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Prosecutions for offences under the LG Act

The OIA may prosecute councillors for a number of Local Government Act (LG Act) offences in the Magistrates Court including:

  • protection from reprisal
  • use of information by councillors for a benefit or detriment
  • offences against section 201D of the LG Act, and
  • a vexatious, frivolous, or other improper complaint.

The LG Act only allows the OIA to prosecute a vexatious ‘complaint’ in the Magistrates Court and not a course of conduct by a ‘complainant’. However, the OIA may also make a vexatious declaration against a complainant. See vexatious complaints.

The OIA begins a 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

  • Conduct provisions are offences created by law in the LG Act and may be preferred against councillors.
  • A breach of a conduct provision can attract a fine of up to 85 penalty units and is heard in the Magistrates Court.
  • All such prosecutions are subject to public interest considerations.
  • The Independent Assessor may decide to alternatively deal with a breach of the conduct provisions by a councillor, as misconduct before the CCT, 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, or
    • 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: 20 Dec 2023