Tasmania: Local Government Act 1993 (Tas)

Local Government Act 1993 An Act to provide for local government and establish councils to plan for, develop and manage municipal areas in the interests of their communities [Royal Assent 23 December 1993] Be it enacted by His Excellency the Governor of Tasmania, by and with the advice and consent of the Legislative Council and House of Assembly, in Parliament assembled, as follows: PART 1 - Preliminary 1. Short title This Act may be cited as the Local Government Act 1993 . 2. Commencement This Act commences on a day or days to be proclaimed. 3. Interpretation In this Act, unless the contrary intention appears – absolute majority means – (a) if no councillors are suspended, more than half of the number of councillors to be elected to a council; or (b) if one or more councillors are suspended, more than half of the number of councillors to be elected to a council after subtracting the number of councillors who are suspended; Appeal Tribunal means the Tasmanian Civil and Administrative Tribunal; approved means approved by the Tasmanian Electoral Commission; assets, for the purpose of Parts 3 and 12A and section 226A , includes – (a) any real or personal property; and (b) any estates or interests in any real or personal property; and (c) any rights, obligations or liabilities; audit panel means the audit panel established under section 85 ; authorised person means a person authorised under section 20A ; ballot material means – (a) a ballot paper; and (b) instructions for the completion of the ballot paper and the manner in which the ballot paper is to be returned; and (c) the envelope or envelopes to be used for the return of the ballot paper; and (d) statements of candidates; Board means the Local Government Board established under section 210 ; Board of Inquiry means a Board of Inquiry established under section 215 ; by-election means a by-election held under Division 9 of Part 15 ; by-laws means by-laws made by a council under Part 11 ; candidate means a person whose nomination for an election under Part 15 has been accepted under section 272 ; certificate of election means a certificate issued under section 304 ; chief executive officer means, in relation to a single authority or joint authority, the person responsible for the administration and operation of that authority; close associate means a person referred to in section 51 ; closing day means the day referred to in section 268A ; code of conduct means the code of conduct made by the Minister, and in force, under section 28R ; code of conduct complaint means a complaint made under section 28V and, where appropriate, includes a part of such a complaint; Code of Conduct Panel means the Code of Conduct Panel established under section 28K ; community means the community of a municipal area; competitive neutrality principles means the national competition policy competitive neutrality principles referred to in clause 3 of the Competition Principles Agreement made between the Commonwealth, the States and the Territories; controlling authority means an authority established under section 29 ; council means a council established under section 18 ; council committee means a council committee established under section 23 ; councillor means a person elected to a council and includes the Lord Mayor, Deputy Lord Mayor, mayor, deputy mayor and alderman; declaration of a poll means a declaration under section 303 ; deputy mayor includes the Deputy Lord Mayor; Director means the Director of Local Government appointed under section 334 ; Director, MPES means the Director, Monetary Penalties Enforcement Service appointed under section 8 of the Monetary Penalties Enforcement Act 2005 ; dispute resolution process, in relation to a council, means the process of resolving a dispute that is performed in accordance with the dispute resolution policy adopted by the council in accordance with section 28JA ; election agent means a person authorised by the candidate to act as his or her agent in connection with the candidate's campaign for election; elector means a person entitled to vote in an election or by-election under Part 15 ; elector poll means a poll conducted under Part 6 ; electoral advertising means any advertising, by any of the following means, that is directly or indirectly in respect of a campaign for election by a candidate or intending candidate: (a) any notice, sign or poster; (b) any pamphlet or handbill; (c) any "how-to-vote" card; (d) any print medium; (e) any broadcast by radio or television; (f) on the internet; electoral area means the municipal area or electoral district in which an election is to be held; Electoral Commissioner means the person holding that office under the Electoral Act 2004 ; electoral district means an electoral district referred to in section 17 ; electoral material means – (a) ballot papers; and (b) declarations under section 284 ; electoral officer means a person appointed as such under section 265 ; electoral officer in charge means an electoral officer appointed under section 265(2) to be in charge of an issuing place; electoral roll means a roll kept under section 258 ; Executive Officer means the Executive Officer appointed under section 28M ; financial year means a period of 12 months starting on 1 July in one year and ending on 30 June in the next year; general manager means the person appointed as such under section 61 and, in Part 15 , includes a person nominated under section 253A ; GST law has the same meaning as in the A New Tax System (Goods and Services Tax) Act 1999 of the Commonwealth; initial assessor, in relation to a code of conduct complaint, means the person appointed under section 28ZA(1AA) to be the initial assessor for the complaint; intending candidate means a person who has publicly declared the intention to nominate for an election under Part 15 ; issuing place means a place appointed under section 263 ; investigating Panel, in respect of a code of conduct complaint, means the panel convened under section 28L to investigate and determine the complaint; joint authority means an authority established under section 30 ; legal practitioner means an Australian legal practitioner; list of electors means the list prepared under section 261 ; mayor includes the Lord Mayor; member means – (a) a member of a special committee or a controlling authority; and (b) a person representing a single authority council or a joint authority council on a single authority or a joint authority; and (c) a member of the board of management of a single authority or a joint authority; municipal area means an area referred to in section 16 and, in Part 15 , includes a proposed municipal area; nomination period means the period beginning at 9 a.m. on the 8th Monday immediately before the closing day and ending at noon on the 6th Monday immediately before the closing day; notice of election means the notice of election under section 269 ; ordinary election means an election under Part 15 that is not a by-election; participating council means a council that, together with one or more councils, establishes a joint authority; partner means a partner within the meaning of the Relationships Act 2003 ; performance improvement direction means a direction issued to a council or councillor under section 214M ; polling period means a period of at least 10 days, excluding any Saturday, Sunday or statutory holiday as defined in the Statutory Holidays Act 2000 , ending on closing day; prohibited conduct means – (a) discrimination, or prohibited conduct, within the meaning of the Anti-Discrimination Act 1998 that is not the subject to an exception or exemption under Part 5 of that Act; or (b) such other conduct, or behaviour, that is prescribed as prohibited conduct; proposed municipal area means a municipal area that is to come into existence as a result of an order under section 214E ; public land means public land as specified in section 177A(1) ; public office means – (a) in the case of a municipal area, the place at which a council carries on its administrative activities; or (b) in the case of a proposed municipal area, the place at which a council or councils of that proposed municipal area carry out their administrative activities; rateable land means land in respect of which rates are payable; rates notice means a notice referred to in section 122 ; regulations means the regulations made under this Act; relevant period means the period starting on the 30th day before the date of notice of election and ending at the end of the polling period; returning officer means a person appointed as such under section 264 ; review means a review carried out by the Board under Part 12A ; roll closure day means the day on which the electoral roll for an electoral area is closed under section 260 ; scrutineer means a person appointed as such under section 292 ; simple majority means the majority of councillors of a council present and able to vote at a meeting of the council or council committee; single authority means an authority established under section 30 ; single authority council means a council that establishes a single authority; special committee means a special committee established under section 24 ; Tasmanian Electoral Commission means the Tasmanian Electoral Commission established by section 6 of the Electoral Act 2004 ; vehicle means a vehicle within the meaning of the Traffic Act 1925 and a bicycle; PART 2 - . . . . . . . . Division 1 - . . . . . . . . 4. . . . . . . . . 5. . . . . . . . . 6. . . . . . . . . 7. . . . . . . . . Division 2 - . . . . . . . . 8. . . . . . . . . 9. . . . . . . . . 10. . . . . . . . . 11. . . . . . . . . 12. . . . . . . . . 13. . . . . . . . . 14. . . . . . . . . 15. . . . . . . . . Division 3 - . . . . . . . . 15A. . . . . . . . . 15B. . . . . . . . . 15C. . . . . . . . . PART 3 - Local Government Division 1 - Municipal areas and electoral districts 16. Municipal areas (1) The State is divided into municipal areas. (2) A municipal area is an area specified in Column 1 of Schedule 3 . (3) A municipal area includes – (a) any accretion from the sea adjoining it; and (b) any part of the sea-shore to the low-water mark adjoining it; and (c) any bridge, jetty, wharf, boat-house, or other structure, that – (i) adjoins the municipal area; or (ii) is situated partly within a municipal area and partly on or over an area of the seabed that is adjacent to the municipal area – and any area of land, adjoining the bridge, jetty, wharf, boat-house, or other structure, over which has been granted a right to occupation of the seabed, which right is necessary to enable the use of the bridge, jetty, wharf, boat-house, or other structure. (4) The Minister, on receiving a report on a review made under section 214D that recommends an adjustment of the boundary of a municipal area or the boundary of an electoral district within a municipal area, regardless of whether the adjustment is minor or significant in nature, may recommend to the Governor that an order be made so adjusting that boundary. (4A) The Minister – (a) on receiving – (i) from the Board, made otherwise than in a report on a review made under section 214D ; or (ii) from the Director – a recommendation that an adjustment, that is minor in nature, be made to the boundary of a municipal area, or the boundary of an electoral district within a municipal area; and (b) if satisfied that all owners of land who would be affected by the adjustment have been consulted by the relevant councils and have consented, in writing, to the adjustment – may recommend to the Governor that an order be made so adjusting that boundary. (5) The Governor, by order and on the recommendation of the Minister under subsection (4) or (4A) , may do one or both of the following: (a) adjust a boundary of a municipal area; (b) if the municipal area is divided into electoral districts, adjust any boundary of any electoral district as may be necessary. (5AA) The Governor, by order, may amend or substitute any item in column 1 of Schedule 3 or substitute that Schedule so as to give effect to an order made under subsection (5) . (5A) A council affected by an adjustment under subsection (5) is to pay the costs associated with that adjustment. (5B) Each municipal area is defined by reference to the relevant plan or plans specified in Column 1 of Schedule 3. (6) The Governor, on the recommendation of the Minister, may amend or substitute any item in column 1 of Schedule 3 or substitute that Schedule in an order made under section 214E relating to municipal areas to give effect to that order. 16A. Cities (1) A city is an area specified in column 1 of Schedule 3B . (2) The name of each city is specified in column 2 of Schedule 3B . (3) A city is defined by reference to the relevant plan specified in column 3 of Schedule 3B . (4) The Governor, on the recommendation of the Minister, may amend or substitute any item in column 1, 2 or 3 of Schedule 3B or substitute that Schedule in an order made under section 214E relating to cities to give effect to that order. 17. Electoral districts (1) A municipal area may be divided into 2 or more electoral districts. (2) The name of each electoral district of a municipal area is specified in column 4 of Schedule 3 . (3) The Governor, on the recommendation of the Minister, may amend, substitute or delete any item in column 4 or 5 of Schedule 3 in an order made under section 214E relating to electoral districts to give effect to that order. Division 2 - Councils 18. Establishment of councils (1) There is established in each municipal area a council. (2) The name of each council in a municipal area is specified in column 2 of Schedule 3 next to the name of that municipal area. (3) A meeting of a council is to be conducted in accordance with prescribed procedures. (4) The Governor, on the recommendation of the Minister, may amend or substitute column 2 of Schedule 3 or substitute that Schedule in an order made under section 214E relating to councils to give effect to that order. 19. Corporation of councils (1) A council is a body corporate with perpetual succession and a common seal. (2) The corporate name of a council – (a) in a municipal area in which there is a city, is to contain the name of the city or the name of the municipal area; or (b) in a municipal area which is not a city, is to contain the name of the municipal area. (3) The common seal is to be kept and used as authorized by the council. (4) . . . . . . . . (5) The execution of a document sealed by a council is to be attested by such persons as the council determines. (6) All courts and persons acting judicially must take judicial notice of the common seal on a document and presume that it was duly sealed by a council. 20. Functions and powers (1) In addition to any functions of a council in this or any other Act, a council has the following functions: (a) to provide for the health, safety and welfare of the community; (b) to represent and promote the interests of the community; (c) to provide for the peace, order and good government of the municipal area. (2) In performing its functions, a council is to consult, involve and be accountable to the community. (3) A council may do anything necessary or convenient to perform its functions either within or outside its municipal area. (4) A council may transfer to a single authority or a joint authority – (a) any of its assets and liabilities on any condition it determines; or (b) any of its employees. (5) A council may – (a) acquire, hold, dispose of and otherwise deal with property; and (b) sue and be sued in its corporate name. 20A. Powers of entry (1) In order that a council may perform its functions or exercise its powers under this or any other Act, the general manager may authorise a person to enter land for a specific purpose or in general. (2) An authorised person need not be an employee of a council. (3) The general manager must give notice to the owner or occupier of the land before entry is made under subsection (1) unless – (a) an emergency exists; or (b) the entry is in relation to an application by the owner or occupier for a licence, permit or other approval given by the council; or (c) notice would defeat the purpose of the entry. (4) A person entering land under this section is to produce the identity card issued to that person under section 20B . (5) The general manager may revoke an authority under this section. 20B. Identity card (1) The general manager is to ensure that a person authorised to enter land pursuant to section 20A is issued with an identity card. (2) An identity card is to – (a) specify the name of the person; and (b) contain a recent photograph of the person; and (c) specify the date of issue; and (d) specify the council or agent of the council that employs the person. (3) A person whose authority is revoked under section 20A(5) must return his or her identity card to the general manager within 3 days of the revocation. Penalty: Fine not exceeding 10 penalty units. 21. Enterprise powers (1) In carrying out any of its functions, a council may – (a) form or participate in the formation and operation of a corporation, trust, partnership or other body; and (b) subscribe for, or otherwise acquire and dispose of, shares in or debentures or other securities of a corporation; and (c) become a member of a company limited by guarantee; and (d) subscribe for, or otherwise acquire and dispose of, units in a trust; and (e) acquire and dispose of an interest in a partnership or other body; and (f) enter into partnership or into any arrangement for sharing of profits, union of interest, cooperation, joint venture, reciprocal concession or otherwise, with any person carrying on, or engaged in, or about to carry on or engage in, any business or transaction capable of being conducted so as to directly or indirectly benefit the community; and (g) undertake a project or activity not directly authorized by this or another Act for the purpose of raising revenue. (1A) A motion by a council to exercise any of its powers under subsection (1) must be accompanied by a statement of the objectives of the exercise of that power. (2) A council must obtain the approval of the Minister before exercising any of its powers under subsection (1) if the exercise of that power would – (a) involve an expenditure of at least $250 000 or 5% or more of its general rates revenue for the previous financial year, whichever is the greater; or (b) extend the council's expenditure required to service its total borrowings to an amount in excess of 30% of its revenue other than grants made to the council for the previous financial year. (3) Before giving an approval, the Minister may require a council to – (a) invite submissions from the public or conduct an elector poll in relation to the proposed exercise of any power; and (b) consider any submissions and the result of an elector poll; and (c) provide any further information the Minister requires. (4) A council may exercise any power under subsection (1) outside the boundaries of its municipal area if that exercise is consistent with the competitive neutrality principles. (5) The general manager is to report to the council – (a) at least once every 3 months in respect of the performance of any activities carried out pursuant to subsection (1) and any strategic issues related to those activities; and (b) any adverse developments that significantly affect or are likely to significantly affect the financial viability, the operating viability or any other aspect of any of those activities. 22. Delegation by council (1) Subject to subsection (2) , a council, in writing, may delegate with or without conditions to the general manager, controlling authority, a council committee or a special committee, any of its functions or powers under this or any other Act, other than– (a) this power of delegation, unless authorized by the council; and (b) the powers referred to in subsection (3) . (2) A council, in writing, may delegate any of the following powers only to the general manager or a council committee and only on condition that the council has determined appropriate policies and procedures to be followed in relation to those powers: (a) the collection of rates and charges under Part 9 ; (ab) the postponement of rates and charges; (b) the remission or rebate of rates and charges; (ba) the writing off of any debts owed to the council; (c) the making of grants or the provision of benefits. (3) A council must not delegate any of its powers relating to the following: (a) the borrowing of money or other financial accommodation; (b) the determination of the categories of expenses payable to councillors and any member of any committee; (c) the establishment of council committees, special committees, controlling authorities, single authorities or joint authorities; (d) the revision of the budget or financial estimates of the council; (e) the revision of the strategic plan and the annual plan of the council; (f) the appointment of the general manager; (fa) the sale, donation, exchange or other disposal of land or public land; (fb) the decision to exercise any power under section 21(1) ; (g) the making of by-laws; (h) the making of rates and charges under Part 9 ; (i) any other prescribed power. (4) The general manager is to – (a) keep a register of any delegation; and (b) make the register available for inspection at a public office. 23. Council committees (1) A council may establish, on such terms as it thinks fit, council committees to assist it in carrying out its functions under this or any other Act. (2) A council committee consists of councillors appointed by the council and any councillor who fills a vacancy for a meeting at the request of the council committee. (3) A meeting of a council committee is to be conducted in accordance with prescribed procedures. 24. Special committees (1) A council may establish, on such terms and for such purposes as it thinks fit, special committees. (2) A special committee consists of such persons appointed by the council as the council thinks appropriate. (3) The council is to determine the procedures relating to meetings of a special committee. Division 3 - Councillors 25. Constitution of council (1) A council consists of persons elected in accordance with Part 4 . (2) A person elected to a city council is a councillor but may be known as an alderman. (3) The number of councillors for each council is specified in column 3 of Schedule 3 next to the name of that council. (4) The Governor, on the recommendation of the Minister, may amend or substitute column 3 of Schedule 3 in an order made under section 214E relating to councils to give effect to that order. (5) Schedule 5 has effect with respect to the office of councillor. 26. Mayors and deputy mayors (1) The chairperson of a council is to be known as – (a) in the case of the Hobart City Council or its successor, the Lord Mayor; and (b) in the case of any other council, the mayor. (2) The deputy chairperson of the council is to be known as – (a) in the case of the Hobart City Council or its successor, the Deputy Lord Mayor; and (b) in the case of any other council, the deputy mayor. 27. Functions of mayors and deputy mayors (1) The functions of a mayor are– (a) to act as a leader of the community of the municipal area; and (b) to carry out the civic and ceremonial functions of the mayoral office; and (c) to promote good governance by, and within, the council; and (d) to act as chairperson of the council and to chair meetings of the council in a manner that supports decision-making processes; and (e) to act as the spokesperson of the council; and (f) to represent the council on regional organisations and at intergovernmental forums at regional, state and federal levels; and (g) to lead and participate in the appointment, and the monitoring of the performance, of the general manager; and (h) to liaise with the general manager on – (i) the activities of the council and the performance and exercise of its functions and powers; and (ii) the activities of the general manager and the performance and exercise of his or her functions and powers in supporting the council; and (i) any function imposed by an order under section 27A ; and (j) any other function imposed by this or any other Act. (aa) . . . . . . . . (ba) . . . . . . . . (1A) The mayor or deputy mayor is to represent accurately the policies and decisions of the council in performing the functions of mayor or deputy mayor. (2) The deputy mayor is to act in the position of mayor and exercise the powers and perform the functions of mayor if– (a) the mayor is absent from duty as Mayor or from the State, otherwise unavailable for duty as mayor or unable to perform the functions of mayor; and (b) the mayor or the council, by notice in writing, appoints the deputy mayor to act in the position. (2A) The mayor, by notice in writing, may delegate for a specified period – (a) either or both of the functions referred to in subsection (1)(e) and (f) to the deputy mayor, a councillor or the general manager; and (b) any other power or function of the mayor, other than the function referred to in subsection (1)(d) , to the deputy mayor. (3) An appointment under subsection (2) remains in force – (a) for the period specified in the notice; or (b) until sooner revoked. 27A. Order relating to Mayor's functions (1) The Minister, by order, may do any one or more of the following: (a) clarify the functions of mayor; (b) impose on mayors such functions as the Minister considers appropriate. (2) The Minister may amend, revoke, or revoke and substitute an order. (3) Before making, amending or revoking and substituting an order, the Minister must consult with the councils as to the matters the Minister is considering including in the order, the amended order or the substitute order. (4) An order under this section may be combined with an order under one or more of the following sections: (a) section 28AA ; (b) section 62A ; (c) section 62B . (5) Section 47(3) , (3A) , (4) , (5) , (6) and (7) of the Acts Interpretation Act 1931 applies to an order under this section as if the order were regulations within the meaning of that Act. (6) An order under this section is subordinate legislation for the purposes of the Subordinate Legislation Act 1992 . 28. Functions of councillors (1) A councillor, in the capacity of an individual councillor, has the following functions: (a) to represent the community; (b) to act in the best interests of the community; (c) to facilitate communication by the council with the community; (d) to participate in the activities of the council; (e) to undertake duties and responsibilities as authorised by the council. (2) The councillors of a council collectively have the following functions: (a) to develop and monitor the implementation of strategic plans and budgets; (b) to determine and monitor the application of policies, plans and programs for – (i) the efficient and effective provision of services and facilities; and (ii) the efficient and effective management of assets; and (iii) the fair and equitable treatment of employees of the council; (c) to facilitate and encourage the planning and development of the municipal area in the best interests of the community; (d) to appoint and monitor the performance of the general manager; (e) to determine and review the council's resource allocation and expenditure activities; (f) to monitor the manner in which services are provided by the council. (3) In performing any function under this Act or any other Act, a councillor must not – (a) direct or attempt to direct an employee of the council in relation to the discharge of the employee's duties; or (b) perform any function of the mayor without the approval of the mayor. (4) A councillor is to represent accurately the policies and decisions of the council in performing the functions of councillor. 28AA. Order relating to functions of councillors (1) The Minister, by order, may clarify the functions of councillors. (2) The Minister may amend, revoke, or revoke and substitute an order. (3) Before making, amending or revoking and substituting an order, the Minister must consult with the councils as to the matters the Minister is considering including in the order, the amended order or the substitute order. (4) An order under this section may be combined with an order under one or more of the following sections: (a) section 27A ; (b) section 62A ; (c) section 62B . (5) Section 47(3) , (3A) , (4) , (5) , (6) and (7) of the Acts Interpretation Act 1931 applies to an order under this section as if the order were regulations within the meaning of that Act. (6) An order under this section is subordinate legislation for the purposes of the Subordinate Legislation Act 1992 . 28A. Information and documents relating to functions (1) A councillor, in writing, may request the general manager to make available any information or document or a copy of any information or document in the possession of the council that may be required for the purpose of performing any of the councillor's functions. (2) A councillor who makes a request under subsection (1) is to – (a) state in writing the relevance of the information or document to any of the councillor's functions; and (b) declare that he or she would not have, or would be unlikely to have, any pecuniary interest in the matter to which the information or document relates if the matter were to be an item on the agenda of a meeting of the council or a council committee. (3) The general manager may refuse the request of a councillor if – (a) the general manager believes that the request would unreasonably extend the resources of the council; or (b) the councillor has declared an interest under section 48 ; or (c) the councillor has failed or refused to make a declaration under subsection (2)(b) ; or (d) the general manager considers that the information or document requested is not required for the purpose of performing any of the councillor's functions. (4) If the general manager refuses the request the general manager is to advise the councillor in writing, stating the reasons for the refusal. (5) The general manager is to make any information or document made available to a councillor under this section available to any other councillor on request. 28B. Requirement to make information and documents available (1) A councillor may seek a decision of the council to require the general manager to make information or a document available if the general manager has refused a request under section 28A . (2) Subsection (1) does not apply to any information or document that, if made available, may disclose information relating to the personal affairs of any person. (3) The general manager is to comply with a requirement made as a result of a decision by the council. 28C. Confidentiality undertaking (1) If the general manager considers that the information or document is confidential, the general manager may require the councillor to whom the information or document is to be made available to give an undertaking to keep it confidential. (2) If a councillor refuses or fails to give the undertaking, the general manager may refuse to make the information or document available to the councillor. 28D. Documents relating to agendas (1) A councillor, on request, is entitled to be provided with a copy of any document, or information, in the possession of the council that relates directly to an item on the agenda of the next meeting of the council or a council committee. (2) A request – (a) is to be in writing; and (b) is to specify the document, or information, by name or title or subject matter. (3) The general manager is to make any document, or information, that is provided to a councillor under this section available to any other councillor on request. (4) If the general manager considers that a document, or information, is confidential, the general manager may require the councillor to whom the document, or information, is to be provided to give an undertaking to keep it confidential. (4A) If the general manager considers that – (a) a document, or information, requested by a councillor contains private and confidential information relating to a person; and (b) that private and confidential information is not relevant to an item on the agenda of a meeting of the council or a council committee – the general manager may provide the document, or information, after redacting or otherwise removing that private and confidential information. (5) The general manager may refuse to provide the councillor with a document, or information, if the councillor – (a) has declared an interest under section 48 in relation to a matter covered by the document or information; or (b) refuses or fails to give the undertaking under subsection (4) . (6) The general manager may refuse to provide the councillor with a document, any information or a part of a document or information, if the general manager considers that the document, information or part is not relevant to an item on the agenda of a meeting of the council or a council committee. (7) If the general manager under subsection (4A) has provided a document, or information, to a councillor after redacting or otherwise removing any private or confidential information the council may direct the general manager to provide the document, or information, to the councillor without redacting or otherwise removing any information from it. (8) If the general manager under subsection (6) has refused to provide a document, any information or a part of a document or information to a councillor, the council may direct the general manager – (a) to provide the document, information or part to the councillor without redacting or otherwise removing any information from it, information or part under subsection (4A) ; or (b) to determine under subsection (4A) whether any information in the document, information or part should be redacted or otherwise removed, and then to provide the document, information or part to the councillor, whether with or without any information being so redacted or removed. (9) The general manager is to comply with a direction of the council given under subsection (8) . 28E. . . . . . . . . 28F. . . . . . . . . 28G. . . . . . . . . 28H. . . . . . . . . 28I. . . . . . . . . 28J. Incapacity (1) A prescribed person may apply to a magistrate for an order that a councillor is unable to perform or exercise adequately or competently the functions or powers of a councillor due to the physical or mental incapacity of the councillor. (2) The magistrate may – (a) grant the order; or (b) refuse to grant the order. (3) If the magistrate grants the order – (a) the councillor is removed from office with effect from the date of the order; and (b) the office of the councillor is vacant as at that date. Division 3AA - Dispute resolution procedures 28JA. Dispute resolution policies (1) A council must adopt a dispute resolution policy. (2) A dispute resolution policy adopted by a council under subsection (1) is to specify the processes to be followed if there is a dispute as to matters that may be the subject of a code of conduct complaint. (3) A dispute resolution policy is to – (a) contain the prescribed information; and (b) include the processes to be followed in respect of prescribed matters. (4) The general manager of a council must ensure that a copy of the council's dispute resolution policy is available – (a) on the website of the council; and (b) on the request of a person. (5) In resolving, or attempting to resolve, disputes in respect of a council, each of the following persons involved in the dispute resolution is to comply with the provisions of the dispute resolution policy adopted by the council under this section: (a) the general manager of the council; (b) a councillor of the council; (c) a council employee of the council; (d) if the complainant participates in the dispute resolution process of the council, the complainant. (6) Each council must adopt a dispute resolution policy under this section within 12 months after this section commences. Division 3A - Code of conduct, complaints and complaint resolution Subdivision 1 - Code of Conduct Panel and Executive Officer 28K. Code of Conduct Panel (1) The Code of Conduct Panel is established. (2) The Minister is to appoint as members of the Code of Conduct Panel as many of the following persons as the Minister considers appropriate: (a) Australian lawyers; (b) persons who have experience in local government but who are not current councillors or employees of any council. (3) Before appointing persons to be members of the Code of Conduct Panel, the Minister may give notice, in any manner he or she considers appropriate, that persons interested in being members may provide written expressions of interest to the Minister. (4) Schedule 2A applies in relation to the members of the Code of Conduct Panel. (5) The instrument of appointment of a member of the Code of Conduct Panel may include conditions of appointment that are not inconsistent with Schedule 2A . (6) Without limiting the conditions of appointment that may be included in an instrument of appointment under subsection (5) , a member of the Code of Conduct Panel must undergo such training in respect of diversity and inclusion as is specified in the instrument of appointment. 28L. Investigating Panel (1) In the investigation and determination of a code of conduct complaint against a councillor, the panel convened to investigate and determine the complaint is to be constituted by 3 members of the Code of Conduct Panel who are selected by the Executive Officer of whom – (a) one is to be an Australian lawyer; and (b) 2 are to be persons who have experience in local government. (2) The chairperson of the panel convened under subsection (1) is a person referred to in subsection (1)(b) who is appointed as chairperson by the Executive Officer. (3) In constituting a panel under subsection (1) in respect of a code of conduct complaint, the Executive Officer is to consider the training that has been completed by each panel member and may be relevant to the complaint. 28M. Executive Officer (1) The Secretary of the Department, on behalf of the Crown, is to appoint a person as Executive Officer in relation to the Code of Conduct Panel. (2) If the Secretary of the Department appoints a State Service officer or a State Service employee as Executive Officer, the following provisions apply: (a) that officer or employee may hold a position or office under the State Service Act 2000 in conjunction with the office of Executive Officer; (b) the State Service Act 2000 does not apply in relation to the office of Executive Officer; (c) that officer or employee is not entitled to receive any remuneration as Executive Officer. (3) The Executive Officer is appointed for the term, and on the conditions, specified in his or her instrument of appointment. 28N. Functions of Executive Officer The Executive Officer has the following functions: (a) administrative functions in relation to the Code of Conduct Panel; (b) the functions specified in his or her instrument of appointment; (c) other functions prescribed by this Act; (d) other functions determined by the Minister. 28O. Payment of remuneration and allowances to members of Code of Conduct Panel and Executive Officer (1) In this section – State-employed Executive Officer means an Executive Officer who is also a State Service officer or State Service employee. (2) A member of the Code of Conduct Panel is entitled to receive the remuneration and allowances determined by the Minister from time to time. (3) The remuneration and allowances payable under subsection (2) to a member of the Code of Conduct Panel in relation to a code of conduct complaint and its investigation and determination are payable by the relevant council. (4) An Executive Officer – (a) who is not a State-employed Executive Officer is entitled to receive the remuneration and allowances determined by the Minister from time to time; or (b) who is a State-employed Executive Officer is entitled to receive only the allowances determined by the Minister from time to time. (5) The remuneration and allowances payable under subsection (4) to an Executive Officer in relation to a code of conduct complaint and its investigation and determination are payable by the relevant council. (6) In the case of a State-employed Executive Officer, the remuneration that would be payable to an Executive Officer in relation to a code of conduct complaint were he or she not a State-employed Executive Officer is payable – (a) to the government department in or for which the State-employed Executive Officer is employed in his or her capacity as a State Service officer or State Service employee; and (b) by the relevant council. 28OA. Disclosure of interest (1) If a member of the Code of Conduct Panel has an actual, potential or perceived conflict of interest in a matter, the member must notify the Executive Officer, as soon as practicable, if the matter is relevant to the investigation and determination of a code of conduct complaint. (2) A notification by a member under subsection (1) , in relation to a conflict of interest, is to – (a) specify – (i) the nature of the conflict of interest; and (ii) how the conflict of interest is relevant to the investigation and determination of the relevant code of conduct complaint; and (b) include a statement from the member as to whether the member believes that the conflict of interest prevents, or does not prevent, the member from acting fairly in respect of the investigation and determination of the relevant code of conduct complaint. (3) The Executive Officer must not appoint a member of the Code of Conduct Panel to be the initial assessor or a member of the investigating Panel, in respect of a code of conduct complaint, if the member – (a) has notified the Executive Officer, under subsection (1) , of a conflict of interest that is relevant to the complaint; and (b) has made a statement, under subsection (2)(b) , that the conflict of interest would prevent the member from acting fairly in respect of the complaint. (4) A member of the Code of Conduct Panel who has been appointed as the initial assessor or a member of the investigating Panel, in respect of a code of conduct complaint, must resign from the appointment if the member – (a) has notified the Executive Officer, under subsection (1) , of a conflict of interest that is relevant to the complaint; and (b) has made a statement, under subsection (2)(b) , that the conflict of interest would prevent the member from acting fairly in respect of the complaint. (5) The majority of members of an investigating Panel for a code of conduct complaint may remove a member from the Panel (the relevant member) if the majority of members believe that the relevant member has an actual, potential or perceived conflict of interest that is relevant to the complaint. (6) If the relevant member of an investigating Panel has been removed from the Panel under subsection (5) , the most senior remaining member of the investigating Panel is to notify the Executive Officer in writing of the relevant member's removal from the Panel. (7) If a member of the Code of Conduct Panel has resigned under subsection (4) from his or her appointment as the initial assessor or a member of the investigating Panel, or has been removed as a member of the investigating Panel under subsection (5) , in respect of a code of conduct complaint, the Executive Officer is to – (a) appoint another member of the Code of Conduct Panel to the relevant position; and (b) notify the complainant of the appointment of a replacement member; and (c) if the member has resigned or has been removed as a member of the investigating Panel, notify the other members of that Panel of the appointment of a replacement member to the Panel. 28P. Requesting provision of information (1) Each of the following persons may request, in writing, the Code of Conduct Panel or Executive Officer to provide information and documents relating to the performance of its or his or her functions as specified in the request: (a) the Minister; (b) the Secretary of the Department; (c) the Director; (d) the Board. (2) The Code of Conduct Panel or Executive Officer is to comply with a request made under subsection (1) . 28Q. Providing information to Code of Conduct Panel If a person is required to, or may, provide a document to the Code of Conduct Panel or the chairperson of the Code of Conduct Panel, the person may provide it to either the Panel or the Executive Officer. Subdivision 2 - Code of conduct 28R. Code of conduct (1) The Minister, by order, is to make a code of conduct relating to the conduct of councillors. (2) The Minister, by order, may amend or revoke and substitute the code of conduct. (3) The Minister is to make a copy of the code of conduct available to each council as soon as practicable after the code of conduct is made, amended or revoked and substituted. 28S. Contents of code of conduct (1) The code of conduct as made, amended or substituted under section 28R must be consistent with this Act and is to provide for the following matters: (a) what constitutes a conflict of interest for a councillor and the procedure to be followed if a councillor has a conflict of interest; (b) the proper and improper use by a councillor of his or her office with the council; (c) the proper and improper use by a councillor of council resources; (d) the proper and improper use by a councillor of information obtained in his or her office with the council; (e) the right of a councillor to receive gifts and benefits and the procedure to be followed by a councillor when receiving gifts and benefits in the situations specified in the code of conduct; (ea) that a councillor is not to engage in prohibited conduct in the councillor's relationships with the community, other councillors and council employees; (f) the appropriate or inappropriate behaviour of a councillor in his or her relationships with the community, other councillors and council employees; (g) the proper and improper manner in which a councillor represents himself or herself as a councillor, and represents the council, to the community; (h) any prescribed matter. (2) The code of conduct may provide for any other matter relating to the conduct of councillors that the Minister considers appropriate and is consistent with this Act. (3) The general manager of a council is to make a copy of the code of conduct available – (a) for public inspection, free of charge, at the public office of the council during ordinary office hours and on its website; and (b) for purchase at a reasonable charge. 28T. . . . . . . . . 28U. Compliance with code of conduct In performing the functions and exercising the powers of his or her office with a council, a councillor is to comply with the provisions of the code of conduct. Subdivision 3 - Complaints against councillors 28V. Making code of conduct complaint against councillor (1) A person may make a complaint against one councillor in relation to the contravention by the councillor of the code of conduct. (2) A person may make a complaint against more than one councillor in relation to the contravention by the councillors of the code of conduct if all the councillors complained against behaved on a particular occasion in such a manner as to commit the same alleged contravention of the code of conduct. (3) A complaint is to – (a) be in writing; and (b) state the name and address of the complainant; and (c) state the name of each councillor against whom the complaint is made; and (d) state the provision of the code of conduct that the councillor has allegedly contravened; and (e) contain details of the behaviour of each councillor that constitutes the alleged contravention; and (f) be lodged with the general manager of the relevant council within 6 months after the councillor or councillors against whom the complaint is made allegedly committed the contravention of the code of conduct; and (fa) be accompanied by a statutory declaration, signed by the complainant or by each complainant, verifying the accuracy of the information contained in the complaint; and (fb) contain details of all efforts made by the complainant to resolve the issue that is the subject of the complaint; and (fc) if the complainant completed the council's dispute resolution process in respect of the complaint – (i) contain details of the outcome of that process; and (ii) include the reasons why the complainant is not satisfied with that outcome; and (fd) if the complainant did not commence or complete the council's dispute resolution process in respect of the complaint, contain details of – (i) the attempts made by the complainant, as part of the attempted dispute resolution process, to resolve the issue that is the subject of the complaint; or (ii) why the complainant believes that the dispute resolution process is not appropriate in respect of the complaint; and (g) be accompanied by any prescribed fee. (4) If the subject matter of a complaint by its nature consists of a series of separate incidents that, taken together, form the subject matter, the period referred to in subsection (3)(f) runs from the most recent of the incidents mentioned in the complaint. (5) A complaint may not be made by more than 2 complainants jointly. (6) If a complaint is made under this section by the Director, the Minister may appoint another person to perform the functions, and exercise the powers, of the Director in respect of that complaint. (7) For the avoidance of doubt, a complainant has complied with subsection (3)(a) if the complainant causes the relevant complaint to be in writing. 28W. Withdrawal of or from code of conduct complaint (1) All complainants in a code of conduct complaint, jointly, may withdraw the complaint, at any time before the complaint has been determined by the investigating Panel for the complaint, by notice in writing provided to the general manager or the investigating Panel. (2) If a code of conduct complaint is made by 2 complainants, one of those complainants may withdraw from the complaint, at any time before the complaint has been determined by the investigating Panel for the complaint, by notice in writing provided to the general manager or the investigating Panel. (3) If a notice withdrawing a code of conduct complaint, or withdrawing from a code of conduct complaint, is provided to the general manager after the complaint has been referred to the investigating Panel for the complaint, the general manager is to notify the Executive Officer, in writing, of the withdrawal. (4) On becoming aware of a notice withdrawing a code of conduct complaint or a notice withdrawing from a code of conduct complaint, the investigating Panel for the complaint is to notify the following persons, in writing, of the withdrawal: (a) the general manager, unless the notice was originally provided to him or her under subsection (3) ; (b) if the councillor against whom the complaint is made has been notified of the complaint, the councillor. 28X. Amendment of code of conduct complaint (1) A complainant, in writing provided to the general manager or the investigating Panel for the complaint, may amend a code of conduct complaint at any time before the investigating Panel commences an investigation into the complaint. (2) If the investigating Panel for a code of conduct complaint has commenced its investigation into the complaint, a complainant may not amend the complaint. (3) If a notice amending a code of conduct complaint is provided to the general manager after the complaint has been referred to the investigating Panel for the complaint, the general manager is to notify the Executive Officer, in writing, of the amendment. (4) On becoming aware of an amendment to a code of conduct complaint, the investigating Panel for the complaint is to notify the following persons, in writing, of the amendment: (a) the general manager, unless the complainant provided the amendment to the general manager; (b) if the councillor against whom the complaint is made has been notified of the complaint, the councillor. 28Y. Initial assessment of complaint by general manager (1) Within 14 days after receiving a code of conduct complaint, a general manager is to assess the complaint to determine whether it meets the requirements of section 28V . (2) Subsection (1) does not apply if the general manager is the complainant. (3) If the general manager determines that the code of conduct complaint does not meet the requirements of section 28V , he or she is to return the complaint to the complainant and notify the complainant, in writing and within 14 days after receiving the complaint – (a) that the complaint does not meet the requirements of section 28V for the reasons set out in the notice; and (b) that the complainant may lodge an amended or substituted complaint without payment of a further fee under section 28V(3)(g) – (i) within the period specified in section 28V for lodging a code of conduct complaint; or (ii) if the complaint is returned to the complainant after the end of that period or less than 14 days before the end of that period, within 14 days after receiving the returned complaint. 28Z. Referral of code of conduct complaint by general manager (1) Within 14 days after both receiving a code of conduct complaint and determining, if required to do so, that the complaint meets the requirements of section 28V , the general manager – (a) if the complaint is against less than half of all the councillors of the council, is to refer the complaint to the Code of Conduct Panel by providing it to the Executive Officer; and (b) if the complaint is against one half or more of all the councillors of the council, is to refer the complaint to the Director. (1A) A referral by the general manager under subsection (1) in respect of a code of conduct complaint is to include copies of all of the documentation held by the council in relation to the dispute resolution process undertaken by the council in respect of the complaint. (2) If a code of conduct complaint is referred to the Director, the Director is to determine whether he or she accepts or refuses to accept the referral and is to notify the general manager of that determination within 28 days after receiving the referral. (3) If the Director fails to notify the general manager as required by subsection (2) , the Director is taken to have accepted the referral of the code of conduct complaint. (4) If the Director accepts the referral of the code of conduct complaint – (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 in relation to the complaint. (5) If the Director refuses to accept the referral of the code of conduct complaint, the general manager, within 14 days after being notified of the refusal under subsection (2) , is to refer the complaint to the Code of Conduct Panel by providing it to the Executive Officer. (6) If a code of conduct complaint is referred to the Code of Conduct Panel, the Executive Officer is to – (a) keep the original complaint or a copy of it; and (b) appoint an initial assessor for the complaint in accordance with section 28ZA . (c) . . . . . . . . 28ZA. Initial assessment of code of conduct complaint (1AA) As soon as practicable after receiving a code of conduct complaint referred to the Code of Conduct Panel, the Executive Officer is to – (a) appoint a member of the Panel, who is an Australian lawyer, to be the initial assessor for the complaint; and (b) provide a copy of the complaint to the person so appointed. (1) On being appointed to be the initial assessor of a code of conduct complaint, the initial assessor is to do an initial assessment of the complaint to determine whether to do one or more of the following: (a) dismiss the whole complaint; (b) dismiss part of the complaint; (c) refer the whole complaint to another person or authority; (d) refer part of the complaint to another person or authority; (e) determine that the whole complaint is to be investigated and determined by the Code of Conduct Panel; (f) determine that part of the complaint is to be investigated and determined by the Code of Conduct Panel. (2) The initial assessment is to be completed within such period as will enable the initial assessor to comply with subsection (3) . (3) Within 28 days after an initial assessor is appointed under this section in respect of a code of conduct complaint, the initial assessor – (a) is to notify the Director, the complainant and the general manager, in writing, of the result of the initial assessment and the reasons for it; and (b) if the initial assessor has determined that the whole or part of the complaint is to be investigated and determined by an investigating Panel, is to – (i) notify the councillor against whom the complaint is made, in writing, of the result of the initial assessment and the reasons for it; and (ii) provide a copy of the complaint to that councillor; and (iii) provide a copy of the initial assessment of the complaint to the Executive Officer. 28ZB. Dismissal of code of conduct complaint on initial assessment (1) The initial assessor for a code of conduct complaint, on an initial assessment, may dismiss the code of conduct complaint, or part of it, if he or she considers that – (a) the complaint or part is frivolous, vexatious or trivial; or (ab) the complainant has not made a reasonable effort to resolve the issue that is the subject of the complaint; or (ac) the dispute resolution process of the council is a reasonable mechanism to resolve the dispute, but the complainant has not participated, or has not participated satisfactorily, in the dispute resolution process; or (ad) it is not in the public interest for an investigating Panel to be convened under section 28L to investigate the complaint; or (b) the complaint or part does not substantially relate to a contravention of the code of conduct; or (c) the complainant has made the complaint or part in contravention of – (i) a determination of the initial assessor made under subsection (2) ; or (ii) a determination of the investigating Panel,