The OIA’s main work is in assessing, investigating and prosecuting councillor misconduct complaints.
The threshold to investigate a matter is if there is a reasonable suspicion of misconduct.
Misconduct matters are referred to the Councillor Conduct Tribunal (CCT) to decide.
The CCT is a separate independent body which decides councillor misconduct complaints and issues any penalties.
Assessment of a misconduct complaint
- The OIA assesses complaints to decide if the complaint has reached the threshold as suspected misconduct and should be investigated or dismissed.
- In assessing complaints, the OIA may make preliminary inquiries with council or witnesses before a decision is made whether to proceed to an investigation.
- A complaint can be dismissed after assessment.
- If a decision is made to investigate, councillors are generally advised of the complaint and allegation/s but there are occasions when a councillor is not advised straight away.
- The identity of the complainant is not provided to the councillor.
- Councillors have the option, if they agree with the facts of the complaint, not to go to a full investigation but proceed to the OIA legal process.
- A full investigation is to determine if there is sufficient evidence to prove misconduct.
- Councillors may make a submission about the allegation and this may expedite an investigation.
- Investigators have powers to compel witnesses to provide statements, produce documents and attend interviews if necessary.
- At the end of the investigation, the matter is considered again and if there is a reasonable satisfaction of misconduct, the OIA will refer it to OIA legal to prepare for possible referral to the CCT.
- Complaints can also be dismissed after a full investigation.
Legal preparation for the Councillor Conduct Tribunal
- A statement of facts on the suspected misconduct is prepared.
- It sets out the allegation, the particulars and facts and explains what category of misconduct is alleged.
- The statement is shared with the councillor who may provide a further response. This is required by law (section 150AA LG Act).
- Councillors have two weeks to respond to straightforward matters and longer for complex matters. If you need more time to respond, please ask for an extension.
- A councillor’s response is considered by the OIA in deciding if the matter proceeds to the CCT.
- Matters can be dismissed at this point.
- If referred to the CCT, it is the CCT which decides whether misconduct has been sustained and any penalty.
- This guideline for commencing a CCT prosecution ( 178.5 KB) sets out what will be assessed in determining if a complaint proceeds to the CCT.
- Councillor Conduct Tribunal processes are separate to the OIA.
- Complainants may apply for the assessment decision to be reviewed if a matter is dismissed and the case closed. Request for review must be made within 30 calendar days from the date of the outcome advice.
- Councillors can review CCT decisions through the Queensland Civil and Administrative Tribunal (QCAT).
Factors, such as the complexity of the complaint, the availability of witnesses, the time taken waiting for a response and the ability to obtain evidence will all impact on the duration of a matter.
The OIA does not control the length of time the CCT takes to determine matters.
- OIA aims to assess misconduct complaints within 21 working days.
- In 2021, investigations averaged six months depending on resources and the number of complaints. Matters were dealt with within three months, but complex matters were more than 12 months.
OIA legal preparation for CCT
- In 2021 the average time taken by the legal team to prepare a matter, leading to either a CCT referral or dismissal/NFA by the OIA, was 8 months. Approximately 50% of matters were dealt with within 3 – 7 months, but complex matters took more than 12 months.
- The complainant, and generally the councillor, will be advised if a complaint is assessed as suspected misconduct and that the OIA will investigate.
- A council is not advised that an investigation has commenced unless the complaint has been referred to the OIA by the CEO.
- A complainant will receive a written update from the OIA every three (3) months.
- A councillor will be given an OIA investigator’s contact details and encouraged to speak directly to the investigator if they have any questions, including on the progress of a matter.
- The complainant/councillor will be given the assigned OIA legal officer’s contact details to speak directly to the officer if they have any questions, including progress of the matter.
- The complainant/councillor will be advised if the complaint is referred to the CCT.
- Once the matter is with the CCT, the OIA cannot provide updates on progress. Contact the CCT Registry.
- The CCT advises the councillor, council and, where possible, complainants of CCT decisions.
- Failing to declare a prescribed or declarable conflict of interest
- Influencing a council decision maker when a councillor has a prescribed or declarable conflict of interest
- Breaches of trust (a breach of the local government principles (section 4) or the councillors responsibilities (section 12 of the LG Act or section 14 of the City of Brisbane Act)
- Misuse of information or material acquired in or in connection with the performance of the councillor’s function for the benefit or detriment of the councillor or another person
- Giving directions to local government employees
- Releasing information confidential to council
- Failing to report suspected conflicts of interest of other councillors
- Failing to comply with an order of the council or the CCT
- Failing to comply with acceptable request guidelines of the council
- Failing to comply with a council policy about the reimbursement of expenses
- Being disciplined for inappropriate conduct three times in one year.
Last updated: 24 Mar 2022