The OIA can prosecute councillors for a number of Local Government Act (LG Act) offences in the Magistrates Court including:
- Vexatious, frivolous, or other improper complaints
- Protection from reprisal
- Use of information by councillors
- Offences against section 201D of the LG Act
The OIA can also charge a complainant in the case of a vexatious or improper complaint.
However, the LG Act only allows the OIA to criminally prosecute a vexatious ‘complaint’ and not a course of conduct by a ‘complainant’.
The OIA begins a criminal prosecution by issuing a complaint and summons for the defendant to appear in the Magistrates Court. It is then subject to the Magistrates Court process.
Conduct provisions are statutory offences created by the LG Act and may be preferred against councillors.
A breach of a conduct provision can attract fines of more than $12,000 in the Magistrates Court.
However, all such prosecutions are subject to public interest considerations.
The Independent Assessor can decide to deal with a breach of the conduct provisions by a councillor, as misconduct, taking the public interest considerations into account.
Some examples of a breach of the conduct provisions:
- dishonest conduct of a councillor
- use of council information for a benefit or detriment
- prohibited conduct of a councillor in possession of inside information
- making a complaint vexatiously or not in good faith
- failing to leave a meeting after declaring a prescribed conflict of interest.
While investigating a prosecution of a conduct provision, the following public interest considerations are taken into account:
- the seriousness of the alleged offending
- are there any mitigating or aggravating circumstances
- the availability and effectiveness of any alternatives to dealing with the matter as a breach of a conduct provision (i.e. dealing with the misconduct)
- the councillor’s previous disciplinary history and, or compliance with disciplinary orders
- is the alleged breach a continuing or subsequent offence
- how often offences of this kind occur and whether there is a need for deterrence
- statutory time limits on bringing a prosecution
- the age and physical or mental health of the councillor
- the length and expense of any court hearing
- if the councillor is convicted, what are the possible penalties available
- whether charging a councillor may result in their immediate suspension; whether this is proportionate given the prospects of success upon prosecution; and the likelihood of a conviction being recorded
- whether charging a councillor may result in their immediate suspension; whether this is proportionate given the impact on constituents; and proximity to a local government election
- the need to maintain public confidence in local government.
Last updated: 21 Sep 2022