2019-12-19 Ordinary Meeting Agenda

ORDINARY MEETING AGENDA                                                          19 DECEMBER 2019


      (a)   is serving a period of imprisonment; or
      (b)   is liable to serve a period of imprisonment, even though the person has been released
            from imprisonment (on parole or leave of absence, for example); or
      (c)   would be serving a term of imprisonment had the term of imprisonment not been
            suspended under the Penalties and Sentences Act 1992, section 144.
(3)   A person automatically stops being a councillor when the person becomes a prisoner.
This provision applies regardless of whether there is an appeal against the conviction and/or
sentence. As such, the councillor has ceased to hold office. Theoretically, a former councillor is
required to provide a notice to the Minister, the Mayor and the CEO under section 158A of the Act
that they are no longer qualified to hold office but in practice that is unlikely given he will be in
custody. I have spoken to the Department last week pointing out the futility of a such a provision in
the Local Government Act in its practical application. Whether or not such a notice is given does not
impact on the loss of office.
2.    Councillor Vacancy
The Local Government Act makes provision for when a vacancy occurs during a local government
term. A vacancy can arise in a range of circumstances including resignation, death, missing two
consecutive Ordinary meetings without a leave of absence, becoming bankrupt, becoming a State
or Federal member or as per the current circumstance, by becoming a prisoner etc.
The way in which a councillor vacancy is managed depends, to a large extent, on when the vacancy
arises in the four year election cycle. Section 163 (5) of the Local Government Act provides as
follows:
(5)   If a councillor’s office becomes vacant within 6 months of when quadrennial elections are
      required to be held, the local government may decide not to fill the vacant office.
A vacancy that occurs prior to that time (i.e. in the first 3 ½ years) must be filled. As a general rule,
vacancies at that time are filled via a by-election although there are some nuances around that issue
that are not relevant in the current circumstance.
The Act certainly recognises that the circumstances are different in the final months of a 4 year term
and that a Council can decide not to fill the vacant office. If a Council does decide to fill the vacant
office within the final 6 months of a term, it does so via a Council appointment rather than a by-
election (see section 166 (5) and section166 (8) of the Local Government Act). The appointment
process works by Council calling for nominations and then shortlisting, interviewing and appointing
to the vacant councillor role. It is a seldom used provision for a good reason – if occurring towards
the end of the term, such a process occurs during the electioneering period for the quadrennial
election. Such an appointment process takes between 2 to 3 months and the earliest an
appointment could be made based on our scheduled Council meetings is 21 February 2020 – just
before the caretaker provisions commence.
My advice to Council is to not to fill the vacancy as it would be nonsensical to do so given the timing
and would result in an appointment process during a broader election process and result in the
appointment of someone to fill the vacancy for one Council meeting that would be held during the
caretaker period.
3.    Filling roles
Former Cr Frank Pardon held a number of roles on committees, working groups etc which now need
to be considered. Those roles are:
A.    Capital Works Executive – established by Council in November 2016 with a focus on
      streamlining delivery of our Capital Works program. The CWE contains two Councillor
      representatives with Cr Glasgow being the other Councillor representative. Cr Wellington is an
      ex officio member of the group. Council should appoint another Councillor as a member of the
      Capital Works Executive.


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