Local government elected members and employees are required to
disclose an interest that may adversely affect their impartiality in any
matter discussed at a council or committee meeting.
Local Government (Rules of Conduct) Regulations 2007 set out uniform rules to guide the behaviour of council members. Regulation 11 of the
Local Government (Rules of Conduct) Regulations 2007 prescribes how and when disclosure of an impartiality interest must be made by a council member.
Regulation 34C of the
Local Government (Administration) Regulations 1996 prescribes
how and when disclosure of an impartiality interest must be made by a
local government employee. These provisions are to be included within
each local government's code of conduct.
establishes precise and detailed provisions which clarify the disclosure
requirements and general responsibilities of individuals within local
The decision to disclose
For the purposes of requiring disclosure, an interest is defined in Regulation 34C of the
Local Government (Administration) Regulations 1996 and Regulation 11 of the Local Government (Rules of Conduct) Regulations 2007
as, "an interest that could, or could reasonably be perceived to,
adversely affect the impartiality of the person having the interest and
includes an interest arising from kinship, friendship or membership of
The above definition includes examples of the
type of relationships that an interest could arise from. However, a
significant element is the likely public perception as to whether there
may be an interest.
It is sometimes difficult to judge what a
reasonable belief of another person is. Therefore, when deciding if such
an interest should be disclosed, it is helpful to establish answers to
the following questions:
If you were to participate in assessment
or decision making without disclosing, would you be comfortable if the
public or your colleagues became aware of your association or connection
with an individual or organisation?
Do you think there would be a later criticism of perceived undisclosed partiality if you were not to disclose?
regulations do not provide extensive examples of what constitutes an
"interest". However, the department has particular views on the types of interest that should be
disclosed. These are explained in Section 5 of this Guideline.
The impact of an impartiality disclosure
are very different outcomes resulting from disclosing an interest
affecting impartiality compared to that of a financial interest.
example, with the declaration of a financial interest an elected member
leaves the room and does not vote (unless permitted to do so by the
meeting or the Minister).
With the declaration of an impartiality
interest, the elected member stays in the room, participates in the
debate and votes. In effect then, following disclosure of an interest
affecting impartiality, the member's involvement in the meeting
continues as if no interest existed.
Disclosing an interest
Who is required to make a disclosure?
members and employees (including persons under contract) of local
governments are required to disclose interests affecting impartiality.
When should a disclosure be made?
the matter in which an elected member or employee has an interest
affecting impartiality is to be discussed at a council or committee
meeting, the member or employee is to disclose the interest either in a
written notice given to the CEO before the meeting or verbally at the
meeting immediately before the matter is discussed.
What to disclose
assist with making the disclosure, the department has prepared the following
declaration which elected members or employees may use when they
consider it necessary to disclose an interest affecting impartiality.
The nature of the interest must also be stated.
"With regard to …
the matter in item x … I disclose that I have an association with the
applicant (or person seeking a decision). This association is … (nature
of the interest …
As a consequence, there may be a perception that
my impartiality on the matter may be affected. I declare that I will
consider this matter on its merits and vote accordingly."
How to disclose
member or employee attending a meeting who wishes to disclose an
interest affecting impartiality can make a verbal declaration or do so
in written form. If a member or employee chooses to make a verbal
disclosure, they should do so during the meeting, immediately prior to
discussion of the matter to which the disclosure relates.
written notice of interest must be given to the CEO prior to
commencement of the meeting. In this instance the CEO must make the
person presiding at the meeting aware of the interest prior to
commencement of the meeting. During the meeting the presiding person
must then bring the contents of the notice to the attention of the
person's present at the meeting immediately prior to discussion of the
matter to which the disclosure relates.
All disclosures made are
to be recorded in the minutes of the relevant meeting. It is important
that the minutes distinguish between disclosures of interests affecting
impartiality and disclosures of financial interests.
At other times
will arise where an employee has provided advice to council in the form
of a report without being in attendance at the meeting, but will have
the need to disclose an interest. The regulations set out that an
employee who has given, or who will give advice in respect of a matter
in which they have an interest and which is to be discussed at a council
or committee meeting where they will not be in attendance, is to
provide written notice to the CEO prior to the meeting or at the time
the advice is given.
For example, an officer preparing a report
for a matter to be discussed at a council or committee meeting, but will
not be in attendance at the meeting should disclose their interest in a
written notice given to the CEO before the meeting and may also include
the disclosure in the body of the report.
Failure to disclose
failing to disclose an impartiality interest, an elected member
contravenes a rule of conduct and in doing so commits a minor breach.
The Local Government (Rules of Conduct) Regulations 2007 focus on
providing avenues for dealing with allegations specifically concerning
councillor misconduct. Under this legislation, minor breaches are
referred to a Standards Panel housed within the department. An employee who fails
to disclose their interest in accordance with Local Government
(Administration) Regulation 34C commits a breach of the local
government's code of conduct, in which case is a matter to be dealt with
by the CEO.
The requirement to disclose an
interest does not apply in circumstances where an elected member or
employee fails to do so because they were not aware that an interest
existed. The same is true when an elected member or employee fails to
disclose an interest because they did not know the matter in which they
had an interest was to be discussed. In the second instance disclosure
of the interest must be made as soon as possible following commencement
of the discussion. These exceptions are not automatic and will depend on
the circumstances and facts relating to the reasons for non-disclosure.
When does an interest affecting impartiality arise
The existence of an interest affecting impartiality is dependent on:
member or employee having an association with a person or organisation
that has a matter being discussed at a council or committee meeting;
employee being required to give advice on a matter where they have an
association with a person or an organisation related to that matter; and
- the type of matter being discussed at
a council or committee meeting.
The dpearmtent would not expect a disclosure to be made in matters which are solely related to:
- an individual's beliefs, philosophies or attitudes;
- a member's election pledges; or
- any other public pledges made by a member.
disclosure should be necessary – unless the matter also involves an
association with a person or organisation connected to the member.
What types of matters could result in a perception of partiality?
view of the department is that the intent of the impartiality provisions is to
capture those matters where persons or organisations associated with
members or employees are, by their own action, seeking a decision from
council (see paragraphs 30 to 44 for discussion on persons associated).
types of matters where disclosure is warranted include any matters
which require applications for approval, consent or a licence where the
financial interest provisions of the Act do not apply. This would
include development applications, extensions or construction of
facilities, requests for financial assistance, tenders, staff
recruitment and so on.
It is recognised that decisions on
impartiality disclosures are most difficult where a member or employee
has an association with an individual or organisations, which has a
passive involvement in a matter before Council or a committee for a
A matter is before a council meeting
which requires a decision to be made about the provision of footpaths on
a particular group of streets. The brother of one of the elected
members lives on one of the streets.
The brother had been a leader in the community push to request the construction of the footpaths.
There is no doubt, the member should make an impartiality disclosure.
brother had not been involved in any of the community efforts which
have caused council to consider the provision of footpaths.
This scenario is more
doubtful. Criticism of the member for not making a disclosure could be
considered unfair. However, the elected member may still wish to
declare, as it does not affect their ability to debate and vote on the
What types of associations may give rise to a perception of partiality?
are two major categories of associations that members or employees may
have which in certain circumstances may give rise to interests that
affect impartiality. These are associations with people and associations
Associations with Persons
financial interest provisions of the Act identify particular
relationships that a member or employee may have which can result in a
financial interest arising. In a similar way, matters involving persons
that a member or employee has a relationship with may result in an
interest which affects impartiality.
The regulations relating to
disclosures of impartiality make direct reference to an interest arising
from kinship, friendship or membership of an association. Therefore if a
relevant matter is discussed at a council or committee meeting, to
avoid a later criticism of undisclosed partiality, disclosure is
warranted if the matter involves a member's or employee's –
- spouse or defacto spouse;
- brother and sister;
- parents and spouse's parents;
- employer; or
- business partner.
Associations with friends and adversaries
addition to the persons mentioned in the previous section, the general
public is often concerned about impartiality in matters which involve
people who are friends or adversaries of members or employees. However,
while the definition of persons linked by family ties is generally
indisputable, there is some argument about the existence of an
acceptable definition of a friend or adversary.
In relation to a
friend, the definition which probably comes closest to the department's view is
given in the Macquarie dictionary which defines a friend as "one
attached to another by feelings of affection or personal regard", or
"one who is on good terms with another".
interpretation, it is suggested that two people could be considered
friends because they frequently socialise, have business lunches and
regularly go on trips or outings together.
A friend may also be
considered as someone who regularly participates at another person's
family functions or other significant events, or there may be a length
of time component which would form part of the definition.
it would be fair to say that the definition would vary from person to
person depending on age, background, gender, geographic location and so
on. It is a judgement for each member to make as to whether a person in
their local government district would have a reasonable belief that
another person is a friend of the member. Following this judgement, it
is then up to each member to decide whether to disclose or not, bearing
in mind the potential for later criticism of undisclosed partiality.
is important to note that, in addition to a friend, the same level of
partiality could be perceived to exist for an adversary or person that a
member or employee strongly disliked. When relevant matters come before
Council involving such persons, disclosure may well be warranted.
is recognised that in many small country towns, elected members and
employees may know a high proportion of the Shire's population. As a
consequence, although this is a difficult area, the department encourages
individual local governments to formulate a definition of a close
friend and adversary, which is appropriate to their circumstances which
would assist elected members and staff when they face a decision with
regards to disclosing an association.
Associations with organisations
to the person considering the extent of their involvement in an
association or organisation, disclosure is warranted when matters are
discussed at council or committee meetings which directly relate to
groups with which members and employees are affiliated. These include
sporting clubs, resident groups and associations, business groups and
associations, professional associations and so on.
A sporting group has a request before Council seeking a donation or other financial contribution.
An elected member is an office bearer in the sporting club.
The member should make an impartiality disclosure at the meeting.
elected member is a member of the sporting club but the extent of
involvement is occasional attendance at meetings and events.
Disclosure would probably not be required.
Associations with donors of gifts and contributors to travel
5.82 and 5.83 of the Act require members and employees to disclose
details about – the donor and nature of gifts received; and who
contributed to, and the value of, any contribution made towards any
travel including accommodation.
A record of these is to be included in the annual financial interests return.
Local Government (Administration) Regulations 1996
indicate that for annual returns lodged prior to 1 January 2000,
disclosure of gifts and contributions to travel valued at $500 or below
are not required.
For returns lodged after this date, gifts over
the value of $200 must be disclosed. If a relevant matter was discussed
at a council or committee meeting involving a person who had previously
been a donor of such gifts or contributions to travel, to avoid a later
criticism of undisclosed partiality if disclosure was not made,
disclosure is likely to be warranted.
mentioned previously the regulations relating to disclosure of interest
affecting impartiality make direct reference to an interest arising
from kinship, friendship or membership of an association. However, the department recommends that members and employees consider and include other types
of associations as they see fit. These may also include other categories
of persons or it may include secondary relationships, for example,
matters which involve friends of spouses, or friends of children etc.
Matters which involve a Member's Beliefs, Philosophies, Attitudes and Election or Public Pledges
stated earlier, a member's or officer's beliefs, philosophies,
attitudes and election or public pledges are not matters for which an
impartiality disclosure is warranted. The key issue is the association
with people or organisations who have business with the local
As one of the objectives of the interest affecting
impartiality provisions is to help make local government decision making
transparent, it should be unnecessary for a member to disclose issues
openly campaigned upon before their election. The following examples
outline the department's views on this matter.
person who actively campaigns on a platform of keeping the rates down
is elected in October and in the following July faces the decision of
voting for the budget.
As the member's views on
the matter are well known and it does not relate to a specific
application etc, the member would not be required to disclose an
member is known to be anti-development and is a strong campaigner on
environmental issues. An issue comes before Council with regards to the
clearing of 20ha of pristine bushland known as "Tinglewood Dell".
As the member's views on
the matters are well known and there is no association with other
individuals or organisations that have an interest in the matter, the
member would not be required to disclose an interest.
in example 2, except the elected member is deputy president of the
organisation "Friends of Tinglewood Dell", a non-profit organisation
dedicated to saving the land from development and trying to raise
sufficient funds to buy the land.
As the elected member is
an office holder in an organisation which is heavily involved in the
matter before Council, the elected member should disclose that
association with the organisation.
councillor campaigned at the last election for the zoning of a certain
area of land to be retained as residential in contrast to the local
government's publicly announced preference to rezone the land
commercial. By the time the rezoning of the land is debated in Council
it has become known the elected member's son (who does not live with the
Councillor) has an option to buy a block of land, which will become
zoned for a commercial building. The financial interest provisions do
The member should disclose
an impartiality interest because in dealing with this matter there is
an association with a relative even though the elected member's eventual
vote is against the interests of this person.