Conflict of Interest Procedures
Please find below the Conflict of Interest Procedures section in the Yarra Councillors' Code of Conduct:
5. Conflict of Interest Procedures:- Sections 77A, 77B, 78, 78A, 78B, 78C, 78D of the Act
The Council is committed to making all decisions impartially and in the best interests of the whole community. It therefore recognises the importance of fully observing the requirements of the Act in regard to the disclosure of direct and indirect conflicts of interest. For the purpose of this Policy “Direct and Indirect Interests” have the meanings specified in the Act, referenced in summary as follows.
Direct Interest
(Section 77A)
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- Reasonably likely that your benefits, obligations, opportunities or circumstances will be directly altered
- Reasonably likely to receive a direct benefit or loss measurable in money
- Reasonably likely that your residential amenity will be directly affected
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Indirect Interest
(Section 77A)
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Close Association
(Section 78)
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- A member of your family has a direct interest or an indirect interest
- A relative has a direct interest
- A member of your household has a direct interest
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Indirect Financial Interest
(Section 78A)
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- Likely to receive a benefit or loss, measurable in money, resulting from a change to another person's interests
- Holding shares in a company or body that has a direct interest (subject to threshold)
- When a person with a direct interest owes money to you
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Conflict of Duty
(Section 78B)
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- Manager or member of the governing body of an organisation with a direct interest
- Partner, consultant, contractor, agent or employee of person/body with direct interest
- Trustee for a person with a direct interest
- Past dealings in relation to the matter as duty to another person or body
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Applicable Gift
(Section 78C)
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- Election donations valued at or above $200 in previous fiove years
- Other Gifts valued at or above $200 in previous five years
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Party to the Matter
(Section 78D)
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- Initiated or became party to civil proceedings in relation to the matter
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5.1 Disclosure of Conflict of Interest:- Section 79 of the Act
(1) If a Councillor or member of a special committee has a conflict of interest in a matter which is to be, or is likely to be, considered or discussed at a meeting of the Council or the special committee, the Councillor or member must if he or she is attending the meeting, disclose the conflict of interest in accordance with subsection (2).
(2) A Councillor or member of a special committee who has a conflict of interest and is attending the meeting of the Council or special committee must make a full disclosure of that interest-
a) by either-
(i) advising the Council or special committee at the meeting of the details required under paragraphs (b) and (c) immediately before the matter is considered at the meeting, or
(ii) advising the Chief Executive Officer in writing of the details required under paragraphs (b) and (c) before the meeting; and
b) classifying the type of interest that has given rise to the conflict as either-
(i) a direct interest; or
(ii) an indirect interest and specifying the particular kind of indirect interest under section 78, 78A, 78B, 78C, 78D OR 78e, and
c) describing the nature of the interest, and
d) if the Councillor or member advised the Chief Executive Officer of the details under paragraph (a) (ii), the Councillor or member must make a disclosure of the class of interest only to the meeting immediately before the matter is considered at the meeting.
Clause (3) and (4) repealed
(5) The Chief Executive Officer must-
a) keep written disclosures given to him or her under this section in a secure place for three years after the date the Councillor or member of a special committee who made the disclosure ceases to be Councillor or member of a committee, and
b) destroy the written disclosure when the three year period referred to in paragraph (a) has expired.
(6) While the matter is being considered or any vote is taken in relation to the matter, the Councillor or member of a special committee must-
a) leave the room and notify the Mayor or the Chairperson of the special committee that he or she is doing so, and
b) remain outside the room and any gallery or other area in view or hearing of the room.
(7) The Mayor or the Chairperson of the special committee must cause the Councillor or member of a special committee to be notified that he or she may return to the room after-
a) consideration of the matter;
and
b) all votes on the matter.
(8) If a Councillor or member of a special committee discloses a conflict of interest, the Chief Executive Officer or the Chairperson must record in the minutes of the meeting-
a) the declaration of the conflict of interest; and
b) the classification of the interest that has given rise to the conflict, and if the Councillor or member has disclosed the nature of the interest to the meeting, the nature of the interest.
(9) Unless section 80 applies, a Councillor or member of a special committee who fails to comply with this section is guilty of an offence.
Penalty: 100 penalty units.
5.2 Conflict of Interest Defence:- Section 79A of the Act
It is a defence to a prosecution under section 79(9), 80A(3), 80B(2) or 80C(2) if the relevant person proves
that he or she did not know-
a) that he or she had a conflict of interest in relation to the matter, or
b) that a matter in respect of which he or she had a conflict of interest was considered or discussed at the relevant meeting.
5.3 Conflicting Personal Interest:- Section 79B of the Act
(1) This section does not apply to a Councillor or member of a special committee who has a conflict of interest in the matter
(2) If a Councillor or a member of a special committee considers that he or she has a personal interest in relation to a matter that is in conflict with his or her public duty in relation to the matter, the Councillor or member may, immediately before the matter is considered at the relevant meeting, apply to the Council or special committee to be exempted from voting on the matter.
(3) If a Councillor or member of a special committee makes an application under subsection (2), he or she must give reasons in support of the application.
(4) A Council or special committee may consent to an application made under subsection (2) and must not unreasonably withhold consent.
(5) If a Council or special committee consents to an application under subsection (4), sections 79(6), 79(7), 79(8) and 79(9) apply as if the personal interest that is the subject of an application under subsection (2) were a conflict of interest specified under this Act.
5.4 Certain Situations Where Councillor Taken to Not Have a Conflict of Interest:- Section 79C of the Act
(1) A Councillor is taken to not have a conflict of interest for the purposes of this Division if the matter relates to-
(a) the nomination or appointment by the Council of the Councillor to a position for which the Councillor will not be remunerated
b) the election of the Mayor under section 71 or the appointment of an acting Mayor under section 73(3)
c) a decision in relation to the payment of allowances to the Mayor or Councillors under section 74 or 74C(2)
d) the adoption of a policy in relation to the reimbursement of expenses under section 75A
e) the adoption of a Councillor Code of Conduct under section 76C
f) an application to a Councillor Conduct Panel or VCAT under Division 1B
g) an application for an exemption under section 80
h) the appointment of members and Chairpersons of special committees
i) a resolution that has the effect of making the Councillors eligible or ineligible for the superannuation guarantee under taxation legislation
j) the conduct of a Councillor with respect to:
i) internal dispute that involves the Councillor
ii) allegation of misconduct or serious misconduct (as defined in section 81A) by the Councillor
k) a submission provided to an electoral representative review under section 219F
l) a submission provided for the purposes of a subdivison review conducted under section 219N.
(2) If a budget or revised budget to be approved by a Council includes funding for a matter in respect of which a Councillor has a conflict of interest the Councillor is taken to not have a conflict of interest for the purposes of approving the budget or revised budget if-
a) the Council approved the matter and the proposed funding previously, and
b) the Councillor disclosed the nature of the conflict of interest under this Division when the decision in respect of the funding was originally considered and made.
5.5 Person (Councillor) May Make Submission Despite Conflict of Interest:- Section 79D of the Act
(1) Subject to subsection (2), a relevant person (Councillor) who has a conflict of interest in a matter and who has made a written submission under section 223 in respect of the matter, may present his or her submission under section 223(1)(b) to the Council or committee of the Council.
(2) The relevant person (Councillor) who has a conflict of interest in a matter must not be at the meeting of the Council or committee of the Council any longer than is required for the person to be heard in support of the person's written submission.
5.6 Statutory Decision Making and Enforcement Responsibilities
(a) As a Councillor you may have to deal with planning, building, health act and local law applications. You may become involved in local cases as a ward representative, or you may be more actively involved in decision making as a member of a Committee or at meetings of the Council which deal with these applications. If so, it is your duty to ensure that Council’s statutory decisions are properly taken and that parties involved in the development process are dealt with fairly.
(b) To reduce the risk of decisions being legally challenged, in your dealings with planning building, health act and local law applications you must not only avoid impropriety, but must at all times avoid any occasion for suspicion and any appearance of improper conduct.
(c) If you have substantial property or other interests which would prevent you from voting on a regular basis, you should not sit on a Committee which deals with these applications.
(d) You must not act on behalf of, or as an agent, or advocate for an applicant for an approval or permission with the Council. All dealings should be in accordance with your professional role which you have registered being part of the Council as the statutory decision-maker and body tasked with the statutory enforcement responsibilities.
(e) When making an application for your own property, you must not take any further part in the statutory process following submission of the application.
(f) You must never seek to pressure or influence Council officers to provide a particular recommendation on any application, agreement or on taking enforcement action.
(g) You should not organise support or opposition, lobby other Councillors, or act as an advocate to promote a particular recommendation on an application, agreement or on taking enforcement action.
(h) It is possible that you may receive representations from interested parties in relation to applications. If you are a member of the Committee which deals with applications, or if you are to attend a meeting of the Council to consider applications, and you wish to respond to lobbying by constituents or others by advocating a particular course of action prior to the meeting, you must declare an interest and not take part in any consideration of the application in question and you must leave the meeting room until consideration of the matter is concluded.
(i) If you propose to take part in the consideration of applications at a meeting of a Committee or of the Council, you must not give grounds to doubt your impartiality. You must not make public statements committing to a particular outcome on a pending application, to ensure that you are not seen to be prejudging the decision to be made at the meeting where all the information required to take a decision will be available. You must not indicate or imply your support or opposition to a proposal, or declare your voting intention, before the meeting. Anyone who may be seeking to influence you must be advised that you will not formulate an opinion on a particular proposal until all available information is to hand and has been duly considered at the relevant meeting.
(j) If you have an interest, whether financial, non financial, or personal, in the outcome of a decision on an application, or an agreement, or on taking enforcement action, you must declare that interest and refrain from taking part in the consideration of the application.
Further Information
Ivan Gilbert
Executive Manager – Governance
9205 5110
Ivan.Gilbert@yarracity.vic.gov.au
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