Personal interests and confidentiality
Councils are elected to serve in the best interests of their communities. Councillors follow certain procedures to ensure that their interests are transparent and that there is no conflict between their personal interests and their public duty.
The Local Government Act includes rules of conduct that require councillors and members of committees to act honestly, exercise reasonable care and diligence and not make improper use of their position or information.
Interests and conflicts of interest
When a matter is to be considered at a council meeting and a councillor has a personal interest in the matter they must declare that interest before the matter is considered.
A declared interest may be significant or it may be quite minor. An interest might even be declared in circumstances where the councillor doesn’t think they have a personal interest but where there might be a public perception that an interest exists.
The purpose of declaring an interest is public transparency. A councillor is not prevented from voting on a matter in which they have a personal interest unless there is also a conflict of interest. This is an important distinction.
While an “interest” is very broadly defined, a “conflict of interest” has a much narrower meaning. A conflict of interest can exist in two ways:
- If a councillor’s interest in a matter is pecuniary (ie it can be measured in monetary terms) a conflict of interest generally exists
- If a councillor considers that personal interest may be in conflict with their public duty, the councillor must declare a conflict of interest, even if that interest is non-pecuniary
Section 78 of the Local Government Act includes a number of specific provisions about pecuniary interest, including exemptions.
If a councillor has a conflict of interest they must declare the nature of the conflict of interest immediately before the matter is considered. The councillor will also avoid moving or seconding any motion during consideration of that matter and will leave the meeting while any vote is taken.
Even though a councillor with a conflict of interest may not be able to vote, they can still participate in discussion of the matter.
If a councillor, who has a conflict of interest, will not be present at the meeting they must still disclose the nature of the conflict of interest to the CEO or the chairperson of the special committee before the meeting.
Members of special committees are subject to the same requirements as councillors in regard to disclosing interests and conflict of interest.
Declarations of interests and conflicts of interest must be recorded in the minutes of the council or special committee meeting.
Pecuniary Interest Returns
Councillors complete disclosure forms that describe many of their pecuniary interests. There are two different types of forms lodged by councillors.
- Once elected each councillor completes a “primary return” which includes information about the councillor’s company, trust and property holdings as well as other interests the councillor considers may raise a material conflict between their private interest and their public duty
- At the end of each financial year each councillor completes an “ordinary return” which updates the information in his or her previous return as well as recording gifts he or she has received with a value of $500 or more
Senior council officers and members of special committees are also required to lodge the returns, although the council can decide to exempt a member of a special committee.
Returns may be inspected by members of the public, but only if they make a prior written request to the chief executive officer of the council.
Confidentiality and Access to Information
Councillors have access to council information necessary for them to do their job properly. However a councillor must remain impartial and must not use council information to gain advantage for themselves or any other person.
Councillors must not disclose confidential council information.
There are three ways information can be deemed confidential – if it is:
- provided for or at a closed meeting
- designated confidential by resolution of a council or special committee
- designated confidential by the CEO
Information discussed at a closed meeting is confidential. Unless the information is already publicly available, councillors must not talk about anything discussed at the meeting with people who were not present.
If a councillor releases information that they know, or should reasonably have known was confidential, that councillor can be fined. If convicted, the councillor can also be disqualified from continuing as a councillor for seven years.
The
Freedom of Information Act and the Information Privacy Act also apply to councils.
Linked page opens in a new window