We have received many enquiries or requests to have a councillor stood down for perceived or actual breaches or offences under the Local Government Act.
A Victorian councillor can be stood down for a number of reasons and the 2020 Act contains two pathways by which this can be done.
The first pathway created by sections of the Act allows the Minister for Local Government to intervene. This pathway can be taken when one of the following is initiated:
- an application to a Councillor Conduct Panel for a finding of serious misconduct against a councillor
- an application has been made to the Victorian Civil and Administrative Tribunal (VCAT) alleging gross misconduct by the councillor
- a Commission of Inquiry into the council or the councillor
- an application to the Supreme Court to oust the councillor from office.
The Minister must also have reason to believe that the councillor:
- is creating a serious risk to the health and safety of councillors, council staff or other persons; or
- is preventing the council from performing its functions.
When these elements are met, the Minister may refer the councillor to the Chief Municipal Inspector or a Municipal Monitor. The investigation findings must be reported to the Minister and councillor within 10 days (or another agreed period). The councillor has an opportunity to respond within five days.
Following this, the Minister may recommend to the Governor in that the councillor be stood down for up six months or until finalisation (including a final determination, withdrawal or dismissal) of the relevant Councillor Conduct Panel, VCAT, or Supreme Court application, or the tabling of the Commission of Inquiry report.
David Walker, the Inspectorate’s Senior Investigator, said: “There have been no cases under the new legislation, which came into force in 2020, where a councillor had been stood down through the intervention of the Minister for Local Government”.
Application to VCAT
The second pathway to stand a councillor down is set out in section . This is through an application to VCAT by the CMI where the councillor has been charged with a serious offence, which:
- has a maximum penalty is at least 120 penalty units or 12 months’ jail
- is punishable upon first conviction by imprisonment of two years or more for a term; or
- disqualifies them from managing corporations.
VCAT must consider the nature and circumstances of the charge before deciding to stand down the councillor.
If an order to stand down the councillor is made by VCAT, it applies until the proceedings in respect of the charge are finally determined. If the charge is withdrawn or the councillor is not convicted, the order ceases to have effect.
Some examples of where we could use this pathway include a councillor being charged with aggravated assault, a breach of an intervention order or a councillor being disqualified from managing a corporation after a bankruptcy.
Mr Walker said: “If the circumstances warrant the councillor being stood down we can apply to VCAT for an application to stand the councillor down. VCAT would then consider the nature and circumstances of the charge and would then make a decision about whether or not to stand the councillor down.”
He added: “It is important to note that this pathway is not immediate and the case may have to wait for a period of time until it is heard by VCAT.”
Consequences of a councillor being stood down
When a councillor has been stood down, they must not perform any of the functions and duties or exercise the power of a councillor. They cannot attend council meetings, delegated committees or attend council premises.
The councillor’s allowance is also suspended for the duration of the stand down period.
Reviewed 29 July 2022