Complaints about NSW Councils - Council ComplaintsLocal councils are independent bodies, elected by and accountable to their communities. With this in mind, we encourage councils to resolve most complaints at the local level.
The types of matters the Division routinely investigates are:
- pecuniary interests / failure to disclose
- misbehaviour (repeated breaches of Model Code of Conduct including political donations)
- serious misconduct
- systemic and serious deficiencies in council functions and operations
- serious non compliance with the Act and regulations
- the complaint falls within the Division’s jurisdiction to investigate
- there is sufficient prima facie evidence to substantiate the complaint
- the complaint raises an issue that, on the Division’s further assessment, may warrant further action
- the matter is frivolous, vexatious or is not made in good faith
- there are alternative means of resolving the issue
- the issues raised need to be investigated by another appropriate body
- it is in the public interest to investigate such an issue
- the matter occurred some time ago and it is unlikely the Division’s intervention would provide a resolution
- it is not in line with the Division’s priorities and objectives
Categories of complaintsWe categorise complaints according to the subject matter of the allegations. This enables us to monitor not only complaint numbers, but also trends in the areas of council operations that give rise to the greatest level of concern.
Complaints are about issues such as:
- land use planning – these include complaints from applicants for development consent and from objectors, and complaints about rezoning issues
- misconduct by councils – includes allegations of breaches of the council’s code of conduct
- council governance issues – including issues about public land management and the conduct of council meetings
- enforcement and regulatory powers – these are complaints that a council is not enforcing development consent conditions, or not acting on evidence of development carried out without consent
- mismanagement and maladministration – including complaints about council’s performance including employment practices and calls for dismissal
- financial management – including rating, charges, budget issues and decisions on allocation of council funding
- complaints about operational services – including engineering services, environmental services and community services
The onus is on councillors, council delegates, council staff and other persons to determine whether they are affected by the pecuniary interest provisions in relation to a matter under consideration by the council. A pecuniary interest in a matter is one where there is a reasonable likelihood or expectation of appreciable financial loss or gain to the person, or to other persons as defined by section 443 of the Act. This calls for an objective judgement in each case as to whether a pecuniary interest exists. The Pecuniary Interest and Disciplinary Tribunal has previously held that pecuniary interest extends to whether there are chances or possibilities, and probabilities of a financial gain or loss in the matter.
Allegations or complaints concerning possible breaches of the pecuniary interest provisions of the Act are to be made to the Division of Local Government, Department of Premier and Cabinet (the Division) (section 460 of the Act). Potentially, the Division may be required to formally investigate the matter (section 462 of the Act) and then refer a report of the investigation to the Pecuniary Interest and Disciplinary Tribunal (section 468 of the Act).
The Tribunal has the power to:
- counsel the councillor, or
- reprimand the councillor, or
- suspend the councillor from civic office for a period not exceeding 6 months, or
- disqualify the councillor from holding civic office for a period not exceeding 5 years, or
- suspend the councillor’s right to be paid any fee or other remuneration, to which the councillor would otherwise be entitled as the holder of the civic office, in respect of a period not exceeding 6 months (without suspending the councillor from civic office for that period)
- the Tribunal has similar powers in respect of council staff, council committee members and council advisors.
Councillor misbehaviourThe Minister and Division frequently receive complaints regarding councillor misbehaviour.
The standards of behaviour that the community expects of persons both in leadership positions and who are working for councils are set out in a comprehensive Model Code of Conduct prescribed by the Local Government (General) Regulation 2005. All councils are required to adopt and apply the Model Code of Conduct.
The council’s own independent conduct review committee or sole reviewer is generally responsible for making enquiries into allegations of breaches of the council’s code of conduct and reporting its findings to council.
Councils may vary the minimum requirements in the Model Code of Conduct, provided that the varied provisions are not inconsistent with the Model Code.
The Act defines the type of acts or omissions that amount to misbehaviour. Such acts or omissions include:
- a contravention of the Local Government Act 1993 or the Regulations,
- a failure to comply with applicable requirements of the council’s code of conduct, and
- acts of disorder that are committed by councillors during a meeting of council or a committee of the council.
The Chief Executive has the power, on becoming aware of possible misbehaviour, to request that the council provide a report on that matter.
The Chief Executive may, following consideration of an investigation report, suspend the councillor from civic office for up to one month. While suspended, a councillor is not entitled to exercise official functions or be paid the annual fee or other remuneration to which he or she would have usually been entitled, during the suspension period.
Alternatively, a matter may be referred back to the council with recommendations as to how the council might otherwise deal with the matter or no action may be warranted.
The Chief Executive may refer the more serious cases of councillor misbehaviour to the Pecuniary Interest and Disciplinary Tribunal.
In most respects, the Tribunal deals with matters in much the same way as it deals with pecuniary interest matters. The Tribunal has been given additional powers to deal with the issues of misbehaviour.
The Tribunal has the power to:
- counsel the councillor, or
- reprimand the councillor, or
- suspend a councillor from civic office for a period not exceeding 6 months, or
- suspend a councillor’s right to be paid any fee or remuneration to which the councillor would otherwise be entitled for a period not exceeding 6 months, without actually suspending the councillor from civic office.
Political donationsThe Local Government Act 1993 requires that, where a general manager reasonably suspects that a councillor has failed to comply with his or her obligation to disclose and manage a conflict of interest arising from a political donation, the general manager must refer the matter to the Chief Executive.
The Chief Executive, Local Government, may refer the matter to the Pecuniary Interest and Disciplinary Tribunal in accordance with the misbehaviour provisions of the Act. Such a referral can be made without the councillor concerned having previously been suspended for misbehaviour.
General complaintDecline – a matter is assessed as a “decline” when the matter is one that does not warrant action by the Division in accordance with its Complaints Assessment Policy.
Preliminary Enquiry/Review – a matter is assessed as a “preliminary enquiry/review” when action is required to gain additional information to deal with the complaint, e.g. contacting Council either by telephone or in writing, OR the officer reviews the document prior to determining whether further action will be required to deal with the matter.
Pecuniary interestA pecuniary interest is an interest that a person has in a matter because of a reasonable likelihood or expectation of appreciable financial gain or loss to the person.
Allegation – allegations that a person has or may have contravened Part 2 of Chapter 14 of the Local Government Act 1993, relating to pecuniary interest matters, that have been referred to the Division for assessment and any necessary action.
Complaint – as above, but the allegation is accompanied by a statutory declaration and therefore becomes a formal complaint in accordance with section 460 of the Act.
Investigation – under section 462 of the Act the Chief Executive, Local Government, under delegation from the Director General, Department of Premier and Cabinet, may decide to investigate a pecuniary interest complaint.
Misbehaviour referral/investigationReferral – this refers to complaints that a councillor has breached the misbehaviour provisions of the Act.
Investigation – under section 440J of the Act the Chief Executive Local Government, under delegation from the Director General, Department of Premier and Cabinet, may decide to investigate a misbehaviour referral/matter.
Political donations – this refers to alleged breaches of the political donations provisions of a council’s code of conduct.
Public interest disclosureThis relates to complaints made under the Public Interest Disclosures Act 1994. To be protected under the Public Interest Disclosures Act 1994, a disclosure to the Chief Executive, Local Government, has to be made by a public official (includes councillors, staff and delegates of local and county councils) and must show or tend to show corrupt conduct, maladministration, serious and substantial waste of local government money, government information contravention or local government pecuniary interest contravention by a council, county council, delegate, councillor or member of staff of a council.
Section 53 referralThese are matters that are referred to the Division by the Independent Commission Against Corruption under section 53 of the Independent Commission Against Corruption Act 1988 for investigation or other action.
Special investigations/section 430 investigationThis refers to an investigation commenced under section 430 of the Act. The Chief Executive, Local Government, under delegation from the Director General, Department of Premier and Cabinet, has the power to carry out investigations into council operations. Investigations can be general or in respect of a particular matter.
Complaints/allegations received for financial year – ten-year trend
The complaints we receive about councils help us to proactively monitor council operations and identify emerging issues and trends. Analysis of this information enables us to better direct our resources in conducting promoting better practice reviews and initiating investigations. Analysis also helps us to identify the need for changes to local government legislation or policy or a need for training, guidance or other best practice advice.