Councillors are democratically elected officials, and are ultimately held accountable to their constituents through the electoral process. As independent elected officials, Councillors are not directly accountable to the Chief Executive Officer or the Mayor, but they are required to operate in accordance with specified standards.
Standards of Conduct
Under the Local Government Act 2020, Councillors have a legislative obligation to operate in accordance with the Standards of Conduct set out in the Local Government (Governance and Integrity) Regulations 2020.
It is important to understand that nothing in the Standard of Conduct is intended to limit, restrict or detract from robust public debate in a democracy.
Councillor Code of Conduct
The Councillor Code of Conduct is a document developed by every Council under the provisions of the Local Government Act 2020. Under the legislation, Councillor Codes of Conduct:
- must include the standards of conduct prescribed by the regulations expected to be observed by Councillors
- must include any provisions prescribed by the regulations
- must include provisions addressing any matters prescribed by the regulations
- may include any other matters which the Council considers appropriate, other than any other standards of conduct
It is important to note that Council cannot seek to alter the prescribed standards of conduct or impose additional standards and cannot impose measures which limit, restrict or detract from robust public debate in a democracy.
The arbitration process set out in the Councillor Code of Conduct can only be commenced by a Councillor, a group of Councillors or the Council itself. Members of the community cannot trigger the process set out in the Code.
Complaints about Councillors
While the ultimate accountability for Councillors is at the ballot box, there are some circumstances where members of the community may lodge a complaint about a Councillor.
Complaint about a Councillor’s breach of the Standards of Conduct
Section 18(1)(e) of the of the Local Government Act 2020 provides that the Mayor is required to “promote behaviour among Councillors that meets the standards of conduct set out in the Councillor Code of Conduct”.
To give effect to this obligation, the Mayor will consider complaints from the community that a Councillor has breached the Standards of Conduct. Complaints must be submitted in writing and must:
- specify the name of the Councillor alleged to have contravened the Standards of Conduct;
- specify the particular Standards of Conduct that are alleged to have been contravened;
- specify the misconduct that is alleged;
- include evidence in support of the allegation; and
- be submitted by the complainant or the complainant’s representative
The Mayor will consider all valid complaints received, and where warranted, shall engage with the Councillor who is the subject of the complaint to promote behaviour that meets the standards of conduct. It should be noted that the Mayor does not have the power to compel the cooperation of any party to a complaint or investigation, including the Councillor who is the subject of the complaint.
Once the Mayor has considered the complaint and/or has taken any action required, the complainant will be notified that the matter is closed. Details of any actions taken may not be released. At any time, the complainant is able to pursue one of the external avenues below.
Once the process is complete (including in circumstances where the Mayor declines to take the matter further on the basis that it is frivolous or vexatious), the Mayor will notify the complainant. Depending on the nature of the complaint, the complainant may then be able to pursue one of the external avenues below.
Complaint about the performance of a Councillor
Unless it is a contravention of the Standards of Conduct, complaints cannot be made to Council about the performance of a Councillor in their role. The type of complaints that cannot be made include a complaint about the way they voted on an issue before Council or their stated policy position on an issue.
Gross misconduct or serious misconduct
The Local Government Inspectorate is responsible for investigating alleged serious breaches of the Local Government Act 2020, including:
- misuse of position
- conflict of interest
- disclosure of confidential information
- council election offences
- nomination of someone not qualified to be a council election candidate
- authorisation of electoral material
The Chief Municipal Inspector, the head of the Local Government Inspectorate, is also responsible for investigating and making applications to VCAT for findings of gross misconduct against councillors and has power to investigate and initiate applications for councillor conduct panels to be established to determine allegations of serious misconduct by councillors.
Corruption or Improper Conduct
The Independent Broad-based Anti-corruption Commission (IBAC) is Victoria’s anti-corruption agency and is responsible for preventing and exposing public sector corruption. IBAC accepts complaints about suspected corruption in the public sector, including about Councillors. The IBAC will also accept protected disclosure complaints alleging improper conduct by Councillors.
Matters unrelated to their role as a Councillor
The avenues set out above can be followed only in circumstances where the individual being complained about is “acting as a Councillor”. If you have a complaint about a Councillor that relates to something conducted in a personal or business capacity, then you will need to follow another pathway. Some common complaint avenues are listed below.
- Dispute Settlement Centre of Victoria (neighbourhood disputes, boundary fences, trees)
- Environment Protection Authority (litter and pollution)
- Consumer Affairs Victoria (rental disputes, refunds and services, motor vehicle trading)
- Victoria Police (criminal matters)
- Australian Securities and Investment Commission (business names, insolvency)
- Australian Competition and Consumer Commission (scams, consumer complaints, lotteries)
- Australian Prudential Regulation Authority (investments, loans, insurance)
If you wish to commence private civil proceedings against a Councillor, the Law Institute of Victoria Find a Lawyer Referral Service may be of assistance.