subclause (7) provides that a confidentiality notice in respect of a particular investigation ceases to have effect on the date on which the Chief Municipal Inspector issues a notice cancelling the confidentiality notice, or the date specified in an order under section 228 extending the confidentiality notice—whichever occurs first.

Subclause (8) provides that a confidentiality notice or a notice cancelling a confidentiality notice may be issued to a person by serving a copy on the person in accordance with clause 343.

Clause 228 provides that if, before the conclusion of an investigation in respect of which a confidentiality notice has been issued, the Chief Municipal Inspector considers on reasonable grounds that it is necessary to extend the confidentiality notice for a period following the investigation, the Chief Municipal Inspector may apply to the Supreme Court for an order extending the confidentiality notice and the Supreme Court may by order extend a confidentiality notice.

Clause 229 provides that the Chief Municipal Inspector must, as soon as reasonably practicable, provide IBAC with a copy of—

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  each confidentiality notice issued by the Chief Municipal Inspector;
  

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  each notice cancelling a confidentiality notice issued by the Chief Municipal Inspector;
  

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  each application to the Supreme Court under clause 228(1) to extend a confidentiality notice; and
  

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  each order of the Supreme Court under clause 228(2) extending a confidentiality notice.
  

Clause 230 provides that, a person who is duly served with a confidentiality notice must not disclose a restricted matter specified in the confidentiality notice while it has effect. The penalty for a breach of this provision is 120 penalty units or imprisonment for 12 months or both.

Subclauses (2), (3), (4), (5) and (6) provide the circumstances and situations in which a restricted matter specified in a confidentiality notice may be disclosed.

Subclause (7) provides that a restricted matter specified in a confidentiality notice may be disclosed if the disclosure made is of information that has been published by an investigating entity or IBAC in a report or has otherwise been made public in accordance with any Act.

Subclause (8) provides that a person who makes a disclosure of information permitted by subsection (2) must, when making the disclosure, provide the person to whom the disclosure is made with a copy of the confidentiality notice and of any order extending the confidentiality notice, unless the person has a reasonable excuse for not doing so.

Subclause (9) provides that, if in respect of a particular investigation a person who makes a disclosure of information permitted by subsection (2) receives a new confidentiality notice, a notice cancelling the confidentiality notice or an order extending the confidentiality notice, the person must as soon as reasonably practicable provide a copy of the new confidentiality notice, notice cancelling the confidentiality notice or order extending the confidentiality notice to each person to whom the disclosure has been made, unless the person has a reasonable excuse for not doing so.

Subclause (10) provides that proceedings may only be instituted for an offence under subsections (1), (8) or (9) by the Chief Municipal Inspector or by or with the consent of the Director of Public Prosecutions.

Subclause (11) provides definitions for the purposes of this clause.

Clause 231 provides for the Chief Municipal Inspector to delegate a power, duty or function to any person with appropriate skills, who by virtue of the delegations is an inspector of municipal administration.

Clause 232 sets out offences and penalties relating to investigations by the Chief Municipal Inspector. These relate to failure to comply with a requirement of the Chief Municipal Inspector and giving false or misleading information to the Chief Municipal Inspector.

Clause 233 provides for the Chief Municipal Inspector to seek a Supreme Court order for a person to comply with a requirement of the Chief Municipal Inspector.