Pre-election provisions
Please find below the Pre-election Provisions section of the Yarra Councillors' Code of Conduct:
8. Pre-election provisions:- includes Sections 3, 55D, 93A of the Act
8.1 Electoral Matter
The Council will ensure that it complies with Section 55D of the Act (refer below) and Section 93A of the Act ( refer part 8.4 of this Code).
The following definitions from the Act are noted:
Prohibition on Council - Section 55D of the Act
(1) A Council must not print, publish or distribute or cause, permit or authorise to be printed, published or distributed, an electoral advertisement, handbill, pamphlet or notice during the election period unless the advertisemetn, handbill, pamphlet or notice has been certified, in writing, by the Chief Exeuctive Officer.
(2) The Chief Executive Officer must not intentionally or recklessly certify an electoral advertisement, handbill, pamphlet or notice during the election period unless it only contains informatin about the election process.
Penalty: 60 penalty units
(3) Despite Section 98 (2), the Chief Executive Officer must not delegate the power to certify any advertisement, handbill, pamphlet or notice under this section to a member of Council staff.
(4) A Councillor or member of Council staff must not intentionally or recklessly print, publish or distribute or cause, permit or authorise to be printed, published or distributed an electoral advertisement, handbill, pamphlet or notice during the election period on behalf of, or in the name of, the Council or on behalf of, or in the name of, a Councillor using Council resources if the electoral advertisement, handbill, pamphlet or notice has been certified by the Chief Executive Officer under this section.
Section 3(1) "electoral advertisement, handbill, pamphlet or notice" means an advertisement, handbill, pamphlet or notice that contains electoral matter, but does not include an advertisement in a newspaper announcing the holding of a meeting;
"publish" means publish by any means including by publication on the Internet
Section 3(1A) "electoral matter" means matter, which is intended or likely to affect voting in an election but does not include any electoral material produced by or on behalf of the returning officer for the purposes of conducting an election.
Section 3 (1B) Without limiting the generality of the definition of "electoral matter", matter is to be taken to be intended or likely to affect voting in an election if it contains an express or implicit reference to, or comment on —
a) The election, or
b) A candidate in the election, or
c) An issue submitted to, or otherwise before, the voters in connection with the election.
8.2 Statement of Caretaker Procedures
The Council is committed to fair and democratic elections and therefore adopts and endorses the following practices and legislative requirements.
This Statement of Caretaker Procedures is in two parts, addressing two fundamental policy principles.
a) Council Decision Making, and
b) Use of Council Resources.
8.3 Council Decision Making
It is an established democratic principle that elected bodies should not unnecessarily bind an incoming government during an election period. The Council therefore commits to the principle that it will make every endeavour to avoid making decisions that inappropriately bind the incoming Council. This includes a commitment to comply with the requirements of section 93A of the Act, relating to “Major Policy Decisions”, as well as with the policies specified below in relation to “Significant Decisions”.
8.4 Major Policy Decisions:- Section 93A of the Act
Section 93A of the Act prohibits the making of “Major Policy Decisions” during the election period, which is from Entitlement day until 6:00 pm on the Election Day.
“A Major Policy decision means any decision-
• relating to the employment or remuneration of a Chief Executive Officer under section 94, other than a decision to appoint an acting Chief Executive Officer
• to terminate the appointment of a Chief Executive Officer under section 94
• to enter into a contract the total value of which exceeds whichever is the greater of $100,000 or such higher amount as may be fixed by Order in Council under Section 186(1), or 1% of the Council's revenue from rates in the preceding financial year;
• to exercise any power under Section 193 if the sum assessed under Section 193(5A) in respect of the proposal exceeds whichever is the greater of $100,000 or 1% of the Council's revenue from rates in the preceding financial year.”
If the Council considers that there are extraordinary circumstances where the municipality or the local community would be significantly disadvantaged by the Council not making a particular Major Policy Decision, the Council will, by resolution, request an exemption from the Minister for Local Government, in accordance with section 93A(2).
It shall be the ultimate responsibility of the Chief Executive Officer to determine if a matter is a major policy decision. Where possible, the Chief Executive Officer will ensure that matters are scheduled for Council to ensure that major policy decisions are solved prior to the commencement of the Election Period or scheduled for determination by the incoming Council.
8.5 Significant Decisions
In addition to the decisions specified in section 93A of the Act, the Council will avoid making other decisions during the election period that are of a significant nature and which would unnecessarily bind an incoming Council.
“Significant Decisions” include:
- Irrevocable decisions that commit the Council to substantial expenditure or significant actions, and
- Irrevocable decisions that will have a significant impact on the municipality or the community.
The Council acknowledges that it has an ongoing responsibility to act in the best interests of the community. Therefore, where a delay in making a “significant decision” would result in significant detriment to the local community, or the broader community, the Council may make an exception to this procedure. In making an exception to this procedure, the Council will deal with the matter impartially, having regard to the long term interests of the community and as transparently as possible.
8.6 Caretaker Statement
In order to facilitate compliance with its commitment to ensuring appropriate decision-making during elections, the Council adopts the following procedure.
During the election period, the Chief Executive Officer will ensure that a “Caretaker Statement” is included in every report submitted to the Council or to a special committee of Council for a decision.
The “Caretaker Statement” will specify one of the following:
- “The recommended decision is not a “Major Policy Decision”, as defined in section 93A of the Local Government Act 1989, or a “Significant Decision” within the meaning of the Code of Conduct”
- “The recommended decision is not a “Major Policy Decision” within the context of Local Government Act 1989. The recommended decision is a “Significant Decision” within the meaning of the Councillors’ Code of Conduct, but an exception should be made for the following reasons [insert reasons for making an exemption
- Explain how the negative consequences of a failure to make a decision on this matter outweigh the consequences of binding an incoming council”
- “The recommended decision is to seek an exemption from the Minister because the matter requires a “Major Policy Decision” within the meaning of section 93A of the Local Government Act 1989”
- “The recommended decision is a “Major Policy Decision”, as defined in section 93A of the Local Government Act 1989, but an extraordinary circumstances exemption was granted by the Minister for Local Government on [insert date]”.
During the election period, the Council will not make a decision on any matter or report that does not include one of these Caretaker Statements.
8.7 Use of Council Resources
It is an established democratic principle that public resources must not be used in a manner that would influence the way people vote in elections, except in regard to supporting the actual election process or provide an undue advantage for a candidate. This includes financial, human and material resources. The Council therefore commits to the principle that it will ensure that Council resources are not used inappropriately during a Council election. This includes a commitment to comply with the procedures outlined in this Code in addition to the requirements of section 55D of the Act (refer details in Section 8 above).
Prior to the election period for any election the Chief Executive Officer will ensure that all members of Council staff are advised in regard to the application of the caretaker procedures.
Council staff will not undertake an activity that may affect voting in the election, except where it only relates to the election process and is authorised by the Chief Executive Officer.
Council staff will not authorise, use or allocate a Council resource for any purpose that may influence voting in the election, except where it only relates to the election process and is authorised by the Chief Executive Officer.
Any staff member who considers that a particular use of Council resources may influence voting in an election or provide an undue advantage for a candidate should advise their Manager before authorising, using or allocating the resource. The Manager will seek appropriate advice in order to ascertain whether the use of Council, resources is in accordance with this statement.
In applying these principles, the Council understands that the following will be normal practice during election periods.
• Councillors may still make public statements and speak to the media during the election period, and
• Councillors are fully entitled to the same rights of public speech that apply to any other person and in particular, any person who is likely to become a candidate or who becomes a candidate in a Council election
Additionally, in applying these principles, the Council understands that the following arrangements will be normal practice during an election period:
• Civic functions and public events will only be organised and run by the Council administration if they are part of the normal services or operation of the Council in accordance with the Council Plan or other Council policies or strategic plans. No election material or active campaign is to be conducted at Council sponsored public events.
• Invitations for civic functions and events will continue to be issued under the name of the Mayor and Councillors and the Mayor will continue to preside over these events
• In acknowledgement of the Mayor and Councillors’ role as spokespersons for the Council and the Chief Executive Officer’s role as the primary spokesperson for the organisation, media services, including media releases and speeches, will be provided for the Mayor and Councillors by the administration during the election period provided these services are a part of normal services or operations of the Council
• Ward meetings will not be resourced by the Council during the election period
• Publication of Councillor biographical profiles on the Council’s website and other mediums will be limited to a photograph and contact details. Councillor information content will not be altered during the election period unless information is erroneous
• Bulk mail outs may be distributed by the administration during the election period if they are a part of normal services or operation of the Council. All such mail outs will be authorised and signed by the Chief Executive Officer
• Databases and mailing lists held by the organisation remain the property of the Council and are not to be made available to and used by Councillors for electoral purposes, and
• Neither the Council logo nor Council stationery shall be used by Councillors in any way that relates to the election
• No Council logos, Council stationery or other Yarra City Council branding will be used for, or linked to Councillors in any way that relates to the election
• Equipment and facilities provided to Councillors for the purpose of conducting normal Council business will not be used for campaigning purposes. Where Councillors have Council funded services, such as mobile telephone, a Personal Data Assistant or PDA (with or without the ability to make mobile calls), a telephone handset, a laptop computer, an integrated printer/fax/scanner/copier, an ADSL lines, and internet connections, and where it is impractical for Councillors to discontinue their use of these during the election, Councillors will reimburse the Council for usage of those services during the election period in accordance with the Councillor Expense Entitlement Policy. This does not apply to the provision of space for the Returning Officer at a Yarra City Council, Town Hall or other facility.
Additional Protocols:-
Council property/assets
No Campaign material is to be placed in or on any Council land, buildings, vehicle or any other Council-owned assets
Media releases
To be issued in the name of Mayor, as per normal business.
Community Noticeboards
To contain service information only. No political content.
Brochures
To contain service information only. No political content.
Advertisements
Advertisements are to be service based, as required.
Speeches
Mayor to deliver speeches at official functions as per normal Council business.
Media monitoring
Media monitoring is to be determined by the Executive Manager Governance and Communications.
Media Advice
No media advice or assistance will to be provided to Councillors in relation to the election.
Council staff
Council staff will not:
(a) be involved in assisting Councillors/candidates in any aspect of election campaigns, concerning arranging meetings, booking venues, leaving/taking messages, etc.
(b) provide advice, assistance or information to Councillors/candidates on any aspect of an election campaign.
Expenses incurred by Councillors
Payment or reimbursement for out of pocket expenses should only apply to necessary costs incurred during a Councillor’s normal course of duties and not in relation to an election campaign.
Yarra News
Photos of Councillors and ward features are to be removed. Councillor contact details will remain. Other stories quoting the Mayor as spokesperson for the Council and staff will be included as normal.
Council meetings
Ordinary Meetings - Arrangements to continue as normal.
Special Meetings - may be called in accordance with the provisions of the Local Government Act 1989.
Council Activities
Public consultation/public forums - will be arranged only where there is a statutory requirement to do so, eg as part of a Town Planning process, section 223 of the Act meetings, etc.
Elections
All questions or issues related to the electoral process are to be referred to the Returning Officer appointed to conduct the election. Council staff will not be able to provide advice or comment.
8.9 Information
The Council recognises that all election candidates have rights to information from the Council administration. However, it is important that sitting Councillors continue to receive information that is necessary to fulfil their elected roles. Neither Councillors nor candidates will receive information or advice from Council staff that might be perceived to support election campaigns, and transparency will be observed and practised in the provision of all information and advice during the Election Period.
Information and briefing material prepared by staff for Councillors during the Election Period will relate only to factual matters or to existing Council policies and services. All such requests are to be issued through the offices of the responsible Council Director who will maintain a register of requests made and advice provided. This document will then be passed to the Governance Unit at the end of each week during the Election period. Such information will not relate to new policy development, new projects or matters that are the subject of public or election debate or that might be perceived to be connected with a candidate's election campaign.
An Information Request Register will be maintained by the Governance Unit during the Election Period. This Register will be a public document that records all requests for information by Councillors and candidates, and the responses given to those requests. Only information that can be reasonably accessed will be released.
All requests for information are to be directed to the Chief Executive Officer or in his/her absence the Executive Manager Governance.
8.10 Publicity
It is recognised that Council publicity is intended to promote normal services or operations of the Council. Council publicity will not be used in any way that might be construed as intended to influence the outcome of the Council election.
During the Election Period, no Council employee may make any public statement that could be construed as influencing the election. This does not include statements of clarification that are approved by the Chief Executive Officer.
During the Election Period, publicity campaigns, other than for the purpose of conducting the election, will be avoided. Where a publicity campaign is deemed necessary for a Council service or operation, the Chief Executive Officer must approve it. In any event, Council publicity during the Election Period will be restricted to promoting the normal services or operations of the Council.
Any requests for media advice or assistance from Councillors during the Election Period will be channelled through the Chief Executive Officer. In any event, no media advice and/or assistance or media releases will be provided in relation to election campaign matters, or in regard to publicity that involves specific Councillors.
Councillors will not use their position as an elected representative or their access to Council staff and other Council resources to gain media attention in support of matters that could be construed as relating to an election campaign.
Councillor participation in Community Festivals and events should promote Council as a whole and not be used or be construed to gain advantage in support of an election campaign.
Information published on Council’s website with regard to sitting Councillors will be limited to statements of facts about their roles and responsibilities as a Councillor. For example, contact details, roles and responsibilities as assigned by Council resolution.
8.11 Assistance to Candidates
The Council affirms that all candidates for the Council election will be treated equally.
Any assistance and advice to be provided to candidates as part of the conduct of the Council Election will be provided equally to all candidates. The types of assistance that are available will be documented and communicated to all candidates in advance.
All election related enquiries from candidates, whether sitting Councillors or not, will be directed to the Returning Officer or, where the matter is outside the responsibilities of the Returning Officer, to the Chief Executive Officer or the Manager Governance.
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