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In Tasmania, the key legislation with which local government elected members and council officers must comply is the Local Government Act 1993. For further information about legislation for local government, refer to the section on Legislative Compliance.
The Local Government Act provides a framework for good governance by setting specific requirements. This Guide outlines some of the key requirements of the Act including:
Further detail related to several offence provisions within the Act is provided below. Complying with these requirements is both a requirement of the law, and a matter of maintaining high ethical standards.
Section 338A of the Local Government Act specifies that elected members must not disclose information that is not authorised to be disclosed or that has been provided on the basis that it is kept confidential. Similarly, councillor employees must not disclose information that is acquired on the condition that it remains confidential.
Councillors need full information to be able to make sound decisions. However, there are times when some of the information provided to councillors needs to remain confidential. For example, matters that are discussed in closed meetings are confidential unless authorised by the council to be disclosed.
Section 28C of the Local Government Act states that general managers can require councillors to give a confidentiality undertaking, if the general manager considers particular information to be confidential. If the elected member refuses to give the undertaking, the general manager can refuse to provide the information.
Leaking confidential information is both illegal and damaging to the council. It not only affects the ability of a council to perform its functions, but undermines the trust that external organisations and individuals may have in council to keep certain information confidential.
Fines can be imposed where elected members or officers are found to have leaked confidential information. In addition, a court may order that a councillor be barred from nominating as a candidate at any election for up to seven years or dismiss the councillor from office.
Example: Publishing confidential closed council information about a council legal action in a letter to the editor of the local newspaper.
Fines can be imposed where elected members are found to have improperly used information. In addition, a court may order that a councillor be barred from nominating as a candidate at any election for up to seven years or dismiss the councillor from office.
Example: Sharing confidential council information with a family member about a commercial agreement and the family member purchases/sells land as a result.
Section 339A of the Local Government Act specifies that elected members and council employees must not procure the doing or not doing of anything by the council where they, their family, or a close associate would directly or indirectly benefit or avoid disadvantage as a result.
Fines can be imposed where elected members or officers are found to have misused their office. In addition, a court may order that a councillor be barred from nominating as a candidate at any election for up to seven years or dismiss the councillor from office.
Example: Use of your position as an elected member to discourage the council from approving a development that you consider would affect the amenity of your property.
Section 345 of the Local Government Act specifies that a person (including an elected member) must not, in giving any information under the Act:
Example: Making a false statement about a complaint to the Director of Local Government.
A local council is considering a major and expensive sports ground redevelopment. A councillor opposes the project but doesn’t think he has the numbers to win the vote. So he leaks confidential briefing material from a closed meeting of the council, which focuses on the downsides of the proposal, to generate media interest and provoke community outrage.
Using the media to force particular decisions, attack colleagues and undermine the council is neither appropriate nor legitimate. It deliberately subverts the democratic decision making process. Leaking confidential information from a closed meeting is a breach of the Act and is punishable as an offence in the Magistrates Court. It also reduces the confidence and willingness of external bodies to deal with the council.
To improve governance in this situation:
- councillors need to understand the nature of confidential information - it should be very clear if it is not intended for public airing because publicising confidential information is illegal and punishable under the Act;
- the council should make sure that a good level of information is available to the public through various channels - this will help to prevent leaking;
- councillors need to use the media appropriately as it is an important channel for councils to communicate with their communities and for communities to become informed about local issues;
- the difference between the views of the council and individual councillors needs to be understood by everyone – councillors who liaise with the media must reinforce this; and
- the council should develop protocols for working with the media.
5This content has been reproduced with permission from the Good Governance Guide © MAV, VLGA, LGV & LGPro 2012. See http://www.goodgovernance.org.au/.