Notice of Meeting

 

 

 

 

 

bsc_logo_150dpi_rgb

 

 

 

Heritage Advisory Committee Meeting

 

 

A Heritage Advisory Committee Meeting of Byron Shire Council will be held as follows:

 

Venue

Conference Room, Station Street, Mullumbimby

Date

Tuesday, 17 November 2015

Time

2.00pm

 

 

 

 

Shannon Burt

Director Sustainable Environment and Economy                                                          I2015/1392

                                                                                                                                    Distributed 10/11/15

 

 


CONFLICT OF INTERESTS

What is a “Conflict of Interests” - A conflict of interests can be of two types:

Pecuniary - an interest that a person has in a matter because of a reasonable likelihood or expectation of appreciable financial gain or loss to the person or another person with whom the person is associated.

Non-pecuniary – a private or personal interest that a Council official has that does not amount to a pecuniary interest as defined in the Local Government Act (eg. A friendship, membership of an association, society or trade union or involvement or interest in an activity and may include an interest of a financial nature).

Remoteness – a person does not have a pecuniary interest in a matter if the interest is so remote or insignificant that it could not reasonably be regarded as likely to influence any decision the person might make in relation to a matter or if the interest is of a kind specified in Section 448 of the Local Government Act.

Who has a Pecuniary Interest? - a person has a pecuniary interest in a matter if the pecuniary interest is the interest of the person, or another person with whom the person is associated (see below).

Relatives, Partners - a person is taken to have a pecuniary interest in a matter if:

§  The person’s spouse or de facto partner or a relative of the person has a pecuniary interest in the matter, or

§  The person, or a nominee, partners or employer of the person, is a member of a company or other body that has a pecuniary interest in the matter.

N.B. “Relative”, in relation to a person means any of the following:

(a)   the parent, grandparent, brother, sister, uncle, aunt, nephew, niece, lineal descends or adopted child of the person or of the person’s spouse;

(b)   the spouse or de facto partners of the person or of a person referred to in paragraph (a)

No Interest in the Matter - however, a person is not taken to have a pecuniary interest in a matter:

§  If the person is unaware of the relevant pecuniary interest of the spouse, de facto partner, relative or company or other body, or

§  Just because the person is a member of, or is employed by, the Council.

§  Just because the person is a member of, or a delegate of the Council to, a company or other body that has a pecuniary interest in the matter provided that the person has no beneficial interest in any shares of the company or body.

Disclosure and participation in meetings

§  A Councillor or a member of a Council Committee who has a pecuniary interest in any matter with which the Council is concerned and who is present at a meeting of the Council or Committee at which the matter is being considered must disclose the nature of the interest to the meeting as soon as practicable.

§  The Councillor or member must not be present at, or in sight of, the meeting of the Council or Committee:

(a)   at any time during which the matter is being considered or discussed by the Council or Committee, or

(b)   at any time during which the Council or Committee is voting on any question in relation to  the matter.

No Knowledge - a person does not breach this Clause if the person did not know and could not reasonably be expected to have known that the matter under consideration at the meeting was a matter in which he or she had a pecuniary interest.

Participation in Meetings Despite Pecuniary Interest (S 452 Act)

A Councillor is not prevented from taking part in the consideration or discussion of, or from voting on, any of the matters/questions detailed in Section 452 of the Local Government Act.

Non-pecuniary Interests - Must be disclosed in meetings.

There are a broad range of options available for managing conflicts & the option chosen will depend on an assessment of the circumstances of the matter, the nature of the interest and the significance of the issue being dealt with.  Non-pecuniary conflicts of interests must be dealt with in at least one of the following ways:

§  It may be appropriate that no action be taken where the potential for conflict is minimal.  However, Councillors should consider providing an explanation of why they consider a conflict does not exist.

§  Limit involvement if practical (eg. Participate in discussion but not in decision making or vice-versa).  Care needs to be taken when exercising this option.

§  Remove the source of the conflict (eg. Relinquishing or divesting the personal interest that creates the conflict)

§  Have no involvement by absenting yourself from and not taking part in any debate or voting on the issue as if the provisions in S451 of the Local Government Act apply (particularly if you have a significant non-pecuniary interest)

RECORDING OF VOTING ON PLANNING MATTERS

Clause 375A of the Local Government Act 1993 – Recording of voting on planning matters

(1)   In this section, planning decision means a decision made in the exercise of a function of a council under the Environmental Planning and Assessment Act 1979:

(a)   including a decision relating to a development application, an environmental planning instrument, a development control plan or a development contribution plan under that Act, but

(b)   not including the making of an order under Division 2A of Part 6 of that Act.

(2)   The general manager is required to keep a register containing, for each planning decision made at a meeting of the council or a council committee, the names of the councillors who supported the decision and the names of any councillors who opposed (or are taken to have opposed) the decision.

(3)   For the purpose of maintaining the register, a division is required to be called whenever a motion for a planning decision is put at a meeting of the council or a council committee.

(4)   Each decision recorded in the register is to be described in the register or identified in a manner that enables the description to be obtained from another publicly available document, and is to include the information required by the regulations.

(5)   This section extends to a meeting that is closed to the public.

 


BYRON SHIRE COUNCIL

Heritage Advisory Committee Meeting

 

 

BUSINESS OF MEETING

 

1.    Apologies

2.    Declarations of Interest – Pecuniary and Non-Pecuniary

3.    Adoption of Minutes from Previous Meetings

4.    Business Arising From Previous Minutes

5.    Staff Reports

Sustainable Environment and Economy

5.1       Heritage Advisory Committee administration and meeting dates..................................... 4

5.2       Heritage Strategy.......................................................................................................... 126   

 

 


BYRON SHIRE COUNCIL

Staff Reports - Sustainable Environment and Economy                                     5.1

 

 

Staff Reports - Sustainable Environment and Economy

 

Report No. 5.1             Heritage Advisory Committee administration and meeting dates

Directorate:                 Sustainable Environment and Economy

Report Author:           Shannon Burt, Director Sustainable Environment and Economy

File No:                        I2015/1387

Theme:                         Ecology

                                      Development and Approvals

 

Summary:

The purpose of this report is to confirm the arrangements in place for the newly formed Heritage Advisory Committee (HAC), and seek confirmation of the current adopted Terms of Reference, and consideration and confirmation by the members of committee meeting dates for 2016.

 

  

 

RECOMMENDATION:

That the Heritage Advisory Committee:

 

1.       Endorse the Terms of Reference;

 

2.       Adopt the following dates for the Committee meetings for 2016, with all meetings commencing at 2.00pm:

 

Tuesday,16 February 2016

Tuesday,12 April 2016

Tuesday, 21 June 2016

Tuesday,16 August 2016

Tuesday,18 October 2016

Tuesday, 13 December 2016

 

 

Attachments:

 

1        Adopted Terms of Reference - Heritage Advisory Committee, E2015/47856 , page 6  

2        Adopted Policy No 15/004 Work Health Safety, E2015/32312 , page 13  

3        Adopted Policy 13/004 Procedure for Administration of Councils Code of Conduct, E2013/12510 , page 20  

4        Adopted Policy 13/003 Code of Conduct, E2013/12377 , page 48  

5        Privacy Management Plan , E2013/32774 , page 69  

 

 


 

Report

 

Council resolved at the Ordinary Meeting held 16 July 2015 to form a Heritage Advisory Committee as follows:

 

15-340 Resolved:

1. That Section 3 “Membership” of the draft Byron Shire Heritage Advisory Committee Terms of Reference at Attachment 1 be amended as follows:

a) Specify the Councillor member number as three;

b) Up to three Community members

2. That Council adopt the amended draft Byron Shire Heritage Advisory Committee Terms of Reference at Attachment 1 noting that in Section 3 “Membership” the community representatives composition is incomplete and will require confirmation through an advertised expression of interest process.

3. That the process at Table 1 be implemented for establishing the Byron Shire Heritage Advisory Committee, which includes delegating authority to the Councillor members of the Heritage Advisory Committee to convene and determine the Community Members through assessing the expressions of interest.

4. That the Councillor members for this committee are Crs Cameron, Richardson and Hunter.

(Cubis/Richardson)

 

The purpose of this report is to confirm the arrangements in place for the newly formed Heritage Advisory Committee (HAC), and seek confirmation of the current adopted Terms of Reference, and consideration and confirmation by the members of committee meeting dates for 2016.

 

Attached to this report for the purposes of discussion and confirmation are the following documents: HAC Terms of Reference, Code of Conduct Policy, Privacy Management Plan and Work Health Safety Policy.

 

The HAC’s Terms of Reference directs that the committee will meet at least four times per year or more frequently as circumstances require. In preparing the list of tentative meeting dates, consideration has been given to the proposed Schedule of Ordinary Meetings for 2016 and available committee dates.

 

In accordance with this process the following meeting dates are proposed:

 

Tentative Heritage Advisory Committee meeting dates with meetings to commence at 2.00pm:

 

Tuesday,16 February 2016

Tuesday,12 April 2016

Tuesday, 21 June 2016

Tuesday,16 August 2016

Tuesday,18 October 2016

Tuesday, 13 December 2016

 

Financial Implications

 

Nil.

 

Statutory and Policy Compliance Implications

 

The operations and meetings of the HAC are to be in accordance with the provisions of the HAC’s Terms of Reference.


BYRON SHIRE COUNCIL

Staff Reports - Sustainable Environment and Economy                          5.1 - Attachment 1

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

BYRON SHIRE COUNCIL

HERITAGE ADVISORY COMMITTEE

 

 

TERMS OF REFERENCE

 

 


INFORMATION ABOUT THIS DOCUMENT
(INTERNAL USE ONLY)

 

Date Adopted by Council

16 July, 2015

Resolution No.

15-340

Responsibility

Sustainable Environment and Economy

Review Timeframe

 

Last Review Date:

 

Next Scheduled Review Date

 

 

Document History

Doc No.

Date Amended

Details Comments eg Resolution No.

E2015/40566

 

Draft reported to 16 July 2015 Meeting

E2015/47856

27/7/15

Adopted with amendments as per  (res 15-340)

 

Further Document Information and Relationships

Related Legislation

Section 355, Local Government Act (1993)

Related Policies

Code of Conduct Policy 1.1
Work Health Safety Policy
Code of Meeting Practice Policy

Related Procedures/ Protocols, Statements, documents

 

 


Table of Contents

1.        Preamble. 4

2.        Purpose. 4

3.        Membership.. 4

4.        Invited Guests. 5

5.        Term... 5

6.        Pecuniary Interest 5

7.        Quorum... 5

8.        Confidentiality. 5

9.        Privacy. 5

10.     Election of Chairperson.. 5

11.     Voting.. 5

12.     Convening Meetings. 6

13.     Agenda Preparation.. 6

14.     Meeting practice. 6

15.     Public and Councillor Attendance. 6

16.     Section 377 Delegation.. 6

17.     Work Health Safety. 6

18.     Insurance. 6

19.     Grievance Procedure. 6

20.     Publicity. 6

21.     Membership Criteria. 7

 

1.      
Preamble

 

The Heritage Advisory Committee (HAC) is an advisory Committee of the Council and does not have executive power or authority to implement actions.

 

The role of the HAC is, independently of management, to report to Council and provide appropriate advice and recommendations on matters relevant to heritage management in the Shire.

 

2.       Purpose

 

The purpose of the Heritage Advisory Committee is to provide support and advice to Council to assist its’ operations on heritage matters.

 

Actions of the HAC that can assist to achieve this include: 

 

·   Assisting Council in the development of policies and strategies including the preparation of a Heritage Strategy and the management of natural and cultural heritage generally in Byron Shire local government area.

·   Advising Council staff, the Heritage Adviser and the Council on matters relating to the ongoing implementation of the Heritage Strategy (once completed).

·   Assisting Council to procure and allocate funding assistance and to recommend projects for which funding should be sought in line with the Heritage Strategy (once completed).

·   Providing access to the general community to distribute information and for public input into heritage management, eg, to nominate additional properties for assessment of heritage significance.

·   Advising Council on a range of heritage-related matters which are of interest to the community, in particular, by providing expertise, local knowledge and guidance on heritage matters and in relation to heritage assessments.

 

3.       Membership

 

Membership is to include:

 

·  3 Councillors

 

·  1 representative from each of the Shire’s known historical societies being:

Brunswick Valley

Byron Bay

Bangalow

Mullumbimby

 

·  1 representative each from the Bundjalung of Byron Bay Aboriginal Corporation (Arakwal) and the Tweed Byron Local Aboriginal Council.

 

·  3 Community representatives

 

Council may appoint an alternate for any Committee member position as recommended by the Heritage Advisory Committee.

 

Note:  The Director of Sustainable Environment and Economy or a staff delegate and Council’s Heritage Advisor will be available to attend to provide technical advice and guidance but will not have any voting entitlements on the committee.

 

 

 

4.       Invited Guests

 

Committee members may request through the Chair to seek further expertise and consultation and if necessary arrange attendance of a person providing the expertise at a Committee meeting.  Any request for information to be at no cost to Council unless a budget is allocated by Council and the expenditure has been authorised in writing by staff with requisite delegations.

 

5.       Term

 

·    Appointments to the Committee are in a voluntary capacity only.

·    The Committee may be dissolved/ created by Council resolution at any time. Council will appoint all representatives to the Committee, who shall be determined after a call for nominations by advertisement or through industry networks.

·    Extraordinary vacancies on the Committee may be filled by Council appointment on the advice of the Committee, or through public advertisement or as resolved by Council.

·    Members of the Committee shall cease to hold office:

If Council dissolves the Committee

By the death, mental incapacitation, bankruptcy or serving of a sentence for any offence but failure to pay a fine.

If a member provides a written resignation

If a member is absent for three consecutive meetings without having obtained leave of absence beforehand without a formal apology. 

 

6.       Pecuniary Interest

 

Any members of the Committee having a pecuniary interest in any matters being discussed by the Committee shall declare same at the meeting of the Committee and refrain from participating in the discussion. The interest will be recorded in the minutes.

 

7.       Quorum

 

A quorum of the Committee will be 50% plus one of the appointed members, which must include at least one Councillor.  If a quorum is not reached within half an hour of the appointed starting time, the meeting will be adjourned to a time determined by the Chairperson.

 

8.       Confidentiality

 

Members of the Committee will, in those circumstances where confidential matters are subject to deliberation, maintain confidentiality.

 

9.       Privacy

 

All group members are to abide by Council’s Privacy Management Plan (E2013/32774) relating to their access to personal information.

 

10.     Election of Chairperson

 

The position of Chairperson is to be elected from Councillors comprising the committee.

 

11.     Voting

 

Each member of the Committee is to have one vote.  Staff members participating on the committee do not have any voting entitlements.

 

A majority decision of the Committee comprises a majority of elected members present and voting on any item subject to the requirements of a quorum being met at the meeting.

 

12.     Convening Meetings

 

At least quarterly meetings will be held.

 

A meeting of the Committee may be convened in response to either the direction of Council or by the Chairperson of the Committee.

 

13.     Agenda Preparation

 

An agenda for each meeting containing a brief report on each item, is to be provided to Committee members and available on Council’s website at least 7 days prior to the meeting being held.

 

Committee members may request items for inclusion in future agendas, through the Chair.

 

 

14.     Meeting practice

 

The meetings be conducted in accordance this Constitution and where required reference to Council’s Code of Meeting Practice.

 

15.     Public and Councillor Attendance

 

Advisory Committee meetings are not public meetings as they have no executive function. Public transparency is provided for when the reports of these meetings are reported to Council or the Strategic Planning Committee. Any Councillor can attend Advisory Committee meetings and participate in debate but do not have a voting entitlement if not an appointed member.

 

16.     Section 377 Delegation

 

The Committee does not have any delegated functions pursuant to section 377 of the Local Government Act (1993) and does not have the power to direct staff.

 

17.     Work Health Safety

 

All group members are required to comply with the “Worker Responsibilities” as prescribed in the Work Health Safety Policy.

 

18.     Insurance

 

Council has in place ‘Councillors and Officers Liability Insurance’. The terms of this insurance provide that, among other things, coverage applies to ‘committee members of any special or advisory committee established by the policyholder under the Local Government Act’.

 

19.     Grievance Procedure

 

Grievances relating to matters before the Committee will be dealt with according to the Complaint Handling Procedures and Sanctions in Council’s Code of Conduct (Policy No. 13.003 E2013/12377).

 

20.     Publicity

 

Publicity relating to matters before the Committee and programs adopted by the Committee should be in the name of Byron Shire Council Heritage Advisory Committee and in accordance with Council Policy authorised by the Chairperson and the Media Communications Officer.

 

 

 

21.     Membership Criteria

 

Candidates for membership on the Committee will need to demonstrate their suitability on the basis of the following criteria:

 

·    Demonstrated extensive knowledge of and interest in local heritage

·    Experience in providing strategic input on heritage matters

·    Practical experience in promoting and protecting heritage

·    An understanding of the role of Local Government

·    A commitment to consultative processes

·    An ability to develop and sustain contacts with key individuals and groupings in the local community

·    The ability to effectively listen to, and cooperate with community members holding similar or different points of view

 

Membership shall be initially on a 12 month basis with the role and functions of the Committee reviewed and a report provided to the Council around their continued operation. Terms of membership will be reconsidered at this time.


BYRON SHIRE COUNCIL

Staff Reports - Sustainable Environment and Economy                 5.1 - Attachment 2

 

 

 

 

 

 

 

 

 

bsc_logo_150dpi_rgb

 

 

 

 

 

BYRON SHIRE COUNCIL

 

 

 

POLICY

 

 

WORK HEALTH SAFETY

 

 

 

 

 

 

 

 

 


BYRON SHIRE COUNCIL

Staff Reports - Sustainable Environment and Economy                          5.1 - Attachment 2

INFORMATION ABOUT THIS DOCUMENT

 

Date Adopted by Council

11 June 2015

Resolution No.

15/254

Policy Responsibility

Organisation Development

Review Timeframe

3 years

Last Review Date:

May 2015

Next Scheduled Review Date

May 2018

 

Document History

Doc No.

Date Amended

Details Comments eg Resolution No.

DM629061

September 2009

09-634

E2012/14879

November 2012

12-863

E2015/32312

May 2015

15-254

 

Further Document Information and Relationships

Related Legislation*

Work Health and Safety Act 2011 (WHS Act) and associated regulations

Related Policies

Workforce Plan #DM125121

Code of Practice – How to Manage

http://www.safeworkaustralia.gov.au/sites/swa/about/publications/pages/manage-whs-risks-cop

Related Procedures/ Protocols, Statements, documents

Safe Work Australia guidelines and resources

 

Note: Any reference to Legislation will be updated in the Policy as required. See website http://www.legislation.nsw.gov.au/ for current Acts, Regulations and Environmental Planning Instruments.

 

 


BYRON SHIRE COUNCIL

Staff Reports - Sustainable Environment and Economy                          5.1 - Attachment 2

 

TABLE OF CONTENTS

 

1.      OBJECTIVES............................................................................................................................... 2

2.      WHO IS A ‘WORKER’.................................................................................................................. 2

3.      POLICY STATEMENT................................................................................................................. 2

4.      RESPONSIBILITIES.................................................................................................................... 3

5.      COMPLIANCE WITH WORK HEALTH SAFETY REQUIREMENTS....................................... 4

6.      CONSULTATION......................................................................................................................... 4

7.      SUSTAINABILITY........................................................................................................................ 5

 


 

Policy No. ??

 

POLICY TITLE

WORK HEALTH SAFETY (WHS)

 

 

1.   OBJECTIVES

Council’s commitment is to the provision of a safe and healthy work environment for all our employees, volunteers, contractors, visitors and persons that may be affected by works undertaken by Council, through the elimination or minimisation of workplace risks.

 

 

2.   WHO IS A ‘WORKER’

 

“Worker” is defined in the WHS legislation as a person who carries out work in any capacity for a person conducting a business or undertaking, including work as:

 

(a)     an employee;

(b)     a contractor or subcontractor;

(c)     an employee of a contractor or subcontractor;

(d)        an employee of a labour hire company who has been assigned to work in the person’s business or undertaking;

(e)     an outworker;

(f)               an apprentice or trainee;

(g)     a student gaining work experience;

(h)     a volunteer;

(i)      a person of a class prescribed in the legislation.

 

 

3.   POLICY STATEMENT

 

Council’s commitment will be demonstrated by:

 

(a)     Allocating necessary resources to meet commitments and/or meeting commitments through design/redesign of services and projects within allocated resources.

(b)     Promoting a culture where harm to our people through work is unacceptable.

(c)     Developing and implementing health and safety standards that meet the minimum legislative requirements.

(d)     Adopting a risk management approach to achieve compliance and ensure the health and safety of employees, contractors, volunteers and visitors to Council workplaces.

(e)     Ensuring that plant, equipment and substances are safe and without risk to health, safety of personnel.

(f)      Investigating all accidents, incidents, and occurrences with control measures implemented and reviewed to ensure elimination of initial breakdown.

(g)     Communicating WHS through instruction, training and supervision to improve individuals’ understanding of workplace hazards, including safe work practices and emergency procedures.

(h)     Consulting between management, employees, volunteers, visitors and contractors on WHS issues.

(i)      Ensuring that employees, volunteers, visitors and contractors comply with appropriate WHS standards, codes of conduct and workplace directions to ensure their own and others health and safety at work.

(j)      Providing adequate systems and resources to effectively manage rehabilitation and return to work processes.

(k)     Implementing, maintaining and reviewing Health and Safety Management Systems in all operational areas.

(l)      Establishing measurable objectives and targets to ensure continuous improvement.

 

 

4.   RESPONSIBILITIES

 

 

While the obligation for each person is different, all persons must ensure that the way they carry out their work does not interfere with the health and safety of themselves and other persons at the place of work.

 

4.1.    Council’s Responsibilities

 

Council must ensure, so far as is reasonably practicable, the health and safety of:

 

(i)      Workers engaged, or caused to be engaged by the person, and

(ii)      Workers whose activities in carrying out work are influenced or directed by the person, while the workers are at work in the business or undertaking.

 

The Council has ultimate responsibility for allocating budgets and must ensure that sufficient allowance is made in budget allocation to address WHS.

 

The General Manager has ultimate responsibility for the implementation of Council’s WHS Protocol, reviewing overall organisational health and safety performance and health and safety performance review of executive management.

 

4.2.    Officer’s Responsibilities

 

Officers of Council have a duty to exercise ‘due diligence’ to ensure that Council complies with its duty to reasonably ensure health and safety. The definition of Officers includes anyone:

 

who makes, or participates in making decisions that affect the whole or a substantial part of a business or undertaking.

 

Council will fulfil these responsibilities through the appointed General Manager, Directors, Managers and senior staff who are responsible and accountable for the safety of workers including contractors, volunteers and Council property under their control or management.

 


 

 

4.3.    Workers’ Responsibility

 

For the purposes of this Policy, ‘worker’ has the same definition as in the WHS Act 2011 and includes:

 

·    Council staff

·    trainees, apprentices and cadets

·    work experience students and volunteers

·    contractors and sub-contractors

·    employees of contractors and sub-contractors

·    employees of a casual labour hire company

 

All workers have responsibility for:

 

(i)      Taking reasonable care for their own health and safety;

(ii)      Taking reasonable care that their acts or omissions do not adversely affect the health and safety or other persons;

(iii)     Following all WHS legislation, Council safety requirements and relevant codes of practice;

(iv)    Co-operating with management in the support of promotion of Health and Safety in the workplace;

(v)     Not undertaking any task without the relevant induction, training or competency;

 

(vi)    Promptly reporting all hazards, injuries and safety incidents;

 

(vii)    Presenting for work in a fit state that does not prevent them carrying out their duties in a safe and responsible manner.

 

 

5.   COMPLIANCE WITH WORK HEALTH SAFETY REQUIREMENTS

 

Councillors, Council employees, contractors, sub-contractors, volunteers and visitors to Council workplaces must observe Council’s health and safety policies, protocols, procedures and instructions. If a breach occurs, it may result in disciplinary action in accordance with procedures under the Local Government (State) Award, action under the Council’s Code of Conduct and/or expulsion or future exclusion from Council workplaces.

 

 


 

 

6.   CONSULTATION

 

6.1.    Consultation between:

 

(a)     Council and its staff;

(b)     Council and volunteers and visitors; and

(c)     Council and contractors and sub-contractors;

 

is an essential part of effectively managing health and safety in the workplace.

 

Council is committed to meeting its obligations to consult so that everyone can contribute to decisions about safe systems of work, policies and procedures designed to ensure the health, safety and welfare of everyone in Council workplaces.

 

6.2.    Involvement of Workers (which includes contractors and volunteers) at all levels is critical for ensuring a safe workplace. Council will:

 

(a)     Share relevant information about WHS with Workers.

(b)     Ensure that Workers are given the opportunity to express their views and to contribute in a timely fashion to the resolution of WHS issues at Council workplaces; and

(c)     Ensure the views of Workers are valued and taken into account.

 

6.3.    Council is committed to continuing with its WHS Committee/s, as they form an important part of the consultative process. These Committee/s provide a forum for discussion and formulation of possible recommendations for the resolution of issues brought before or identified by the Committees.

 

 

7.   SUSTAINABILITY

 

Council’s commitment to WHS supports social, economic and governmental sustainability by reducing risks to workers, minimising the economic impacts to individuals, the community, the local economy and Council that can arise from workplace injuries and through Council leading by example in promoting the health and safety of its workforce and community.


BYRON SHIRE COUNCIL

Staff Reports - Sustainable Environment and Economy                 5.1 - Attachment 3

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 


BYRON SHIRE COUNCIL

 

 

 

POLICY 13/004

 

 

Procedures for the Administration of Council's Code of Conduct

 

 

 

 

 

 

 

E2013/12510


BYRON SHIRE COUNCIL

Staff Reports - Sustainable Environment and Economy                          5.1 - Attachment 3

INFORMATION ABOUT THIS DOCUMENT
(INTERNAL USE ONLY)

 

Date Adopted by Council

14/2/13 Commence 1/3/13

Resolution No.

13-16

Policy Responsibility

General Manager

Review Timeframe

This Policy adopts the Model Procedures for the Administration of the Model Code of Conduct as prescribed by s440AA of the Local Government Act 1993. Any review must ensure continuing compliance with the prescribed Model Procedures.

There is no set timeframe for review, but this Policy must be reviewed if the Model Procedures prescribed under s440AA change.

Last Review Date:

January 2013

Next Scheduled Review Date

As required by the Local Government Act 1993 and associated Regulations.

 

Document History

Doc No.

Date Amended

Details Comments eg Resolution No.

#E2013/4582

New Policy created January 2013

Reported to Council 14/2/2013 Report #E2013/4320

#E2013/12510

1/3/2013

Resolution 13-16 commence 1/3/2013

 

Further Document Information and Relationships

Related Legislation

Local Government Act 1993
Local Government (General) Regulation 2005

Government Information (Public Access) Act 2009

Public Interest Disclosures Act 1994
NSW Ombudsman, Investigating complaints, A manual for investigators June 2008

Related Policies

Policy No 13/003 – Code of Conduct (E2013/12377)

Policy No 11/008 - Internal Reporting Policy (#DM1137087)

Privacy Management Plan (#214081)

Complaints Management Policy #1154370

Related Procedures/ Protocols, Statements, documents

DLG Circular 12-45 issued 19/12/2012

Information Protection Principles and Health Privacy Principles;

The Privacy Code of Practice for Local Government

 

 

 

 

NB: This administrative part of this Policy and any cross-references within the Policy may be amended without referral to Council, as procedures, policies, legislation etc are developed, reviewed or updated etc, to ensure ongoing administrative accuracy.

 

See website http://www.legislation.nsw.gov.au/ for current Acts, Regulations and Environmental Planning Instruments.

 


BYRON SHIRE COUNCIL

Staff Reports - Sustainable Environment and Economy                          5.1 - Attachment 3

 

TABLE OF CONTENTS

 

 

PART 1: INTRODUCTION................................................................................................................ 1

PART 2: DEFINITIONS...................................................................................................................... 1

PART 3: ADMINISTRATIVE FRAMEWORK................................................................................... 2

The establishment of a panel of conduct reviewers................................................................ 2

The appointment of Complaints Coordinators......................................................................... 3

PART 4: HOW MAY CODE OF CONDUCT COMPLAINTS BE MADE?...................................... 3

What is a “code of conduct complaint”?.................................................................................. 3

When must a code of conduct complaint be made?............................................................... 4

How may a code of conduct complaint about a council official other than the General Manager be made?.................................................................................................................................................. 4

How may a code of conduct complaint about the General Manager be made?.................... 4

PART 5: HOW ARE CODE OF CONDUCT COMPLAINTS TO BE MANAGED?....................... 5

How are code of conduct complaints about staff (other than the General Manager) to be dealt with?        5

How are code of conduct complaints about delegates of Council and Council committee members to be dealt with?................................................................................................................................ 5

How are code of conduct complaints about conduct reviewers to be dealt with?.................. 6

How are code of conduct complaints about administrators to be dealt with?......................... 6

How are code of conduct complaints about Councillors to be dealt with?.............................. 6

How are code of conduct complaints about the General Manager to be dealt with?............. 6

Referral of code of conduct complaints to external agencies................................................. 7

Disclosure of the identity of complainants............................................................................... 7

Code of conduct complaints made as public interest disclosures........................................... 8

Special complaints management arrangements..................................................................... 8

PART 6: PRELIMINARY ASSESSMENT......................................................................................... 9

Referral of code of conduct complaints to conduct reviewers................................................ 9

Preliminary assessment by a conduct reviewer.................................................................... 10

Referral back to the General Manager or Mayor for resolution............................................ 11

Complaints assessment criteria............................................................................................. 11

PART 7: OPERATIONS OF CONDUCT REVIEW COMMITTEES.............................................. 12

PART 8: INVESTIGATIONS............................................................................................................ 13

What matters may a conduct reviewer or conduct review committee investigate?............. 13

How are investigations to be commenced?........................................................................... 13

Written and oral submissions................................................................................................. 14

How are investigations to be conducted?.............................................................................. 15

Referral or resolution of a matter after the commencement of an investigation.................. 15

Draft investigation reports...................................................................................................... 15

Final investigation reports....................................................................................................... 16

Consideration of the final investigation report by council...................................................... 18

PART 9: RIGHTS OF REVIEW....................................................................................................... 19

Failure to comply with a requirement under these procedures............................................. 19

Practice rulings....................................................................................................................... 19

Requests for review............................................................................................................... 20

PART 10: PROCEDURAL IRREGULARITIES.............................................................................. 21

PART 11: PRACTICE DIRECTIONS.............................................................................................. 21

PART 12: REPORTING ON COMPLAINTS STATISTICS........................................................... 21

PART 13: CONFIDENTIALITY........................................................................................................ 22

 


BYRON SHIRE COUNCIL

Staff Reports - Sustainable Environment and Economy                          5.1 - Attachment 3

 

Policy No. 13/004

 

POLICY TITLE

PROCEDURES FOR THE ADMINISTRATION OF COUNCIL’S CODE OF CONDUCT

 

 

PART 1: INTRODUCTION

This Council Policy adopts the provisions set out in the Model Procedures for the Administration of the Model Code of Conduct (“the Model Code Procedures”) prescribed for the purposes of the administration of the Model Code of Conduct for Local Councils in NSW (“the Model Code”). The Model Code and Model Code Procedures are made under sections 440 and 440AA respectively of the Local Government Act 1993 (“the Act”) and the Local Government (General) Regulation 2005 (“the Regulation”).

 

Sections 440 and 440AA of the Act require Council to adopt a Code of Conduct and Procedures for the Administration of the Code of Conduct that incorporate the provisions of the Model Code and Model Code Procedures respectively, which this Policy and Council’s Policy –Code of Conduct do.

 

PART 2: DEFINITIONS

 

For the purposes of the procedures, the following definitions apply:

 

“the Act”                                  the Local Government Act 1993

 

“administrator”                                     an administrator of a council appointed under the Act other than an administrator appointed under section 66

 

“Code of Conduct”                              Council’s Code of Conduct adopted under section 440 of the Act

 

“code of conduct complaint”               a complaint that alleges conduct on the part of a council official acting in their official capacity that on its face, if proven, would constitute a breach of the standards of conduct prescribed under the council’s code of conduct

 

“complainant”                                      a person who makes a code of conduct complaint

 

“complainant Councillor”                     a councillor who makes a code of conduct complaint

 

“Complaints Coordinator”                   a person appointed by the General Manager under these procedures as a complaints coordinator

 

“conduct reviewer”                              a person appointed under these procedures to review allegations of breaches of the code of conduct by councillors or the general manager

 

“Council committee”                           a committee established by resolution of council

 

“Council committee member”            a person other than a councillor or member of staff of a council who is a member of a council committee

 

“Councillor”                                         a person elected or appointed to civic office and includes a Mayor

 

“Council official”                                  includes councillors, members of staff of council, administrators, council committee members, conduct reviewers and delegates of council

 

“delegate of Council”                          a person (other than a councillor or member of staff of a council) or body and the individual members of that body to whom a function of the council is delegated

 

“the Division”                                       the Division of Local Government, Department of Premier and Cabinet

 

“investigator”                                       a conduct reviewer or conduct review committee

 

“the Regulation”                                  the Local Government (General) Regulation 2005

 

“subject person”                                  a person whose conduct is the subject of investigation by a Conduct Reviewer or conduct review committee under these procedures

 

 

 

PART 3: ADMINISTRATIVE FRAMEWORK

 

The establishment of a panel of conduct reviewers

 

3.1.    Council must by resolution establish a panel of conduct reviewers.

 

3.2.    Council may by resolution enter into an arrangement with one or more other councils to share a panel of conduct reviewers.

 

3.3.    The panel of conduct reviewers is to be established following a public expression of interest process.

 

3.4.    An expression of interest for members of the Council’s panel of conduct reviewers must, at a minimum, be advertised locally and in the Sydney metropolitan area.

 

3.5.    To be eligible to be a member of a panel of conduct reviewers, a person must, at a minimum, meet the following requirements:

 

a)      an understanding of local government, and

b)      knowledge of investigative processes including but not limited to procedural fairness requirements and the requirements of the Public Interest Disclosures Act 1994, and

c)      knowledge and experience of one or more of the following:

i)       investigations, or

ii)       law, or

iii)      public administration, or

iv)     public sector ethics, or

v)      alternative dispute resolution, and

d)      meet the eligibility requirements for membership of a panel of conduct reviewers under clause 3.6.

 

3.6.    A person is not be eligible to be a member of the panel of conduct reviewers if they are

a)      a Councillor, or

b)      a nominee for election as a Councillor, or

c)      an administrator, or

d)      an employee of a council, or

e)      a member of the Commonwealth Parliament or any State Parliament or Territory Assembly, or

f)       a nominee for election as a member of the Commonwealth Parliament or any State Parliament or Territory Assembly, or

g)      a person who has a conviction for an indictable offence that is not an expired conviction.

 

3.7.    A person is not precluded from being a member of Council’s panel of conduct reviewers if they are a member of another council’s panel of conduct reviewers.

 

3.8.    A panel of conduct reviewers established under this Part is to have a term of up to four years.

 

3.9.    Council may terminate the panel of conduct reviewers at any time by resolution.

 

3.10.  When the term of the conduct reviewers concludes or is terminated, Council must establish a new panel of conduct reviewers in accordance with the requirements of this Part.

 

3.11.  A person who was a member of a previous panel of conduct reviewers established by Council may be a member of subsequent panels of conduct reviewers established by Council.

 

The appointment of Complaints Coordinators

 

3.12.  The General Manager must appoint a member of staff of Council to act as a Complaints Coordinator. Where practicable, the Complaints Coordinator should be a senior and suitably qualified member of staff.

 

3.13.  The General Manager may appoint other members of staff to act as alternates to the Complaints Coordinator.

 

3.14.  The General Manager must not undertake the role of Complaints Coordinator.

 

3.15.  The person appointed as Complaints Coordinator or alternate Complaints Coordinator must also be a nominated Disclosures Coordinator appointed for the purpose of receiving and managing reports of wrongdoing under the Public Interest Disclosures Act 1994.

 

3.16.  The role of the Complaints Coordinator is to:

 

a)   coordinate the management of complaints made under Council’s Code of Conduct;

b)   liaise with and provide administrative support to a conduct reviewer or conduct review committee;

c)   liaise with the Division of Local Government; and

d)   arrange the annual reporting of Code of Conduct complaints statistics.

 

PART 4: HOW MAY CODE OF CONDUCT COMPLAINTS BE MADE?

 

What is a “code of conduct complaint”?

 

4.1     For the purpose of this Policy, a code of conduct complaint is a complaint that alleges conduct on the part of a council official acting in their official capacity that on its face, if proven, would constitute a breach of the standards of conduct prescribed under Council’s Code of Conduct.

 

4.2     Only code of conduct complaints are to be dealt with under these procedures. Complaints that do not satisfy the definition of a “code of conduct complaint” are to be dealt with under Council’s routine complaints management processes.

 

When must a code of conduct complaint be made?

 

4.3     A code of conduct complaint must be made within three months of the alleged conduct occurring or within three months of the complainant becoming aware of the alleged conduct.

 

4.4     A complaint made after 3 months may only be accepted if the General Manager, or, in the case of a complaint about the General Manager, the Mayor, is satisfied that there are compelling grounds for the matter to be dealt with under the Code of Conduct.

 

How may a code of conduct complaint about a council official other than the General Manager be made?

 

4.5     All code of conduct complaints other than those relating to the General Manager are to be made to the General Manager in writing.

 

4.6     Where a code of conduct complaint about a Council official other than the General Manager cannot be made in writing, the complaint must be confirmed with the complainant in writing as soon as possible after the receipt of the complaint.

 

4.7     In making a code of conduct complaint about a Council official other than the General Manager, the complainant may nominate whether they want the complaint to be resolved by mediation or by other alternative means.

 

4.8     The General Manager or, where the complaint is referred to a conduct reviewer, the conduct reviewer, must consider the complainant’s preferences in deciding how to deal with the complaint.

 

4.9     Notwithstanding clauses 4.5 and 4.6, where the General Manager becomes aware of a possible breach of the council’s code of conduct, he or she may initiate the process for the consideration of the matter under these procedures without a written complaint.

 

How may a code of conduct complaint about the General Manager be made?

 

4.10   Code of conduct complaints about the General Manager are to be made to the Mayor in writing.

 

4.11   Where a code of conduct complaint about the General Manager cannot be made in writing, the complaint must be confirmed with the complainant in writing as soon as possible after the receipt of the complaint.

 

4.12   In making a code of conduct complaint about the General Manager, the complainant may nominate whether they want the complaint to be resolved by mediation or by other alternative means.

 

4.13   The Mayor or, where the complaint is referred to a conduct reviewer, the conduct reviewer, must consider the complainant’s preferences in deciding how to deal with the complaint.

 

4.14   Notwithstanding clauses 4.10 and 4.11, where the Mayor becomes aware of a possible breach of the council’s code of conduct by the General Manager, he or she may initiate the process for the consideration of the matter under these procedures without a written complaint.

 

 

PART 5: HOW ARE CODE OF CONDUCT COMPLAINTS TO BE MANAGED?

 

How are code of conduct complaints about staff (other than the General Manager) to be dealt with?

 

5.1     The General Manager is responsible for making enquiries or causing enquiries to be made into code of conduct complaints about members of staff of Council and for determining the outcome of such complaints.

 

5.2     Where the General Manager decides not to make enquiries into a code of conduct complaint about a member of staff, the General Manager must give the complainant reasons in writing for their decision.

 

5.3     Without limiting clause 5.2, the General Manager may decide not to enquire into the matter on grounds that the complaint is trivial, frivolous, vexatious or not made in good faith.

 

5.4     Enquiries made into staff conduct that might give rise to disciplinary action must occur in accordance with the relevant industrial instrument or employment contract and make provision for procedural fairness including the right of an employee to be represented by their union.

 

5.5     Sanctions for staff depend on the severity, scale and importance of the breach and must be determined in accordance with any relevant industrial instruments or contracts.

 

How are code of conduct complaints about delegates of Council and Council committee members to be dealt with?

 

5.6     The General Manager is responsible for making enquiries or causing enquiries to be made into code of conduct complaints about delegates of Council and Council committee members and for determining the outcome of such complaints.

 

5.7     Where the General Manager decides not to make enquiries into a code of conduct complaint about a delegate of Council or a Council committee member, the General Manager must give the complainant reasons in writing for their decision.

 

5.8     Without limiting clause 5.7, the General Manager may decide not to enquire into the matter on grounds that the complaint is trivial, frivolous, vexatious or not made in good faith.

 

5.9     Sanctions for delegates of Council and/or members of Council committees depend on the severity, scale and importance of the breach and may include one or more of the following:

a)      censure;

b)      requiring the person to apologise to any person or organisation adversely affected by the breach;

c)      prosecution for any breach of the law;

d)      removing or restricting the person’s delegation;  or

e)      removing the person from membership of the relevant Council committee.

 

5.10   Prior to imposing a sanction against a delegate of Council or a Council committee member under clause 5.9, the General Manager or any person making enquiries on behalf of the General Manager must comply with the requirements of procedural fairness. In particular:

a)      the substance of the allegation (including the relevant provision/s of Council’s Code of Conduct that the alleged conduct is in breach of) must be put to the person the subject of the allegation, and

b)      the person must be given an opportunity to respond to the allegation, and

c)      the General Manager must consider the person’s response in deciding whether to impose a sanction under clause 5.9.

 

How are code of conduct complaints about conduct reviewers to be dealt with?

 

5.11   The General Manager must refer all code of conduct complaints about conduct reviewers to the Division for its consideration.

 

5.12   The General Manager must notify the complainant of the referral of their complaint in writing.

 

5.13   The General Manager must implement any recommendation made by the Division as a result of its consideration of a code of conduct complaint about a conduct reviewer.

 

How are code of conduct complaints about administrators to be dealt with?

 

5.14   The General Manager must refer all code of conduct complaints about administrators to the Division for its consideration.

 

5.15   The General Manager must notify the complainant of the referral of their complaint in writing.

 

How are code of conduct complaints about Councillors to be dealt with?

 

5.16   The General Manager must refer the following code of conduct complaints about Councillors to the Division:

 

a)      complaints alleging a breach of the pecuniary interest provisions of the Act;

b)      complaints alleging a failure to comply with a requirement under the Code of Conduct to disclose and appropriately manage conflicts of interests arising from reportable political donations (see section 328B);

c)      complaints alleging a breach of Part 8 of the Code of Conduct relating to the maintenance of the integrity of the Code; and

d)      complaints the subject of a special complaints management arrangement with the Division under clause 5.40.

 

5.17   Where the General Manager refers a complaint to the Division under clause 5.16, the General Manager must notify the complainant of the referral in writing.

 

5.18   Where the General Manager considers it to be practicable and appropriate to do so, the General Manager may seek to resolve code of conduct complaints about Councillors, other than those requiring referral to the Division under clause 5.16, by alternative means such as, but not limited to, explanation, counselling, training, mediation, informal discussion, negotiation or apology instead of referring them to the Complaints Coordinator under clause 5.20.

 

5.19   Where the General Manager resolves a code of conduct complaint under clause 5.18 to the General Manager’s satisfaction, the General Manager must notify the complainant in writing of the steps taken to resolve the complaint and this shall finalise the consideration of the matter under these procedures.

 

5.20   The General Manager must refer all code of conduct complaints about Councillors other than those referred to the Division under clause 5.16 or resolved under clause 5.18 to the Complaints Coordinator.

 

How are code of conduct complaints about the General Manager to be dealt with?

 

5.21   The Mayor must refer the following code of conduct complaints about the General Manager to the Division:

a)      complaints alleging a breach of the pecuniary interest provisions of the Act;

b)      complaints alleging a breach of Part 8 of the Code of Conduct relating to the maintenance of the integrity of the Code; and

c)      complaints the subject of a special complaints management arrangement with the Division under clause 5.40.

 

5.22   Where the Mayor refers a complaint to the Division under clause 5.21, the Mayor must notify the complainant of the referral in writing.

 

5.23   Where the Mayor considers it to be practicable and appropriate to do so, he or she may seek to resolve code of conduct complaints about the General Manager, other than those requiring referral to the Division under clause 5.21, by alternative means such as, but not limited to, explanation, counselling, training, mediation, informal discussion, negotiation or apology instead of referring them to the Complaints Coordinator under clause 5.25.

 

5.24   Where the Mayor resolves a code of conduct complaint under clause 5.23 to the Mayor’s satisfaction, the Mayor must notify the complainant in writing of the steps taken to resolve the complaint and this shall finalise the consideration of the matter under these procedures.

 

5.25   The Mayor must refer all code of conduct complaints about the General Manager other than those referred to the Division under clause 5.21 or resolved under clause 5.23 to the Complaints Coordinator.

 

Referral of code of conduct complaints to external agencies

 

5.26   The General Manager, Mayor or a conduct reviewer or conduct review committee may, at any time, refer a code of conduct complaint to an external agency or body such as, but not limited to, the Division, the Independent Commission Against Corruption, the NSW Ombudsman or the Police for its consideration, where they consider such a referral is warranted.

 

5.27   Where the General Manager, Mayor, conduct reviewer or conduct review committee refers a complaint to an external agency or body under clause 5.26, they must notify the complainant of the referral in writing where it is appropriate for them to do so.

 

5.28   Referral of a matter to an external agency or body shall finalise consideration of the matter under the code of conduct unless the Council is subsequently advised otherwise by the referral agency or body.

 

Disclosure of the identity of complainants

 

5.29   In dealing with matters under these procedures, information that identifies or tends to identify complainants is not to be disclosed unless:

a)      the complainant consents in writing to the disclosure;

b)      it is generally known that the complainant has made the complaint as a result of the complainant having voluntarily identified themselves as the person who made the complaint;

c)      it is essential, having regard to procedural fairness requirements, that the identifying information be disclosed;

d)      a conduct reviewer or conduct review committee is of the opinion that disclosure of the information is necessary to investigate the matter effectively; or

e)      it is otherwise in the public interest to do so.

 

5.30   Clause 5.29 does not apply to code of conduct complaints made by Councillors about other Councillors or the General Manager.

 

5.31   Where a Councillor makes a code of conduct complaint about another Councillor or the General Manager and the complainant Councillor considers that compelling grounds exist that would warrant information that identifies or tends to identify them as the complainant not to be disclosed, they may request in writing that such information not be disclosed.

 

5.32   A request made by a complainant Councillor under clause 5.31 must be made at the time they make a code of conduct complaint and must state the grounds upon which the request is made.

 

5.33   The General Manager or Mayor or, where the matter is referred, a conduct reviewer or conduct review committee must consider a request made under clause 5.31 before disclosing information that identifies or tends to identify the complainant Councillor but are not obliged to comply with the request.

 

5.34   Where a complainant Councillor makes a request under clause 5.31, the General Manager or Mayor or, where the matter is referred, a conduct reviewer or conduct review committee shall notify the Councillor in writing of their intention to disclose information that identifies or tends to identify them prior to disclosing the information.

 

Code of conduct complaints made as public interest disclosures

 

5.35   Code of conduct complaints that are made as public interest disclosures under the Public Interest Disclosures Act 1994 are to be managed in accordance with the requirements of that Act, Council’s Internal Reporting Policy and any guidelines issued by the NSW Ombudsman that relate to the management of public interest disclosures.

 

5.36   For a code of conduct complaint to be dealt with as a public interest disclosure, the complainant must state at the outset and in writing at the time of making the complaint that it is made as a public interest disclosure.

 

5.37   Where a Councillor makes a code of conduct complaint about another Councillor or the General Manager as a public interest disclosure, before the matter may be dealt with under these procedures, the complainant Councillor must consent in writing to the disclosure of their identity as the complainant.

 

5.38   Where a complainant Councillor declines to consent to the disclosure of their identity as the complainant under clause 5.37, the General Manager or the Mayor must refer the complaint to the Division for consideration. Such a referral must be made under section 26 of the Public Interest Disclosures Act 1994.

 

Special complaints management arrangements

 

5.39   The General Manager may request in writing that the Division enter into a special complaints management arrangement with Council in relation to code of conduct complaints made by or about a person or persons.

 

5.40   Where the Division receives a request under clause 5.39, it may agree to enter into a special complaints management arrangement where it is satisfied that the number or nature of code of conduct complaints made by or about a person or persons has:

 

a)      imposed an undue and disproportionate cost burden on the Council’s administration of its code of conduct, or

b)      impeded or disrupted the effective administration by the Council of its Code of Conduct, or

c)      impeded or disrupted the effective functioning of the Council.

 

5.41   A special complaints management arrangement must be in writing and must specify the following:

 

a)      the code of conduct complaints the arrangement relates to, and

b)      the period that the arrangement will be in force.

 

5.42   The Division may by notice in writing, amend or terminate a special complaints management arrangement at any time.

 

5.43   While a special complaints management arrangement is in force, an officer of the Division (the assessing Divisional officer) must undertake the preliminary assessment of the code of conduct complaints specified in the arrangement in accordance with the requirements of these procedures except as provided by clause 5.44 below.

 

5.44   Where, following a preliminary assessment, the assessing Divisional officer determines that a code of conduct complaint warrants investigation by a conduct reviewer or a conduct review committee, the assessing Divisional officer shall notify the Complaints Coordinator in writing of their determination and the reasons for their determination. The Complaints Coordinator must comply with the recommendation of the assessing Divisional officer.

 

5.45   Prior to the expiry of a special complaints management arrangement, the Division shall, in consultation with the General Manager, review the arrangement to determine whether it should be renewed or amended.

 

5.46   A special complaints management arrangement shall expire on the date specified in the arrangement unless renewed under clause 5.45.

 

 

PART 6: PRELIMINARY ASSESSMENT

 

Referral of code of conduct complaints to conduct reviewers

 

6.1     The Complaints Coordinator must refer all code of conduct complaints about Councillors or the General Manager submitted to the Complaints Coordinator within 21 days of receipt of a complaint by the General Manager or the Mayor.

 

6.2     For the purposes of clause 6.1, the Complaints Coordinator will refer a complaint to a conduct reviewer selected from:

a)      a panel of conduct reviewers established by Council, or

b)      a panel of conduct reviewers established by an organisation approved by the Chief Executive of the Division.

 

6.3     In selecting a suitable conduct reviewer, the Complaints Coordinator may have regard to the qualifications and experience of members of the panel of conduct reviewers.

 

6.4     A conduct reviewer must not accept the referral of a code of conduct complaint where:

a)      they have a conflict of interests in relation to the matter referred to them;

b)      a reasonable apprehension of bias arises in relation to their consideration of the matter;

c)      they or their employer has entered into one or more contracts with Council in the 2 years preceding the referral and they or their employer have received or expect to receive payments under the contract or contracts of a cumulative value that exceeds $100K;

d)      at the time of the referral, they or their employer are Council’s legal service providers or are a member of a panel of legal service providers appointed by Council.

 

6.5     For the purposes of clause 6.4(a), a conduct reviewer will have a conflict of interests in a matter where a reasonable and informed person would perceive that they could be influenced by a private interest when carrying out their public duty (see clause 4.1 of the Council’s Code of Conduct).

 

6.6     For the purposes of clause 6.4(b), a reasonable apprehension of bias arises where a fair-minded observer might reasonably apprehend that the conduct reviewer might not bring an impartial and unprejudiced mind to the matter referred to the conduct reviewer.

 

6.7     Where the Complaints Coordinator refers a matter to a conduct reviewer, they will provide the conduct reviewer with a copy of the code of conduct complaint and any other information relevant to the matter held by Council.

 

6.8     The Complaints Coordinator must notify the complainant in writing that the matter has been referred to a conduct reviewer and advise which conduct reviewer the matter has been referred to.

 

Preliminary assessment by a conduct reviewer

 

6.9     The conduct reviewer is to undertake a preliminary assessment of a complaint referred to them by the Complaints Coordinator for the purposes of determining how the complaint is to be managed.

 

6.10   The conduct reviewer may determine to do one or more of the following in relation to a complaint referred to them by the Complaints Coordinator:

a)   to take no action;

b)   to resolve the complaint by alternative and appropriate strategies such as, but not limited to, explanation, counselling, training, mediation, informal discussion, negotiation or apology;

c)   to refer the matter back to the General Manager or, in the case of a complaint about the General Manager, the Mayor, for resolution by alternative and appropriate strategies such as, but not limited to, explanation, counselling, training, mediation, informal discussion, negotiation, or apology;

d)   to refer the matter to another agency or body such as, but not limited to, the ICAC, the NSW Ombudsman, the Division or the Police;

e)   to investigate the matter;

f)    to recommend that the Complaints Coordinator convene a conduct review committee to investigate the matter.

 

6.11   In determining how to deal with a matter under clause 6.10, the conduct reviewer must have regard to the complaint assessment criteria prescribed under clause 6.27.

 

6.12   The conduct reviewer may make such enquiries the conduct reviewer considers to be reasonably necessary to determine what option to exercise under clause 6.10.

 

6.13   The conduct reviewer may request the Complaints Coordinator to provide such additional information the conduct reviewer considers to be reasonably necessary to determine what option to exercise in relation to the matter under clause 6.10. The Complaints Coordinator will, as far as is reasonably practicable, supply any information requested by the conduct reviewer.

 

6.14   The conduct reviewer must refer to the Division any complaints referred to him or her that should have been referred to the Division under clauses 5.16 and 5.21.

 

6.15   The conduct reviewer must determine to take no action on a complaint that is not a code of conduct complaint for the purposes of these procedures.

 

6.16   Where the conduct reviewer completes their preliminary assessment of a complaint by determining to exercise an option under clause 6.10, paragraphs (a), (b) or (c), they must provide the complainant with written notice of their determination and provide reasons for it and this will finalise consideration of the matter under these procedures.

 

6.17   Where the conduct reviewer refers a complaint to another agency or body, they must notify the complainant of the referral in writing where it is appropriate for them to do so.

 

6.18   The conduct reviewer may only determine to investigate a matter or to recommend that a conduct review committee be convened to investigate a matter where they are satisfied as to the following:

a)      that the complaint is a “code of conduct complaint” for the purposes of these procedures; and

b)      that the alleged conduct, on its face, is sufficiently serious to warrant investigation; and

c)      that the matter is one that could not or should not be resolved by alternative means.

 

6.19   The conduct reviewer may only determine to recommend that a conduct review committee be convened to investigate a matter after consulting with the Complaints Coordinator and where they are satisfied that it would not be practicable or appropriate for the matter to be investigated by a sole conduct reviewer.

 

6.20   The conduct reviewer must complete their preliminary assessment of the complaint within 28 days of referral of the matter to them by the Complaints Coordinator.

 

6.21   The conduct reviewer is not obliged to give prior notice to or to consult with any person before making a determination in relation to their preliminary assessment of a complaint except as may be specifically required under these procedures.

 

Referral back to the General Manager or Mayor for resolution

 

6.22   Where the conduct reviewer determines to refer a matter back to the General Manager or to the Mayor to be resolved by alternative and appropriate means, they must write to the General Manager or, in the case of a complaint about the General Manager, to the Mayor, recommending the means by which the complaint may be resolved.

 

6.23   The conduct reviewer must consult with the General Manager or Mayor prior to referring a matter back to them under clause 6.22.

 

6.24   The General Manager or Mayor may decline to accept the conduct reviewer’s recommendation. Where the General Manager or Mayor declines to do so, the conduct reviewer may determine to deal with the complaint by other means under clause 6.10.

 

6.25   Where the conduct reviewer refers a matter back to the General Manager or Mayor under clause 6.22, the General Manager or, in the case of a complaint about the General Manager, the Mayor, is responsible for implementing or overseeing the implementation of the conduct reviewer’s recommendation.

 

6.26   Where the conduct reviewer refers a matter back to the General Manager or Mayor under clause 6.22, the General Manager, or, in the case of a complaint about the General Manager, the Mayor, must advise the complainant in writing of the steps taken to implement the conduct reviewer’s recommendation once these steps have been completed.

 

Complaints assessment criteria

 

6.27   In undertaking the preliminary assessment of a complaint, the conduct reviewer may have regard to the following considerations:

a)      whether the complaint is a “code of conduct complaint”;

b)      whether the complaint is trivial, frivolous, vexatious or not made in good faith;

c)      whether the complaint discloses prima facie evidence of a breach of the Code;

d)      whether the complaint raises issues that would be more appropriately dealt with by another agency or body;

e)      whether there is or was an alternative and satisfactory means of redress available to the complainant in relation to the conduct complained of;

f)       whether the complaint is one that can be resolved by alternative and appropriate strategies such as, but not limited to, explanation, counselling, training, informal discussion, negotiation or apology;

g)      whether the issue/s giving rise to the complaint have previously been addressed or resolved;

h)      whether the conduct complained of forms part of a pattern of conduct;

i)        whether there were mitigating circumstances giving rise to the conduct complained of;

j)        the seriousness of the alleged conduct;

k)      the significance of the conduct or the impact of the conduct for the Council;

l)        how much time has passed since the alleged conduct occurred; or

m)     such other considerations that the conduct reviewer considers may be relevant to the assessment of the complaint.

 

 

PART 7: OPERATIONS OF CONDUCT REVIEW COMMITTEES

 

7.1     Where a conduct reviewer recommends that the Complaints Coordinator convene a conduct review committee to investigate a matter, the conduct reviewer must notify the Complaints Coordinator of their recommendation and the reasons for their recommendation in writing.

 

7.2     The Complaints Coordinator must convene a conduct review committee comprising three conduct reviewers selected from:

 

a)      a panel of conduct reviewers established by Council; or

b)      a panel of conduct reviewers established by an organisation approved by the Chief Executive of the Division.

 

7.3     In selecting suitable conduct reviewers for membership of a conduct review committee convened under clause 7.2, the Complaints Coordinator may have regard to the following:

a)      the qualifications and experience of members of the panel of conduct reviewers, and

b)      any recommendation made by the conduct reviewer about the membership of the committee.

 

7.4     The conduct reviewer who made the preliminary assessment of the complaint must not be a member of a conduct review committee convened under clause 7.2.

 

7.5     A member of a panel of conduct reviewers may not be appointed to a conduct review committee where they would otherwise be precluded from accepting a referral of the matter to be considered by the committee under clause 6.4.

 

7.6     Where the Complaints Coordinator convenes a conduct review committee, they will advise the complainant in writing that the committee has been convened and the membership of the committee.

 

7.7     Where, after a conduct review committee has been convened, a member of the committee becomes unavailable to participate in further consideration of the matter, the Complaints Coordinator may appoint another person from a panel of conduct reviewers to replace them.

 

7.8     Meetings of a conduct review committee may be conducted in person or by teleconference.

 

7.9     The members of the conduct review committee must elect a chairperson of the committee.

 

7.10   A quorum for a meeting of the conduct review committee is two members.

 

7.11   Business is not to be conducted at any meeting of the conduct review committee unless a quorum is present.

 

7.12   If a quorum is not present at a meeting of the conduct review committee, it must be adjourned to a time and date that is specified.

 

7.13   Each member of the conduct review committee is entitled to one vote in relation to a matter. In the event of an equality of votes being cast, the chairperson will have a casting vote.

 

7.14   If the vote on a matter is not unanimous, then this should be noted in the report of the conduct review committee in which it makes its determination in relation to the matter.

 

7.15   The chairperson may make a ruling on questions of procedure and the chairperson’s ruling is to be final.

 

7.16   The conduct review committee may only conduct business in the absence of the public.

 

7.17   The conduct review committee must maintain proper records of its proceedings.

 

7.18   The Complaints Coordinator shall undertake the following functions in support of a conduct review committee:

a)      provide procedural advice where required;

b)      ensure adequate resources are provided including secretarial support;

c)      attend meetings of the conduct review committee in an advisory capacity; and

d)      provide advice about Council’s processes where requested.

 

7.19   The Complaints Coordinator must not be present at, or in sight of a meeting of, the conduct review committee where it makes its final determination in relation to the matter.

 

7.20   The conduct review committee may adopt procedures governing the conduct of its meetings that supplement these procedures. However any procedures adopted by the committee must not be inconsistent with these procedures.

 

 

PART 8: INVESTIGATIONS

 

What matters may a conduct reviewer or conduct review committee investigate?

 

8.1     A conduct reviewer or conduct review committee (hereafter referred to as an “investigator”) may investigate a code of conduct complaint that has been referred to them by the Complaints Coordinator and any matters related to or arising from that complaint.

 

8.2     Where an investigator identifies further separate possible breaches of the Code of Conduct that are not related to or arise from the code of conduct complaint that has been referred to them, they are to report the matters separately in writing to the General Manager, or, in the case of alleged conduct on the part of the General Manager, to the Mayor.

 

8.3     The General Manager or the Mayor is to deal with a matter reported to them by an investigator under clause 8.2 as if it were a new code of conduct complaint in accordance with these procedures.

 

How are investigations to be commenced?

 

8.4     The investigator must at the outset of their investigation provide a written notice of investigation to the subject person. The notice of investigation must:

a)      disclose the substance of the allegations against the subject person; and

b)      advise of the relevant provisions of the Code of Conduct that apply to the alleged conduct; and

c)      advise of the process to be followed in investigating the matter, and

d)      invite the subject person to make a written submission in relation to the matter within 28 days or such other reasonable period specified by the investigator in the notice; and

e)      provide the subject person the opportunity to address the investigator on the matter within such reasonable time specified in the notice.

 

8.5     The subject person may within 14 days of receipt of the notice of investigation, request in writing that the investigator provide them with such further information they consider necessary to assist them to identify the substance of the allegation against them. An investigator will only be obliged to provide such information that the investigator considers reasonably necessary for the subject person to identify the substance of the allegation against them.

 

8.6     An investigator may at any time prior to issuing a draft report, issue an amended notice of investigation to the subject person in relation to the matter referred to them.

 

8.7     Where an investigator issues an amended notice of investigation, they will provide the subject person with a further opportunity to make a written submission in response to the amended notice of investigation within 28 days or such other reasonable period specified by the investigator in the amended notice.

 

8.8     The investigator must also, at the outset of their investigation, provide written notice of the investigation to the complainant, the complaints coordinator and the General Manager, or in the case of a complaint about the General Manager, to the Mayor. The notice must:

a)      advise them of the matter the investigator is investigating, and

b)      in the case of the notice to the complainant, invite them to make a written submission in relation to the matter within 28 days or such other reasonable period specified by the investigator in the notice.

 

Written and oral submissions

 

8.9     Where the subject person or the complainant fails to make a written submission in relation to the matter within the period specified by the investigator in their notice of investigation or amended notice of investigation, the investigator may proceed to prepare their draft report without receiving such submissions.

 

8.10   The investigator may accept written submissions received outside the period specified in the notice of investigation or amended notice of investigation.

 

8.11   Prior to preparing a draft report, the investigator must give the subject person an opportunity to address the investigator on the matter being investigated. The subject person may do so in person or by telephone.

 

8.12   Where the subject person fails to accept the opportunity to address the investigator within the period specified by the investigator in the notice of investigation, the investigator may proceed to prepare a draft report without hearing from the subject person.

 

8.13   Where the subject person accepts the opportunity to address the investigator in person, they may have a support person or legal advisor in attendance. The support person or legal advisor will act in an advisory or support role to the subject person only. They must not speak on behalf of the subject person or otherwise interfere with or disrupt proceedings.

 

8.14   The investigator must consider all written and oral submissions made to them in relation to the matter.

 

How are investigations to be conducted?

 

8.15   Investigations are to be undertaken without undue delay.

 

8.16   Investigations are to be undertaken in the absence of the public and in confidence.

 

8.17   Investigators must make any such enquiries that may be reasonably necessary to establish the facts of the matter.

 

8.18   Investigators may seek such advice or expert guidance that may be reasonably necessary to assist them with their investigation or the conduct of their investigation.

 

8.19   An investigator may request that the complaints coordinator provide such further information that the investigator considers may be reasonably necessary for them to establish the facts of the matter. The complaints coordinator will, as far as is reasonably practicable, provide the information requested by the investigator.

 

Referral or resolution of a matter after the commencement of an investigation

 

8.20   At any time after an investigator has issued a notice of investigation and before they have issued a draft report, an investigator may determine to:

a)      resolve the matter by alternative and appropriate strategies such as, but not limited to, explanation, counselling, training, mediation, informal discussion, negotiation or apology;

b)      refer the matter to the General Manager, or, in the case of a complaint about the General Manager, to the Mayor, for resolution by alternative and appropriate strategies such as, but not limited to, explanation, counselling, training, mediation, informal discussion, negotiation or apology; or

c)      refer the matter to another agency or body such as, but not limited to, the ICAC, the NSW Ombudsman, the Division or the Police.

 

8.21   Where an investigator determines to exercise any of the options under clause 8.20 after the commencement of an investigation, they must do so in accordance with the requirements of Part 6 of these procedures relating to the exercise of these options at the preliminary assessment stage.

 

8.22   Where an investigator determines to exercise any of the options under clause 8.20 after the commencement of an investigation, they may by written notice to the subject person, the complainant, the complaints coordinator and the General Manager, or in the case of a complaint about the General Manager, the Mayor, discontinue their investigation of the matter.

 

8.23   Where the investigator discontinues their investigation of a matter under clause 8.22, this shall finalise the consideration of the matter under these procedures.

 

8.24   An investigator is not obliged to give prior notice to or to consult with any person before making a determination to exercise any of the options under clause 8.20 or to discontinue their investigation except as may be specifically required under these procedures.

 

Draft investigation reports

 

8.25   When an investigator has completed their enquiries and considered any written or oral submissions made to them in relation to a matter, they must prepare a draft of their proposed report.

 

8.26   The investigator must provide their draft report to the subject person and invite them to make a written submission in relation to it within 28 days or such other reasonable period specified by the investigator.

 

8.27   Where the investigator proposes to make adverse comment about any other person (an affected person) in their report, they must also provide the affected person with relevant extracts of their draft report containing such comment and invite the affected person to make a written submission in relation to it within 28 days or such other reasonable period specified by the investigator.

 

8.28   The investigator must consider written submissions received in relation to the draft report prior to finalising their report in relation to the matter.

 

8.29   The investigator may, after consideration of all written submissions received in relation to their draft report, make further enquiries into the matter. Where as a result of making further enquiries, the investigator makes any material change to their proposed report that makes new adverse comment about the subject person or an affected person, they must provide the subject person or affected person as the case may be with a further opportunity to make a written submission in relation to the new adverse comment.

 

8.30   Where the subject person or an affected person fails to make a written submission in relation to the draft report within the period specified by the investigator, the investigator may proceed to prepare and issue their final report without receiving such submissions.

 

8.31   The investigator may accept written submissions in relation to the draft report received outside the period specified by the investigator at any time prior to issuing their final report.

 

Final investigation reports

 

8.32   Where an investigator issues a notice of investigation they must prepare a final report in relation to the matter unless the investigation is discontinued under clause 8.22.

 

8.33   An investigator must not prepare a final report in relation to the matter at any time before they have finalised their consideration of the matter in accordance with the requirements of these procedures.

 

8.34   The investigator’s final report must:

a)      make findings of fact in relation to the matter investigated; and

b)      make a determination that the conduct investigated either,

i.        constitutes a breach of the Code of Conduct; or

ii.       does not constitute a breach of the Code of Conduct; and

c)      provide reasons for the determination.

 

8.35   Where the investigator determines that the conduct investigated constitutes a breach of the Code of Conduct, the investigator may make one or more of the following recommendations:

a)      that the Council revise any of its Policies or procedures;

b)      that the subject person undertake any training or other education relevant to the conduct giving rise to the breach;

c)      that the subject person be counselled for their conduct;

d)      that the subject person apologise to any person or organisation affected by the breach in such a time and form specified by the recommendation;

e)      that findings of inappropriate conduct be made public;

f)       in the case of a breach by the General Manager, that action be taken under the General Manager’s contract for the breach;

g)      in the case of a breach by a Councillor, that the Councillor be formally censured for the breach under section 440G of the Act; and/or

h)      in the case of a breach by a Councillor, that the Council resolves as follows:

i.        that the Councillor be formally censured for the breach under section 440G of the Act; and

ii.       that the matter be referred to the Division for further action under the misconduct provisions of the Act.

 

8.36   Where the investigator determines that the conduct investigated does not constitute a breach of the Code of Conduct, the investigator may make one or more of the following recommendations:

a)      that the Council revise any of its Policies or procedures; and/or

b)      that a person or persons undertake any training or other education.

 

8.37   In making a recommendation under clause 8.35, the investigator may have regard to the following:

a)      the seriousness of the breach;

b)      whether the breach can be easily remedied or rectified;

c)      whether the subject person has remedied or rectified their conduct;

d)      whether the subject person has expressed contrition;

e)      whether there were any mitigating circumstances;

f)       the age, physical or mental health or special infirmity of the subject person;

g)      whether the breach is technical or trivial only;

h)      any previous breaches;

i)        whether the breach forms part of a pattern of conduct;

j)        the degree of reckless intention or negligence of the subject person’

k)      the extent to which the breach has affected other parties or Council as a whole;

l)        the harm or potential harm to the reputation of Council or local government arising from the conduct;

m)     whether the findings and recommendations can be justified in terms of the public interest and would withstand public scrutiny;

n)      whether an educative approach would be more appropriate than a punitive one;

o)      the relative costs and benefits of taking formal enforcement action as opposed to taking no action or taking informal action; or

p)      what action or remedy would be in the public interest.

 

8.38   At a minimum, the investigator’s final report must contain the following information:

a)      a description of the allegations against the subject person;

b)      the relevant provisions of the Code of Conduct that apply to the alleged conduct investigated;

c)      a statement of reasons as to why the conduct reviewer considered that the matter warranted investigation;

d)      a statement of reasons as to why the conduct reviewer considered that the matter was one that could not or should not be resolved by alternative means;

e)      where the matter is investigated by a conduct review committee, a statement as to why the matter was one that warranted investigation by a conduct review committee instead of a sole conduct reviewer;

f)       a description of any attempts made to resolve the matter by use of alternative means;

g)      the steps taken to investigate the matter;

h)      the facts of the matter;

i)        the investigator’s findings in relation to the facts of the matter and the reasons for those findings;

j)        the investigator’s determination and the reasons for that determination;

k)      any recommendations.

 

8.39   The investigator must provide a copy of their report to the Complaints Coordinator, the subject person and the complainant.

 

8.40   Where the investigator has determined that there has not been a breach of the Code of Conduct, the Complaints Coordinator must provide a copy of the investigator’s report to the General Manager or, where the report relates to the General Manager’s conduct, to the Mayor and this will finalise consideration of the matter under these procedures.

 

8.41   Where the investigator has determined that there has been a breach of the Code of Conduct and makes a recommendation or recommendations under clause 8.35, paragraph (a), the Complaints Coordinator must provide a copy of the investigator’s report to the General Manager. Where the General Manager agrees with the recommendation/s, the General Manager is responsible for implementing the recommendation/s.

 

8.42   Where the investigator has determined that there has been a breach of the Code of Conduct and makes a recommendation or recommendations under clause 8.35, paragraphs (b) or (c), the Complaints Coordinator must provide a copy of the investigator’s report to the General Manager or, where the report relates to the General Manager’s conduct, to the Mayor. The General Manager is responsible for arranging the implementation of the recommendation/s where the report relates to a Councillor’s conduct. The Mayor is responsible for arranging the implementation of the recommendation/s where the report relates to the General Manager’s conduct.

 

8.43   Where the investigator has determined that there has been a breach of the Code of Conduct and makes a recommendation or recommendations under clause 8.35, paragraphs (d) to (h), the Complaints Coordinator must, where practicable, arrange for the investigator’s report to be reported to the next ordinary Council meeting for the Council’s consideration unless the meeting is to be held within the 4 weeks prior to an ordinary local government election, in which case the report must be reported to the first ordinary Council meeting following the election.

 

Consideration of the final investigation report by council

 

8.44   The role of Council in relation to a final investigation report is to impose a sanction where an investigator determines that there has been a breach of the Code of Conduct and makes a recommendation in their final report under clause 8.35, paragraphs (d) to (h).

 

8.45   Council is to close its meeting to the public to consider the final investigation report where it is permitted to do so under section 10A of the Act.

 

8.46   Where the complainant is a Councillor, they must absent themselves from the meeting and take no part in any discussion or voting on the matter. The complainant Councillor may absent themselves without making any disclosure of interests in relation to the matter unless otherwise required to do so under the Act or the Model Code.

 

8.47   Prior to imposing a sanction, the Council must provide the subject person with an opportunity to make an oral submission to the Council. The subject person is to confine their submission to addressing the investigator’s recommendation/s.

 

8.48   Once the subject person has completed their oral submission they must absent themselves from the meeting and, where they are a Councillor, take no part in any discussion or voting on the matter.

 

8.49   The Council must not invite oral submissions from other persons for the purpose of seeking to rehear evidence previously considered by the investigator.

 

8.50   Prior to imposing a sanction, the Council may by resolution:

a)      request that the investigator make additional enquiries and/or provide additional information to it in a supplementary report; or

b)      seek an opinion by the Division in relation to the report.

 

8.51   Council may, by resolution, defer further consideration of the matter pending the receipt of a supplementary report from the investigator or an opinion from the Division.

 

8.52   The investigator may make additional enquiries for the purpose of preparing a supplementary report.

 

8.53   Where the investigator prepares a supplementary report, they must provide copies to the Complaints Coordinator who shall provide a copy each to the Council, the subject person and the complainant.

 

8.54   The investigator is not obliged to notify or consult with any person prior to submitting the supplementary report to the Complaints Coordinator.

 

8.55   Council is only required to provide the subject person a further opportunity to address it on a supplementary report where the supplementary report contains new information that is adverse to them.

 

8.56   Council may by resolution impose one or more of the following sanctions on a subject person:

a)      that the subject person apologise to any person or organisation affected by the breach in such a time and form specified by the resolution;

b)      that findings of inappropriate conduct be made public;

c)      in the case of a breach by the General Manager, that action be taken under the General Manager’s contract for the breach;

d)      in the case of a breach by a Councillor, that the Councillor be formally censured for the breach under section 440G of the Act; and/or

e)      in the case of a breach by a Councillor:

i.        that the Councillor be formally censured for the breach under section 440G of the Act; and

ii.       that the matter be referred to the Division for further action under the misconduct provisions of the Act.

 

8.57   Council is not obliged to adopt the investigator’s recommendation/s. Where Council does not adopt the investigator’s recommendation/s, Council must resolve not to adopt the recommendation and state in its resolution the reasons for its decision.

 

8.58   Council may, by resolution, impose a sanction on the subject person under clause 8.56 different to the sanction recommended by the investigator in their final report.

 

8.59   Where Council resolves not to adopt the investigator’s recommendation/s, the Complaints Coordinator must notify the Division of Council’s decision and the reasons for it.

 

 

PART 9: RIGHTS OF REVIEW

 

Failure to comply with a requirement under these procedures

 

9.1     Where any person believes that a person has failed to comply with a requirement prescribed under these procedures, they may, at any time prior to Council’s consideration of an investigator’s final report, raise their concerns in writing with the Division.

 

Practice rulings

 

9.2     Where a subject person and an investigator are in dispute over a requirement under these procedures, either person may make a request in writing to the Division to make a ruling on a question of procedure (a practice ruling).

 

9.3     Where the Division receives a request in writing for a practice ruling, the Division may provide notice in writing of its ruling and the reasons for it to the person who requested it and to the investigator, where that person is different.

 

9.4     Where the Division makes a practice ruling, all parties are to comply with it.

 

9.5     The Division may decline to make a practice ruling. Where the Division declines to make a practice ruling, it will provide notice in writing of its decision and the reasons for it to the person who requested it and to the investigator, where that person is different.

 

Requests for review

 

9.6     A person the subject of a sanction imposed under Part 8 of these procedures other than one imposed under clause 8.56, paragraph (e), may, within 28 days of the sanction being imposed, seek a review of the investigator’s determination and recommendation by the Division.

 

9.7     A review under clause 9.6 may be sought on the following grounds:

a)      that the investigator has failed to comply with a requirement under these procedures;

b)      that the investigator has misinterpreted or misapplied the standards of conduct prescribed under the Code of Conduct; or

c)      that Council has failed to comply with a requirement under these procedures in imposing a sanction.

 

9.8     A request for a review made under clause 9.6 must be made in writing and must specify the grounds upon which the person believes the investigator or Council has erred.

 

9.9     The Division may decline to conduct a review, where the grounds upon which the review is sought are not sufficiently specified.

 

9.10   The Division may undertake a review of a matter without receiving a request under clause 9.6.

 

9.11   The Division will undertake a review of the matter on the papers. However, the Division may request that the Complaints Coordinator provide such further information that the Division considers reasonably necessary for it to review the matter. The Complaints Coordinator must, as far as is reasonably practicable, provide the information requested by the Division.

 

9.12   Where a person requests a review under clause 9.6, the Division may direct Council to defer any action to implement a sanction. Council must comply with a direction to defer action by the Division.

 

9.13   The Division must notify the person who requested the review and the Complaints Coordinator of the outcome of the Division’s review in writing and the reasons for its decision. In doing so, the Division may comment on any other matters the Division considers to be relevant.

 

9.14   Where the Division considers that the investigator or the council has erred, the Division may recommend that a decision to impose a sanction under these procedures be reviewed.

 

9.15   In the case of a sanction implemented by the General Manager or Mayor under clause 8.42, where the Division recommends that the decision to impose a sanction be reviewed:

a)      the Complaints Coordinator must provide a copy of the Division’s determination in relation to the matter to the General Manager or the Mayor;

b)      the General Manager or Mayor must review any action taken by them to implement the sanction; and

c)      the General Manager or Mayor must consider the Division’s recommendation in doing so.

 

9.16   In the case of a sanction imposed by Council by resolution under clause 8.56, where the Division recommends that the decision to impose a sanction be reviewed:

a)      the Complaints Coordinator must, where practicable, arrange for the Division’s determination to be tabled at the next ordinary Council meeting unless the meeting is to be held within the 4 weeks prior to an ordinary local government election, in which case it must be tabled at the first ordinary Council meeting following the election; and

b)      Council must:

i.        review its decision to impose the sanction;

ii.       consider the Division’s recommendation in doing so; and

iii.      resolve to either rescind or reaffirm its previous resolution in relation to the matter.

 

9.17   Where having reviewed its previous decision in relation to a matter under clause 9.16 Council resolves to reaffirm its previous decision, Council must state in its resolution its reasons for doing so.

 

 

PART 10: PROCEDURAL IRREGULARITIES

 

10.1   A failure to comply with these procedures does not, on its own, constitute a breach of the Code of Conduct except as may be otherwise specifically provided under the Code of Conduct.

 

10.2   A failure to comply with these procedures will not render a decision made in relation to a matter invalid where:

a)      the non-compliance is isolated and/or minor in nature;

b)      reasonable steps are taken to correct the non-compliance; or

c)      reasonable steps are taken to address the consequences of the non-compliance.

 

 

PART 11: PRACTICE DIRECTIONS

 

11.1   The Division may at any time issue a practice direction in relation to the application of these procedures.

 

11.2   The Division will issue practice directions in writing, by circular to all councils.

 

11.3   All persons performing a function prescribed under these procedures must consider the Division’s practice directions when performing the function.

 

 

PART 12: REPORTING ON COMPLAINTS STATISTICS

 

12.1   The Complaints Coordinator must arrange for the following statistics to be reported to the council within 3 months of the end of September of each year:

 

a)      the total number of code of conduct complaints made about Councillors and the General Manager under the Code of Conduct in the year to September;

b)      the number of code of conduct complaints referred to a conduct reviewer;

c)      the number of code of conduct complaints finalised by a conduct reviewer at the preliminary assessment stage and the outcome of those complaints;

d)      the number of code of conduct complaints investigated by a conduct reviewer;

e)      the number of code of conduct complaints investigated by a conduct review committee;

f)       without identifying particular matters, the outcome of code of conduct complaints investigated by a conduct reviewer or conduct review committee under these procedures;

g)      the number of matter reviewed by the Division and, without identifying particular matters, the outcome of the reviews; and

h)      The total cost of dealing with code of conduct complaints made about Councillors and the General Manager in the year to September, including staff costs.

 

12.2   The Council is to provide the Division with a report containing the statistics referred to in clause 12.1 within 3 months of the end of September of each year.

 

PART 13: CONFIDENTIALITY

 

13.1   Information about code of conduct complaints and the management and investigation of code of conduct complaints is to be treated as confidential and is not to be publicly disclosed except as may be otherwise specifically required or permitted under these procedures.

 


Model Code Procedure Flowchart

 


BYRON SHIRE COUNCIL

Staff Reports - Sustainable Environment and Economy                 5.1 - Attachment 4

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 


BYRON SHIRE COUNCIL

 

 

 

POLICY NO. 13/003

 

 

CODE OF CONDUCT

 

 

 

 

 

E2013/12377

 


BYRON SHIRE COUNCIL

Staff Reports - Sustainable Environment and Economy                          5.1 - Attachment 4

INFORMATION ABOUT THIS DOCUMENT
(INTERNAL USE ONLY)

 

Date Adopted by Council

29 March 1994

Resolution No.

 

Policy Responsibility

General Manager

Review Timeframe

Council is required by s440 of the Local Government Act 1993 to review its Code of Conduct within the first year of office and/or whenever the prescribed Model Code of Conduct changes

Last Review Date:

January 2013

Next Scheduled Review Date

January 2017 or as required by the Local Government Act 1993.

 

Document History

Doc No.

Date Amended

Details Comments eg Resolution No.

 

February 2005

Council adopted the Model Code of Conduct for Local Councils in NSW Dec 2004 as issued by the Department of Local Government

#534640

21/11/06

Res No. 06-746

#790333

28/8/08

Res No. 08-482

#886424

13/8/09

Res No. 09-633 reconfirmed existing Code of Conduct

#E2013/4326

14/2/2013

Reported to Council Res 13-16

E2013/12377

1/3/2013

Adopted to commence 1/3/2013 (Res 13-16)

 

Further Document Information and Relationships

Related Legislation

Local Government Act 1993
Local Government (General) Regulation 2005

Government Information (Public Access) Act 2009

Public Interest Disclosures Act 1994
NSW Ombudsman, Investigating complaints, A manual for investigators June 2008

Related Policies

Policy No 13/004 – Code of Conduct- Procedures for the Administration of Council’s E2013/12510

Policy No 11/008 - Internal Reporting Policy (#DM1137087)

Policy No 3.22 - Complaints Management Policy (#1154370)

Privacy Management Plan (#214081)

Related Procedures/ Protocols, Statements, documents

 

Procedure No 26 - Declaration of Gifts and Benefits  (#1198559)

 

DLG Circular 12-45 issued 19/12/2012

Information Protection Principles and Health Privacy Principles;

The Privacy Code of Practice for Local Government

 

 

NB: This administrative part of this Policy and any cross-references within the Policy may be amended without referral to Council, as procedures, policies, legislation etc are developed, reviewed or updated etc, to ensure ongoing administrative accuracy.

 

See website http://www.legislation.nsw.gov.au/ for current Acts, Regulations and Environmental Planning Instruments.


BYRON SHIRE COUNCIL

Staff Reports - Sustainable Environment and Economy                          5.1 - Attachment 4

 

 

TABLE OF CONTENTS

 

 

PART 1: INTRODUCTION................................................................................................................ 1

PART 2: PURPOSE OF THE CODE OF CONDUCT...................................................................... 1

PART 3: GENERAL CONDUCT OBLIGATIONS............................................................................ 2

General Conduct...................................................................................................................... 2

Fairness and equity.................................................................................................................. 2

Harassment and discrimination................................................................................................ 2

Development decisions............................................................................................................ 2

Binding Caucus Votes.............................................................................................................. 3

PART 4: CONFLICT OF INTERESTS.............................................................................................. 4

What is a pecuniary interest?................................................................................................... 4

What is a non-pecuniary conflict of interests?......................................................................... 4

Managing non-pecuniary conflict of interests.......................................................................... 5

Reportable Political Donations................................................................................................. 6

Loss of Quorum as a Result of Compliance with this Part...................................................... 6

Other business or employment................................................................................................ 7

Personal dealings with council................................................................................................. 7

PART 5: PERSONAL BENEFIT........................................................................................................ 8

Gifts and Benefits..................................................................................................................... 8

Token Gifts and Benefits......................................................................................................... 8

Gifts and benefits of value....................................................................................................... 8

PART 6: RELATIONSHIP BETWEEN COUNCIL OFFICALS...................................................... 10

Obligations of Councillors and administrators........................................................................ 10

Obligations of Staff................................................................................................................ 10

Obligations During Meetings.................................................................................................. 11

Inappropriate Interactions....................................................................................................... 11

PART 7: ACCESS TO INFORMATION AND COUNCIL RESOURCES..................................... 12

Councillor and Administrator Access to Information............................................................. 12

Councillors and Administrators to Properly Examine and Consider Information.................. 12

Refusal of Access to Documents.......................................................................................... 12

Use of Certain Council Information....................................................................................... 12

Use and Security of Confidential Information........................................................................ 13

Personal Information.............................................................................................................. 13

Use of Council Resources..................................................................................................... 13

Councillor Access to Council Buildings.................................................................................. 14

PART 8: MAINTAINING THE INTEGRITY OF THIS CODE........................................................ 15

Complaints Made for an Improper Purpose.......................................................................... 15

Detrimental Action.................................................................................................................. 15

Compliance with Requirements under this Code.................................................................. 15

Disclosure of Information about the Consideration of a Matter under this Code.................. 16

Complaints Alleging Breaches of this Part............................................................................. 16

PART 9: DEFINITIONS.................................................................................................................... 17

 

 

 

 

 

 

 

 


BYRON SHIRE COUNCIL

Staff Reports - Sustainable Environment and Economy                          5.1 - Attachment 4

 

Policy 13/003

 

POLICY TITLE

CODE OF CONDUCT

 

 

PART 1: INTRODUCTION

 

This Model Code of Conduct for Local Councils in NSW (“the Model Code of Conduct”) is made for the purposes of section 440 of the Local Government Act 1993 (“the Act”). Section 440 of the Act requires every council to adopt a code of conduct that incorporates the provisions of the Model Code. For the purposes of section 440 of the Act, the Model Code of Conduct comprises all parts of this document.

 

Councillors, administrators, members of staff of council, independent conduct reviewers, members of council committees including the conduct review committee and delegates of the council must comply with the applicable provisions of Council’s Code of Conduct in carrying out their functions as council officials. It is the personal responsibility of council officials to comply with the standards in the Code and regularly review their personal circumstances with this in mind.

 

Failure by a councillor to comply with the standards of conduct prescribed under this Code constitutes misconduct for the purposes of the Act. The Act provides for a range of penalties that may be imposed on councillors for misconduct, including suspension or disqualification from civic office.

 

Failure by a member of staff to comply with council’s Code of Conduct may give rise to disciplinary action.

 

A better conduct guide has also been developed to assist councils to review and enhance their codes of conduct. This guide supports this code and provides further information on the provisions in this code.

 

 

 

PART 2: PURPOSE OF THE CODE OF CONDUCT

 

The Model Code of Conduct sets the minimum requirements of conduct for council officials in carrying out their functions. The Model Code is prescribed by regulation.

 

The Model Code of Conduct has been developed to assist council officials to:

 

·    understand the standards of conduct that are expected of them

·    enable them to fulfil their statutory duty to act honestly and exercise a reasonable degree of care and diligence (section 439)

·    act in a way that enhances public confidence in the integrity of local government.

 

 


PART 3: GENERAL CONDUCT OBLIGATIONS

 

General Conduct

 

3.1    You must not conduct yourself in carrying out your functions in a manner that is likely to bring the council or holders of civic office into disrepute. Specifically, you must not act in a way that:

 

a)      contravenes the Act, associated regulations, council’s relevant administrative requirements and policies;

b)      is detrimental to the pursuit of the charter of a council;

c)      is improper or unethical;

d)      is an abuse of power or otherwise amounts to misconduct;

e)      causes, comprises or involves intimidation, harassment or verbal abuse;

f)       causes, comprises or involves discrimination, disadvantage or adverse treatment in relation to employment;

g)      causes, comprises or involves prejudice in the provision of a service to the community. (Schedule 6A)

 

3.2    You must act lawfully, honestly and exercise a reasonable degree of care and diligence in carrying out your functions under the Act or any other Act. (section 439)

 

3.3    You must treat others with respect at all times.

 

Fairness and equity

 

3.4    You must consider issues consistently, promptly and fairly. You must deal with matters in accordance with established procedures, in a non-discriminatory manner.

 

3.5    You must take all relevant facts known to you, or that you should be reasonably aware of, into consideration and have regard to the particular merits of each case. You must not take irrelevant matters or circumstances into consideration when making decisions.

 

Harassment and discrimination

 

3.6    You must not harass, discriminate against, or support others who harass and discriminate against colleagues or members of the public. This includes, but is not limited to harassment and discrimination on the grounds of sex, pregnancy, age, race, responsibilities as a carer, marital status, disability, homosexuality, transgender grounds or if a person has an infectious disease.

 

Development decisions

 

3.7    You must ensure that development decisions are properly made and that parties involved in the development process are dealt with fairly. You must avoid any occasion for suspicion of improper conduct in the development assessment process.

 

3.8    In determining development applications, you must ensure that no action, statement or communication between yourself and applicants or objectors conveys any suggestion of willingness to provide improper concessions or preferential treatment.

 


Binding Caucus Votes

 

3.9    You must not participate in binding caucus votes in relation to matters to be considered at a council or committee meeting.

 

3.10  For the purposes of clause 3.9, a binding caucus vote is a process whereby a group of councillors are compelled by a threat of disciplinary or other adverse action to comply with a predetermined position on a matter before the council or committee irrespective of the personal views of individual members of the group on the merits of the matter before the council or committee.

 

3.11  Clause 3.9 does not prohibit councillors from discussing a matter before the council or committee prior to considering the matter in question at a council or committee meeting or from voluntarily holding a shared view with other councillors on the merits of a matter.

 

3.12  Clause 3.9 does not apply to a decision to elect the Mayor or Deputy Mayor or to nominate a person to be a member of a council committee. .

 

 

 


PART 4: CONFLICT OF INTERESTS

 

4.1    A conflict of interests exists where a reasonable and informed person would perceive that you could be influenced by a private interest when carrying out your public duty.

 

4.2    You must avoid or appropriately manage any conflict of interests. The onus is on you to identify a conflict of interests and take the appropriate action to manage the conflict in favour of your public duty.

 

4.3    Any conflict of interests must be managed to uphold the probity of council decision-making. When considering whether or not you have a conflict of interests, it is always important to think about how others would view your situation.

 

4.4    Private interests can be of two types: pecuniary or non-pecuniary

 

What is a pecuniary interest?

 

4.5    A pecuniary interest is an interest that a person has in a matter because of a reasonable likelihood or expectation of appreciable financial gain or loss to the person. (section 442)

 

4.6    A person will also be taken to have a pecuniary interest in a matter if that person’s spouse or de facto partner or a relative of the person or a partner or employer of the person, or a company or other body of which the person, or a nominee, partner or employer of the person is a member, has a pecuniary interest in the matter. (section 443)

 

4.7    Pecuniary interests are regulated by Chapter 14, Part 2 of the Act. The Act requires that:

 

a)      councillors and designated persons lodge an initial and an annual written disclosure of interests that could potentially be in conflict with their public or professional duties (section 449)

 

b)      councillors and members of council committees disclose an interest and the nature of that interest at a meeting, leave the meeting and be out of sight of the meeting and not participate in discussions or voting on the matter (section 451)

 

c)      designated persons immediately declare, in writing, any pecuniary interest. (section 459)

 

4.8    Designated persons are defined at section 441 of the Act, and include, but are not limited to, the general manager and other senior staff of the council.

 

4.9    Where you are a member of staff of council, other than a designated person (as defined by section 441), you must disclose in writing to your supervisor or the general manager, the nature of any pecuniary interest you have in a matter you are dealing with as soon as practicable.

 

What is a non-pecuniary conflict of interests?

 

4.10  Non-pecuniary interests are private or personal interests the council official has that do not amount to a pecuniary interest as defined in the Act. These commonly arise out of family, or personal relationships, or involvement in sporting, social or other cultural groups and associations and may include an interest of a financial nature.

 

4.11  The political views of a councillor do not constitute a private interest.

 

Managing non-pecuniary conflict of interests

 

4.12  Where you have a non-pecuniary interest that conflicts with your public duty, you must disclose the interest fully and in writing, even if the conflict is not significant. You must do this as soon as practicable.

 

4.13  If a disclosure is made at a council or committee meeting, both the disclosure and the nature of the interest must be recorded in the minutes. This disclosure constitutes disclosure in writing for the purposes of clause 4.12.

 

4.14  How you manage a non-pecuniary conflict of interests will depend on whether or not it is significant.

 

4.15  As a general rule, a non-pecuniary conflict of interests will be significant where a matter does not raise a pecuniary interest but it involves:

 

a)      a relationship between a council official and another person that is particularly close, for example, parent, grandparent, brother, sister, uncle, aunt, nephew, niece, lineal descendant or adopted child of the person or of the person’s spouse, current or former spouse or partner, de facto or other person living in the same household;

 

b)      other relationships that are particularly close, such as friendships and business relationships. Closeness is defined by the nature of the friendship or business relationship, the frequency of contact and the duration of the friendship or relationship;

 

c)      an affiliation between the council official and an organisation, sporting body, club, corporation or association that is particularly strong.

 

4.16  If you are a council official, other than a member of staff of council, and you have disclosed that a significant non-pecuniary conflict of interests exists, you must manage it in one of two ways:

 

a)      remove the source of the conflict, by relinquishing or divesting the interest that creates the conflict, or reallocating the conflicting duties to another council official;

 

b)      have no involvement in the matter, by absenting yourself from and not taking part in any debate or voting on the issue as if the provisions in section 451(2) of the Act apply.

 

4.17  If you determine that a non-pecuniary conflict of interests is less than significant and does not require further action, you must provide an explanation of why you consider that the conflict does not require further action in the circumstances.

 

4.18  If you are a member of staff of council, the decision on which option should be taken to manage a non-pecuniary conflict of interests must be made in consultation with your manager.

 

4.19  Despite clause 4.16(b), a councillor who has disclosed that a significant non-pecuniary conflict of interests exists may participate in a decision to delegate council’s decision-making role to council staff through the General Manager, or appoint another person or body to make the decision in accordance with the law. This applies whether or not council would be deprived of a quorum if one or more councillors were to manage their conflict of interests by not voting on a matter in accordance with clause 4.16(b) above.

 

Reportable Political Donations

 

4.20  Councillors should note that matters before council involving political or campaign donors may give rise to a non-pecuniary conflict of interests.

 

4.21  Where a councillor has received or knowingly benefited from a reportable political donation:

 

a)   made by a major political donor in the previous four years; and

b)   where the major political donor has a matter before Council,

 

then the councillor must declare a non-pecuniary conflict of interests, disclose the nature of the interest, and manage the conflict of interests in accordance with clause 4.16(b).

 

4.22  For the purposes of this Part:

 

a)      a “reportable political donation” is a “reportable political donation” for the purposes of section 86 of the Election Funding, Expenditure and Disclosures Act 1981;

 

b)      a “major political donor” is a “major political donor” for the purpose of section 84 of the Election Funding, Expenditure and Disclosures Act 1981.

 

4.23  Councillors should note that political donations below $1,000, or political donations to a registered political party or group by which a councillor is endorsed, may still give rise to a non-pecuniary conflict of interests. Councillors should determine whether or not such conflicts are significant and take appropriate action to manage them.

 

4.24  If a councillor has received or knowingly benefited from a reportable political donation of the kind referred to in clause 4.21, that councillor is not prevented from participating in a decision to delegate council’s decision-making role to council staff through the General Manager or appointing another person or body to make the decision in accordance with the law (see clause 4.19 above).

 

Loss of Quorum as a Result of Compliance with this Part

 

4.25  Where a majority of Councillors are precluded under this Part from consideration of a matter the council or committee must resolve to delegate consideration of the matter in question to another person.

 

4.26  Where a majority of councillors are precluded under this Part from consideration of a matter and the matter in question concerns the exercise of a function that may not be delegated under section 377 of the Act, the councillors may apply in writing to the Chief Executive to be exempted from comply with a requirement under this Part relating to the management of a non-pecuniary conflict of interests.

 

4.27  The Chief Executive will only exempt a councillor from complying with a requirement under this Part where:

 

a)      compliance by councillors with a requirement under this Part in relation to a matter will result in the loss of a quorum; and

 

b)      the matter relates to the exercise of a function of the council that may not be delegated under section 377 of the Act.

 

4.28  Where the Chief Executive exempts a councillor from complying with a requirement under this Part, the councillor must still disclose any interest they have in the matter the exemption applies to in accordance with the requirements of this Part.

 

4.29  A councillor, who would otherwise be precluded from participating in the consideration of a matter under this Part because they have a non-pecuniary conflict of interests in the matter, is permitted to participate in consideration of the matter, if:

 

a)      the matter is a proposal relating to:

 

i)         the making of a principal environmental planning instrument applying to the whole or a significant part of the council’s area, or

 

ii)        the amendment, alteration or repeal of an environmental planning instrument where the amendment, alteration or repeal applies to the whole or a significant part of the Council’s areas; and

 

b)      the councillor declares any interest they have in the matter that would otherwise have precluded their participation in consideration of the matter under this Part.

 

Other business or employment

 

4.30  If you are a member of staff of council considering outside employment or contract work that relates to the business of the council or that might conflict with your council duties, you must notify and seek the approval of the general manager in writing. (section 353)

 

4.31  As a member of staff, you must ensure that any outside employment or business you engage in will not:

 

a)      conflict with your official duties;

b)      involve using confidential information or council resources obtained through your work with the council;

c)      require you to work while on council duty;

d)      discredit or disadvantage the council.

 

Personal dealings with council

 

4.32  You may have reason to deal with your council in your personal capacity (for example, as a ratepayer, recipient of a council service or applicant for a consent granted by council). You must not expect or request preferential treatment in relation to any matter in which you have a private interest because of your position. You must avoid any action that could lead members of the public to believe that you are seeking preferential treatment.


 

PART 5: PERSONAL BENEFIT

 

For the purposes of this section, a reference to a gift or benefit does not include a political donation or contribution to an election fund that is subject to the provisions of the relevant election funding legislation.

 

Gifts and Benefits

 

5.1    You must avoid situations giving rise to the appearance that a person or body, through the provision of gifts, benefits or hospitality of any kind, is attempting to secure favourable treatment from you or from the Council.

 

5.2    You must take all reasonable steps to ensure that your immediate family members do not receive gifts or benefits that give rise to the appearance of being an attempt to secure favourable treatment. Immediate family members ordinarily include parents, spouses, children and siblings.

 

Token Gifts and Benefits

 

5.3    Generally speaking, token gifts and benefits include:

 

a)      free or subsidised meals, beverages or refreshments provided in conjunction with:

 

i)       the discussion of official business;

ii)      council work related events such as training, education sessions, workshops;

iii)      conferences;

iv)     council functions or events;

v)      social functions organised by groups, such as council committees and community organisations;

 

b)   invitations to and attendance at local social, cultural or sporting events;

 

c)   gifts of single bottles of reasonably priced alcohol to individual council officials at end of year functions, public occasions or in recognition of work done (such as providing a lecture/training session/address);

 

d)   ties, scarves, coasters, tie pins, diaries, chocolates or flowers;

 

e)   prizes of token value.

 

Gifts and benefits of value

 

5.4    Notwithstanding clause 5.3, gifts and benefits that have more than a token value include, but are not limited to, tickets to major sporting events (such as state or international cricket matches or matches in other national sporting codes (including the NRL, AFL, FFA, NBL)), corporate hospitality at a corporate facility at major sporting events, discounted products for personal use, the frequent use of facilities such as gyms, use of holiday homes, free or discounted travel.

 

 


How are Offers of Gifts and Benefits to be Dealt With?  

 

5.5    You must not:

 

a)      seek or accept a bribe or other improper inducement;

b)      seek gifts or benefits of any kind;

c)      accept any gift or benefit that may create a sense of obligation on your part or may be perceived to be intended or likely to influence you in carrying out your public duty;

d)      accept any gift or benefit of more than token value;

e)      accept an offer of cash or a cash-like gift, regardless of the amount.

 

5.6    For the purposes of clause 5.5(e), a “cash like gift” includes but is not limited to gift vouchers, credit cards, debit cards with credit on them, prepayments such as phone or internet credit, memberships or entitlements to discounts.

 

5.7    Where you receive a gift or benefit of more than token value that cannot reasonably be refused or returned, this must be disclosed promptly to your supervisor, the Mayor or the General Manager. The recipient, supervisor, Mayor or General Manager must ensure that any gifts or benefits of more than token value that are received are recorded in a Gifts Register. The gift or benefit must be surrendered to Council, unless the nature of the gift or benefit makes this impractical.

 

Improper and undue influence

 

5.8    You must not use your position to influence other Council officials in the performance of their public or professional duties to obtain a private benefit for yourself or for somebody else. A councillor will not be in breach of this clause where they seek to influence other council officials through the appropriate exercise of their representative functions.

 

5.9    You must not take advantage (or seek to take advantage) of your status or position with or of functions you perform for council in order to obtain a private benefit for yourself or for any other person or body.

 

 

 


PART 6: RELATIONSHIP BETWEEN COUNCIL OFFICALS

 

Obligations of Councillors and administrators

 

6.1    Each council is a body politic. The councillors or administrator/s are the governing body of the council. The governing body has the responsibility of directing and controlling the affairs of the Council in accordance with the Act and is responsible for policy determinations, for example, those relating to workforce policy.

 

6.2    Councillors or administrators must not:

 

a)      direct council staff other than by giving appropriate direction to the General Manager in the performance of council’s functions by way of council or committee resolution, or by the Mayor or administrator exercising their power under section 226 of the Act (section 352);

 

b)      in any public or private forum, direct or influence or attempt to direct or influence, any other member of the staff of the council or a delegate of the council in the exercise of the functions of the member or delegate (Schedule 6A of the Act);

 

c)      contact a member of the staff of the council on council related business unless in accordance with the policy and procedures governing the interaction of Councillors and council staff that have been authorised by the Council and the General Manager;

 

d)      contact or issue instructions to any of council’s contractors or tenderers, including council’s legal advisers, unless by the Mayor or administrator exercising their power under section 226 of the Act. This does not apply to council’s external auditors or t4he Chair of Council’s Audit Committee who may be provided with any information by individual councillors reasonably necessary for the external auditor or audit committee to effectively perform their functions.

 

Obligations of Staff

 

6.3    The General Manager is responsible for the efficient and effective operation of the Council’s organisation and for ensuring the implementation of the decisions of the council without delay.

 

6.4    Members of staff of Council must:

 

a)      give their attention to the business of council while on duty;

 

b)      ensure that their work is carried out efficiently, economically and effectively;

 

c)      carry out lawful directions given by any person having authority to give such directions;

 

d)      give effect to the lawful decisions, policies, and procedures of the Council, whether or not the staff member agrees with or approves of them;

 

e)      ensure that any participation in political activities outside the service of Council does not conflict with the performance of their official duties.

 


Obligations During Meetings

 

6.5    You must act in accordance with Council’s Code of Meeting Practice, if Council has adopted one, and the Local Government (General) Regulation 2005 during Council and committee meetings.

 

6.6    You must show respect to the chair, other council officials and any members of the public present during Council and committee meetings or other formal proceedings of the Council.

 

Inappropriate Interactions

 

6.7    You must not engage in any of the following inappropriate interactions:

 

a)      Councillors and administrators approaching staff and staff organisations to discuss individual or operational staff matters other than broader workforce policy issues.

 

b)      Council staff approaching Councillors and administrators to discuss individual or operational staff matters other than broader workforce policy issues.

 

c)      Council staff refusing to give information that is available to other Councillors to a particular Councillor.

 

d)      Councillors and administrators who have lodged a development application with council, discussing the matter with Council staff in staff-only areas of the Council.

 

e)      Councillors and administrators being overbearing or threatening to Council staff.

 

f)      Councillors and administrators making personal attacks on Council staff in a public forum.

 

g)      Councillors and administrators directing or pressuring council staff in the performance of their work, or recommendations they should make.

 

h)      Council staff providing ad hoc advice to Councillors and administrators without recording or documenting the interaction as they would if the advice was provided to a member of the community.

 

i)       Council staff meeting with developers alone AND outside office hours to discuss development applications or proposals.

 

j)       Councillors attending on-site inspection meetings with lawyers and/or consultants engaged by Council associated with current or proposed legal proceedings unless permitted to do so by Council’s General Manager or, in the case of the Mayor or administrator, exercising their power under section 226 of the Act.

 

 

 

 


PART 7: ACCESS TO INFORMATION AND COUNCIL RESOURCES

 

Councillor and Administrator Access to Information

 

7.1    The General Manager and Public Officer are responsible for ensuring that members of the public, Councillors and administrators can gain access to the documents available under Government Information (Public Access) Act 2009.

 

7.2    The General Manager must provide Councillors and administrators with information sufficient to enable them to carry out their civic office functions.

 

7.3    Members of staff of council must provide full and timely information to Councillors and administrators sufficient to enable them to carry out their civic office functions and in accordance with Council procedures.

 

7.4    Members of staff of council who provide any information to a particular Councillor in the performance of their civic duties must also make it available to any other Councillor who requests it and in accordance with Council procedures.

 

7.5    Councillors and administrators who have a private (as distinct from civic) interest in a document of Council have the same rights of access as any member of the public.

 

Councillors and Administrators to Properly Examine and Consider Information

 

7.6    Councillors and administrators must properly examine and consider all the information provided to them relating to matters that they are dealing with to enable them to make a decision on the matter in accordance with Council’s charter.

 

Refusal of Access to Documents

 

7.7    Where the General Manager and Public Officer determine to refuse access to a document sought by a Councillor or administrator they must act reasonably. In reaching this decision they must take into account whether or not the document sought is required for the Councillor or administrator to perform their civic duty (see clause 7.2). The General Manager or Public Officer must state the reasons for the decision if access is refused.

 

Use of Certain Council Information

 

7.8    In regard to information obtained in your capacity as a Council official, you must:

 

a)      only access Council information needed for Council business;

 

b)      not use that Council information for private purposes;

 

c)      not seek or obtain, either directly or indirectly, any financial benefit or other improper advantage for yourself, or any other person or body, from any information to which you have by virtue of your office or position with Council;

 

d)      only release Council information in accordance with established Council policies and procedures and in compliance with relevant legislation.

 

 

 

 

 

Use and Security of Confidential Information

 

7.9    You must maintain the integrity and security of confidential documents or information in your possession, or for which you are responsible.

 

7.10  In addition to your general obligations relating to the use of Council information, you must:

 

a)      protect confidential information;

 

b)      only release confidential information if you have authority to do so;

 

c)      only use confidential information for the purpose it is intended to be used;

 

d)      not use confidential information gained through your official position for the purpose of securing a private benefit for yourself or for any other person;

 

e)      not use confidential information with the intention to cause harm or detriment to your Council or any other person or body;

 

f)       not disclose any information discussed during a confidential session of a council meeting.

 

Personal Information

 

7.11  When dealing with personal information you must comply with:

 

a)      the Privacy and Personal Information Protection Act 1998;

b)      the Health Records and Information Privacy Act 2002;

c)      the Information Protection Principles and Health Privacy Principles;

d)      Council’s privacy management plan,

e)      the Privacy Code of Practice for Local Government.

 

Use of Council Resources

 

7.12  You must use Council resources ethically, effectively, efficiently and carefully in the course of your official duties, and must not use them for private purposes (except when supplied as part of a contract of employment) unless this use is lawfully authorised and proper payment is made where appropriate.

 

7.13  Union delegates and consultative committee members may have reasonable access to Council resources for the purposes of carrying out their industrial responsibilities, including but not limited to:

 

a)      the representation of members with respect to disciplinary matters;

b)      the representation of employees with respect to grievances and disputes;

c)      functions associated with the role of the local consultative committee.

 

7.14  You must be scrupulous in your use of Council property, including intellectual property, official services and facilities, and must not permit their misuse by any other person or body.

 

7.15  You must avoid any action or situation that could create the appearance that Council property, official services or public facilities are being improperly used for your benefit or the benefit of any other person or body.

 

7.16  You must not use Council resources, property or facilities for the purpose of assisting your election campaign or the election campaign of others unless the resources, property or facilities are otherwise available for use or hire by the public and any publicly advertised fee is paid for use of the resources, property or facility.

 

7.17  You must not use council letterhead, council crests and other information that could give the appearance it is official Council material for:

 

c)     the purpose of assisting your election campaign or the election campaign of others; or

d)     for other non-official purposes.

 

7.18  You must not convert any property of the Council to your own use unless properly authorised.

 

7.19  You must not use Council’s computer resources to search for, access, download or communicate any material of an offensive, obscene, pornographic, threatening, abusive or defamatory nature.

 

Councillor Access to Council Buildings

 

7.20  Councillors and administrators are entitled to have access to the Council chamber, committee room, Mayor’s Office (subject to availability), Councillors’ rooms, and public areas of Council’s buildings during normal business hours and for meetings. Councillors and administrators needing access to these facilities at other times must obtain authority from the General Manager.

 

7.21  Councillors and administrators must not enter staff-only areas of Council buildings without the approval of the General Manager (or delegate) or as provided in the procedures governing the interaction of Councillors and Council staff.

 

7.22  Councillors and administrators must ensure that when they are within a staff area they avoid giving rise to the appearance that they may improperly influence Council staff decisions.

 

 

 

 

 


PART 8: MAINTAINING THE INTEGRITY OF THIS CODE

 

8.1    You must not conduct yourself in a manner that is likely to undermine confidence in the integrity of this Code or its administration.

 

Complaints Made for an Improper Purpose

 

8.2    You must not make a complaint or cause a complaint to be made under this Code for an improper purpose.

 

8.3    For the purposes of clause 8.2, a complaint is made for an improper purpose where it is trivial, vexatious or not made in good faith, or where it otherwise lacks merit and has been made substantially for one or more of the following purposes:

 

a)      to intimidate or harass another Council official;

b)      to damage another Council official’s reputation;

c)      to obtain a political advantage;

d)      to influence a Council official in the exercise of their official functions or to prevent or disrupt the exercise of those functions;

e)      to influence the Council in the exercise of its functions or to prevent or disrupt the exercise of those functions;

f)       to avoid disciplinary action under this Code;

g)      to take reprisal action against a person for making a complaint under this Code except as may be otherwise specifically permitted under this Code;

h)      to take reprisal action against a person for exercising a function prescribed under the procedures for administration of this Code except as may be specifically permitted under this Code;

i)       to prevent or disrupt the effective administration of this Code.

 

Detrimental Action

 

8.4    You must not take detrimental action or cause detrimental action to be taken against a person substantially in reprisal for a complaint they have made under this Code except as may be otherwise specifically permitted under this Code.

 

8.5    You must not take detrimental action or cause detrimental action to be taken against a person substantially in reprisal for any function they have exercised under this Code except as may be otherwise specifically permitted under this Code.

 

8.6    For the purposes of clauses 8.4 and 8.5 detrimental action is an action causing, comprising or involving any of the following:

 

a)            injury, damage or loss;

b)            intimidation or harassment;

c)            discrimination, disadvantage or adverse treatment in relation to employment;

d)            dismissal from, or prejudice in, employment;

e)            disciplinary proceedings.

 

Compliance with Requirements under this Code

 

8.7    You must not engage in conduct that is calculated to impede or disrupt the consideration of a matter under this Code.

 

8.8    You must comply with a reasonable and lawful request made by a person exercising a function under this Code.

 

8.9    You must comply with a practice ruling made by the Division of Local Government.

 

8.10  Where you are a Councillor or the General Manager, you must comply with any Council resolution requiring you to take action as a result of a breach of this Code.

 

Disclosure of Information about the Consideration of a Matter under this Code

 

8.11  You must report breaches of this Code in accordance with the reporting requirements under this Code.

 

8.12  You must not make allegations of suspected breaches of this Code at Council meetings or in other public forums.

 

8.13  You must not disclosure information about the consideration of a matter under this Code except for the purposes of seeking legal advice unless the disclosure is otherwise permitted by this Code.

 

Complaints Alleging Breaches of this Part

 

8.14  Complaints alleging a breach of this Part (Part 8) by a Councillor, the General Manager or an administration are to be made to the Division of Local Government.

 

8.15  Complaints alleging a breach of this Part by other Council officials are to be made to the General Manager.

 

 


PART 9: DEFINITIONS

 

 

In the Model Code of Conduct the following definitions apply:

 

the Act                          the Local Government Act 1993

 

act of disorder               see the definition in clause 256 of the Local Government (General) Regulation 2005

 

administrator               an administrator of Council appointed under the Act other than an administrator appointed under section 66

 

Chief Executive          Chief Executive of the Division of Local Government, Department of Premier and Cabinet

 

committee           a council committee

 

conflict of interests       a conflict of interests exists where a reasonable and informed person would perceive that you could be influenced by a private interest when carrying out your public duty.

 

Council committee       a committee established by resolution of council

 

Council committee

member                      a person other than a Councillor member of staff of a Council who is a member of a Council committee

 

council official               includes Councillors, members of staff of council, administrators, council committee members, conduct reviewers and delegates of council

 

delegate of council       a person (other than a Councillor or member of staff of a Council) or body, and the individual members of that body, to whom a function of Council is delegated

 

designated person        see the definition in section 441 of the Act

 

election campaign        includes council, State and Federal election campaigns

 

personal information               information or an opinion about a person whose identity is apparent, or can be ascertained from the information or opinion

 

the Regulation               the Local Government (General) Regulation 2005.

 

The term “you” used in the Model Code of Conduct refers to Council officials.

 

The phrase “this Code” used in the Model Code of Conduct refers also to the procedures for the administration of the Model Code of Conduct prescribed under the Local Government (General) Regulation 2005.


BYRON SHIRE COUNCIL

Staff Reports - Sustainable Environment and Economy             5.1 - Attachment 5

 

Byron Shire Council

 

 

 

 

 

 

 

 

 

 

 

Privacy & Personal Information Protection Act 1998

 

PRIVACY MANAGEMENT PLAN

 

 

 

 

 

 

 

 

 

 

Adopted Resolution 13-103 date 28 February 2013
Commended 27 May 2013

 

 


BYRON SHIRE COUNCIL

Staff Reports - Sustainable Environment and Economy                 5.1 - Attachment 5

INFORMATION ABOUT THIS DOCUMENT

 

Date Adopted by Council

20/3/01

Resolution No.

01-283

Policy Responsibility

Corporate Management

Review Timeframe

 

Last Review Date:

January 2013

Next Scheduled Review Date

 

 

Document History

Doc No.

Date Amended

Details Comments eg Resolution No.

#DM214081

 

Res No. 01-283

#E2013/4623

25 January 2013

Revised Model as per DLG’s Circular No. 13-03

E2013/4623

23 April 2013

Advertised on exhibition #E2013/22601

E2013/32774

27 May 2013

Res 13-103 adopted after close of exhibition

 

Further Document Information and Relationships

Related Legislation*

Privacy and Personal Information Protection Act 1998 (the “PPIPA”)
Health Records and Information Privacy Act 2002 (the HRIPA)
Local Government Act 1993 (the “LGA”)
Government Information (Public Access) Act 2009 (GIPA Act)
Environmental Planning and Assessment Act
Protection of the Environment (Operations) Act:
State Records Act 1998
Oaths Act, 1900

Related Policies

Byron Shire Council Code of Conduct

Related Procedures/ Protocols, Statements, documents

 

Note: Any reference to Legislation will be updated in the Policy as required. See website http://www.legislation.nsw.gov.au/ for current Acts, Regulations and Environmental Planning Instruments.


BYRON SHIRE COUNCIL

Staff Reports - Sustainable Environment and Economy                 5.1 - Attachment 5

TABLE OF CONTENTS

 

Preface.. 1

Part 1 – Introduction.. 2

1.1      What is “personal information”?.. 3

1.2      What is not “personal information”. 3

1.3      Policy on Electoral Rolls. 4

1.4      Application of this Plan.. 4

1.5      Personal Information held by Council 4

1.6      Applications for suppression in relation to general information (not public registers). 5

1.7      Caution as to unsolicited information.. 5

Part 2 – Public Registers.. 6

2.1      Public registers, the PPIPA and the HRIPA.. 6

2.2      Effect on section 6 of the GIPA Act 7

2.3      Where some information in the public register has been published.. 7

2.4      Disclosure of personal information contained in the public registers. 8

2.5      Purposes of public registers. 8

2.6      Applications for access to own records on a public register. 9

2.7      Applications for suppression in relation to a public register. 9

2.8      Other registers. 10

Part 3 – The Information Protection Principles.. 11

Part 4 – Health Privacy Principles.. 31

Part 5 – Implementation of the Privacy Management Plan.. 44

5.1      Training Seminars/Induction.. 44

5.2      Responsibilities of the Privacy Contact Officer. 44

5.3      Distribution of information to the public.. 45

Part 6 – Internal Review... 46

6.1      How does the process of Internal Review operate?.. 46

6.2      What happens after an Internal Review?.. 46

Part 7 – Other Relevant Matters.. 47

7.1      Contracts with consultants and other private contractors. 47

7.2      Confidentiality.. 47

7.3      Misuse of personal or health information.. 47

7.4      Regular review of the collection, storage and use of personal or health information.. 47

7.5      Regular review of Privacy Management Plan.. 47

7.6      Further information.. 47

Part 8 – Appendices.. 48

Appendix 1: Statutory Declaration for access under Section 57 of the Privacy and Personal
Information Protection Act 1998 to a Public Register held by Council
49

Appendix 2: Privacy Notification Form - Section 10 (Pre – Collection). 50

Appendix 3: Privacy Notification Form - Section 10 (Post – Collection). 51

Appendix 4: Application under Section 13 of the Privacy and Personal Information
Protection Act 1998: To determine whether Council holds personal information about a person.
52

Appendix 5: Application under section 14 of the Privacy And Personal Information
Protection Act 1998: For access to Applicant’s Personal Information
.. 53

Appendix 6: Application under section 15 of the Privacy and Personal Information
Protection Act 1998: For alteration of Applicant’s Personal Information
.. 54


BYRON SHIRE COUNCIL

Staff Reports - Sustainable Environment and Economy                        5.1 - Attachment 5

PRIVACY MANAGEMENT PLAN

 

 

Preface

 

The Privacy and Personal Information Protection Act 1998 (the “PPIPA”) requires all councils to prepare a Privacy Management Plan outlining their policies and practices to ensure compliance with the requirements of that Act and the Health Records and Information Privacy Act 2002 (the HRIPA).

 

In particular, the object of this plan is to inform:

 

·    The community about how their personal information will be used, stored and accessed after it is collected by the Council; and

·    Council staff of their obligations in relation to handling personal information and when they can and cannot disclose, use or collect it.

 


Part 1 – Introduction

 

The Privacy and Personal Information Protection Act 1998 (“PPIPA”) provides for the protection of personal information and for the protection of the privacy of individuals.

 

Section 33 of the PPIPA requires all councils to prepare a Privacy Management Plan (the “Plan”) to deal with:

 

·       the devising of policies and practices to ensure compliance by the Council with the requirements of the PPIPA and the Health Records and Information Privacy Act 2002 (“HRIPA”);

·       the dissemination of those policies and practices to persons within the Council;

·       the procedures that the Council proposes for internal review of privacy complaints;

·       such other matters as are considered relevant by the Council in relation to privacy and the protection of personal information held by it.

 

This Plan has been prepared for the purpose of section 33 of the PPIPA.

 

PPIPA provides for the protection of personal information by means of 12 Information Protection Principles. Those principles are listed below:

 

Principle 1 - Collection of personal information for lawful purposes

Principle 2 - Collection of personal information directly from individual

Principle 3 - Requirements when collecting personal information

Principle 4 - Other requirements relating to collection of personal information

Principle 5 - Retention and security of personal information

Principle 6 - Information about personal information held by agencies

Principle 7 - Access to personal information held by agencies

Principle 8 - Alteration of personal information

Principle 9 - Agency must check accuracy of personal information before use

Principle 10 - Limits on use of personal information

Principle 11 - Limits on disclosure of personal information

Principle 12 - Special restrictions on disclosure of personal information

 

Those principles are modified by the Privacy Code of Practice for Local Government (“the Code”) made by the Attorney General. To date there has been no Health Records and Information Privacy Code of Practice made for Local Government.

 

The Privacy Code has been developed to enable Local Government to fulfil its statutory duties and functions under the Local Government Act 1993 (the “LGA”) in a manner that seeks to comply with the PPIPA.

 

This Plan outlines how the Council will incorporate the 12 Information Protection Principles into its everyday functions.

 

This Plan should be read in conjunction with the Code of Practice for Local Government.

 

Nothing in this Plan is to:

·       affect any matter of interpretation of the Codes or the Information Protection Principles and the Health Privacy Principles as they apply to the Council;

·       affect any obligation at law cast upon the Council by way of representation or holding out in any manner whatsoever;

·       create, extend or lessen any obligation at law which the Council may have.

 

This Plan is designed to introduce policies and procedures to maximise compliance with the PPIPA and the HRIPA.

 

Where the Council has the benefit of an exemption, it will nevertheless describe procedures for compliance in this Plan. By doing so, it is not to be bound in a manner other than that prescribed by the Codes.

 

Council collects, stores and uses a broad range of information. A significant part of that information is personal information. This Plan applies to that part of the Council’s information that is personal information.

 

It may mean in practice that any information that is not personal information will receive treatment of a higher standard; namely treatment accorded to personal information where the information cannot be meaningfully or practicably separated.

 

1.1    What is “personal information”?

 

“Personal information” is defined in section 4 of the PPIPA as follows:

 

Personal information is defined to mean information or an opinion about an individual whose identity is apparent or can reasonably be ascertained from the information or opinion. This information can be on a database and does not necessarily have to be recorded in a material form.

 

1.2    What is not “personal information”

 

“Personal information” does not include “information about an individual that is contained in a publicly available publication”. Personal information, once it is contained in a publicly available publication, ceases to be covered by the PPIPA.

 

Section 4A of the PPIPA also specifically excludes “health information”, as defined by section 6 of the HRIPA, from the definition of “personal information”, but includes “health information” in the PPIPA’s consideration of public registers (discussed below). “Health information” is considered in Part 4 of this Plan.

 

Where the Council is requested to provide access or make a disclosure and that information has already been published, then the Council will rely on the provisions of the relevant Act that authorises Council to hold that information and not the PPIPA (for example, section 8 of the Government Information (Public Access) Act 2009 (GIPA Act).

 

Council considers the following to be publicly available publications:

·       An advertisement containing personal information in a local, city or national newspaper;

·       Personal information on the Internet;

·       Books or magazines that are printed and distributed broadly to the general public;

·       Council Business papers or that part that is available to the general public;

·       Personal information that may be a part of a public display on view to the general public.

 

Information published in this way ceases to be covered by the PPIPA. 

 

Council’s decision to publish in this way must be in accordance with PPIPA.

 

 

 

1.3    Policy on Electoral Rolls

 

The Electoral Roll is a publicly available publication.  Council will provide open access to the Electoral Roll in Council’s library. Council will refer any requests for copies of the Electoral Roll to the State Electoral Commissioner.

 

1.4    Application of this Plan

 

The PPIPA, the HRIPA and this Plan apply, wherever practicable, to:

·       Councillors;

·       Council employees;

·       Consultants and contractors of the Council;

·       Council owned businesses; and

·       Council committees (including community members of those committees which may be established under section 355 of the LGA).

 

Council will ensure that all such parties are made aware that they must comply with the PPIPA, the HRIPA, any other applicable Privacy Code of Practice and this Plan.

 

1.5    Personal Information held by Council

 

The Council holds personal information concerning Councillors, such as:

·       personal contact information;

·       complaints and disciplinary matters;

·       pecuniary interest returns; and

·       entitlements to fees, expenses and facilities.

 

The Council holds personal information concerning its customers, ratepayers and residents, such as:

·       rates records; and

·       DA applications and objections; and

·       various types of health information (see page 37 for detailed examples).

 

The Council holds personal information concerning its employees, such as:

·       recruitment material;

·       leave and payroll data;

·       personal contact information;

·       performance management plans;

·       disciplinary matters;

·       pecuniary interest returns;

·       wage and salary entitlements; and

·       health information (such medical certificates and workers compensation claims).

 

1.6       Applications for suppression in relation to general information (not public registers).

 

Under section 739 of the Local Government Act 1993 (“LGA”) a person can make an application to suppress certain material that is available for public inspection in circumstances where the material discloses or would disclose the person’s place of living if the person considers that the disclosure would place the personal safety of the person or their family at risk.

 

Section 739 of the LGA relates to publicly available material other than public registers. As such, it limits disclosure in those circumstances where an application for suppression is successful. An application for suppression must be verified by statutory declaration and otherwise meet the requirements of section 739.  When in doubt, Council will err in favour of suppression.

 

For more information regarding disclosure of information (other than public registers) see the discussion of IPPs 11 and 12 in Part 3 of this Plan.  For information regarding suppression of information on public registers, see Part 2 of this Plan.

 

1.7    Caution as to unsolicited information

 

Where an individual, a group or committee, not established by Council, gives Council unsolicited personal or health information, then that information should be still treated in accordance with this Plan, the Codes, the HRIPA and the PPIPA for the purposes of IPPs 5-12 and HPPs 5-15 which relate to storage, access, use and disclosure of information.

 

Note that for the purposes of section 10 of the HRIPA, the Council is not considered to have “collected” health information if the receipt of the information by the Council is unsolicited.

 

Section 4(5) of the PPIPA also provides that personal information is not “collected” by Council if it is unsolicited.

 


Part 2 – Public Registers

 

A public register is defined in section 3 of the PPIPA:

 

“…public register means a register of personal information that is required by law to be, or is made, publicly available or open to public inspection (whether or not on payment of a fee).”

 

A distinction needs to be drawn between “public registers” within the meaning of Part 6 of the PPIPA and “non public registers”. A “non public register” is a register but it is not a “public register” for the purposes of the PPIPA. For example, the register might not be publicly available or it may not contain personal information.

 

Disclosure in relation to public registers must comply with Part 6 of the PPIPA and the Privacy Code. Personal information cannot be accessed by a person about another person unless the personal information is contained in a public register. Where personal information is contained in a public register, then Part 6 of the PPIPA applies to determine whether access to that information will be given to another person.

 

Disclosure in relation to all other personal information must comply with the Information Protection Principles as outlined in Part 2 of this Plan and the Privacy Code where it includes personal information that is not published. 

 

The Council holds the following public registers under the LGA: ***

·       Section 53 - Land Register

·       Section 113 - Records of Approvals;

·       Section 449 -450A - Register of Pecuniary Interests;

·       Section 602 - Rates Record.

 

***Note – this is purely indicative. Council may, by virtue of its own practice, hold other Public Registers, to which the PPIPA applies.

 

Council holds the following public registers under the Environmental Planning and Assessment Act:

·       Section 100 – Register of consents and approvals

·       Section 149G – Record of building certificates

 

Council holds the following public register under the Protection of the Environment (Operations) Act:

 

·       Section 308 – Public register of licences held

 

Council holds the following public register under the Impounding Act 1993:

 

·       Section 30 & 31 – Record of impounding

 

Members of the public may enquire only in accordance with the primary purpose of any of these registers. The primary purpose for each of these public registers is set out in the sections that follow.

 

2.1    Public registers, the PPIPA and the HRIPA

 

A public register generally confers specific rights or privileges, a benefit, or status, which would not otherwise exist. It may be required by law to be made publicly available or open to public inspection, or it is simply made publicly available or open to public inspection (whether or not payment is required).

 

Despite the exclusion of “health information” from the definition of “personal information” under section 4A of the PPIPA, section 56A of the PPIPA includes as “personal information”, “health information” on public registers. 

 

Section 57 of the PPIPA requires very stringent controls over the disclosure of personal information contained in a public register. It provides broadly that where Council is responsible for keeping a public register, it will not disclose any personal information kept in that register unless it is satisfied that the information is to be used for a purpose relating to the purpose of the register or the Act under which the register is kept. 

 

Section 57 (2) provides that in order to ensure compliance with section 57(1), a Council may require any person who applies to inspect personal information contained in the public register to give particulars in the form of a statutory declaration as to the proposed use of that information. (Form at Appendix 1 may be used a guide)

 

Councils also need to consider the Privacy Code of Practice for Local Government which has the effect of modifying the application of Part 6 of the PPIPA (the “public register” provisions).

 

If the stated purpose of the applicant does not conform with the purpose for which the public register is kept, access to the information sought will not be given.

 

Where personal information is contained in a publicly available publication, that information will not be regarded as personal information covered by the PPIPA or as health information for the purposes of part 6 of the PPIPA.

 

2.2    Effect on section 6 of the GIPA Act

 

Section 57 of the PPIPA prevails over clause 1(3) of Schedule 1 of the Government Information (Public Access) Regulation 2009 (GIPA Regulation) to the extent of any inconsistency. Therefore:

1.    If a register is listed in Schedule 1 of the GIPA Regulation, access must not be given except in accordance with section 57(1) of the PPIPA.

2.    If a register is not listed in Schedule 1 of the GIPA Regulation, access must not be given except:

 

(i)         if it is allowed under section 57(1) of the PPIPA; and

(ii)        there is no overriding public interest against disclosure of the information under section 6 of the GIPA Act.

 

Note: Both 1 and 2 are amended with regard to specific public registers in the Privacy Code of Practice for Local Government.

 

2.3    Where some information in the public register has been published

 

That part of a public register that is not published in a publicly available publication will be treated as a “public register” and the following procedure for disclosure will apply.

 

For example, the Register of Consents and Approvals held by Council under section 100 of the Environmental Planning and Assessment Act requires Council to advertise or publish applications for development consent.

 

When Council publishes the address of the property, it may identify the owner. The personal information that has not been published and any applications not advertised or that have been rejected or withdrawn (and hence also not published) will be treated as a public register under PPIPA.

 

Council may hold a register under the Contaminated Land Management Act on behalf of the Environment Protection Authority. This is not to be considered a public register of the Council as the statute does not place any obligations on the Council to make this register publicly available as a register of contaminated land. Furthermore, the legislation foreshadows that the Environment Protection Authority may indeed post this list or register on the internet. This may constitute a publication of the information and therefore the PPIPA will not apply.

 

Registers should not be published on the internet.

 

2.4    Disclosure of personal information contained in the public registers

 

A person seeking a disclosure concerning someone else’s personal information from a public register must satisfy Council that the intended use of the information is for a purpose relating to the purpose of the register or the Act under which the register is kept.

 

In the following section, by way of guidance only, what might be called the “primary” purpose (or “the purpose of the register”) has been specified for each identified register. In some cases a “secondary purpose” has also been specified, by way of guidance as to what might constitute “a purpose relating to the purpose of the register”.

 

2.5    Purposes of public registers

 

Purposes of public registers under the Local Government Act

 

Section 53 - Land Register – The primary purpose is to identify all land vested in Council, or under its control. The secondary purpose includes a consideration of public accountability as to the land held by Council. Third party access is therefore a secondary purpose.

 

Section 113 - Records of Approvals – The primary purpose is to identify all approvals granted under the LGA.

 

Section 450A - Register of Pecuniary Interests – The primary purpose of this register is to determine whether or not a Councillor or a member of a council committee has a pecuniary interest in any matter with which the council is likely to be concerned. There is a corresponding public accountability purpose and third party access is a secondary purpose.

 

Section 602 - Rates Record - The primary purpose is to record the value of a parcel of land and record rate liability in respect of that land. The secondary purpose includes recording the owner or lessee of each parcel of land. For example, that a disclosure on a section 603 (of the LGA) rating certificate that a previous owner was a pensioner is considered to be allowed, because the secondary purpose is “a purpose relating to the purpose of the register”.

 

Purposes of public registers under the Environmental Planning and Assessment Act

 

Section 100 – Register of consents and approvals – The primary purpose is to identify applications for development consent and other approvals, confirm determinations on appeal and identify applications for complying development certificates.

 

Section 149G – Record of building certificates – The primary purpose is to identify all building certificates.

 


Purposes of public registers under the Protection of the Environment (Operations) Act

 

Section 308 – Public register of licences held – The primary purpose is to identify all licences granted under the Act. 

 

Purposes of the public register under the Impounding Act

 

Section 30 & 31 – Record of impounding – The primary purpose is to identify any impounding action by Council.

 

Secondary purpose of all Public Registers

 

Due to the general emphasis (to be found in the LGA and elsewhere) on local government processes and information being open and accountable, it is considered that a secondary purpose for which all public registers are held by Council includes the provision of access to members of the public. Therefore disclosure of specific records from public registers would normally be considered to be allowable under section 57 of the PPIPA. 

 

However, requests for access, copying or the sale of the whole or a substantial part of a Public Register held by Council will not necessarily fit within this purpose.  Council should be guided by the Privacy Code of Practice for Local Government in this respect. Where Council officers have doubt as to the intended use of the information, an applicant may be requested to provide a statutory declaration so that Council may satisfy itself as to the intended use of the information.

 

Council will make its assessment as to the minimum amount of personal information that is required to be disclosed with regard to any request.

 

Other Purposes

 

Persons or organisations who apply to Council to have access to the information contained in any public register for a purpose not related to the purpose of the register, may be given access at the discretion of Council but only in accordance with the Privacy Code of Practice for Local Government concerning Public Registers.

 

2.6    Applications for access to own records on a public register 

 

A person wishing to have access to a public register to confirm their own details needs only to prove their identity to Council before having access to their own personal information.

 

2.7    Applications for suppression in relation to a public register

 

An application for suppression in relation to a public register will be dealt with under PPIPA, rather than section 739 of the LGA.

 

A person about whom personal information is contained (or proposed to be contained) in a public register, may request Council under section 58 of the PPIPA to have the information removed from, or not placed on the register.

 

If Council is satisfied that the safety or well-being of any person would be affected by not suppressing the personal information as requested, Council will suppress the information in accordance with the request unless Council is of the opinion that the public interest in maintaining public access to the information outweighs any individual interest in suppressing the information, in accordance with section 58(2) of the PPIPA. (“Well-being” is defined in the Macquarie Dictionary as “the good or satisfactory condition of existence; welfare”.)

 

When in doubt, Council will err in favour of suppression.

 

Any information that is removed from, or not placed on, that aspect of a public register to be made public may be kept on the register for other purposes. That is, the information may still be used for council functions, but it cannot be disclosed to other parties.

 

An application for suppression should be made in writing addressed to the General Manager and must outline the reasons for the request. The Council may require supporting documentation where appropriate.

 

2.8    Other registers

 

Council may have other registers that are not public registers. The Information Protection Principles, this Plan, any applicable Codes and the PPIPA apply to those registers or databases.

 


Part 3 – The Information Protection Principles

 

3.1    Information Protection Principle 1 – Section 8

 

Section 8   Collection of personal information for lawful purposes

 

(1)     A public sector agency must not collect personal information unless:

(a)     the information is collected for a lawful purpose that is directly related to a function or activity of the agency, and

(b)     the collection of the information is reasonably necessary for that purpose.

(2)     A public sector agency must not collect personal information by any unlawful means.

 

The Privacy Code of Practice for Local Government

 

The Code makes no provision to depart from the requirements of this principle.

 

Council Policy

 

Council will only collect personal information for a lawful purpose as part of its proper functions. The LGA governs Council’s major obligations and functions. 

 

Section 22 of the LGA provides other functions under other Acts. Some of those Acts are as follows:

·       Community Land Development Act 1989

·       Companion Animals Act 1998**

·       Conveyancing Act 1919

·       Environmental Planning and Assessment Act 1979

·       Fire Brigades Act 1989

·       Fluoridation of Public Water Supplies Act 1957

·       Food Act 1989

·       Impounding Act 1993

·       Library Act 1939

·       Protection of the Environment Operations Act 1997

·       Public Health Act 1991

·       Recreation Vehicles Act 1983

·       Roads Act 1993

·       Rural Fires Act 1997

·       State Emergency Service Act 1989

·       Strata Schemes (Freehold Development ) Act 1973

·       Strata Schemes (Leasehold Development ) Act 1986;

·       Swimming Pools Act 1992

·       Public Health Act 1991

 

This list is not exhaustive.

Additionally, the exercise by Council of its functions under the LGA may also be modified by the provisions of other Acts. Some of those Acts follow:

 

·       Coastal Protection Act 1979;

·       Environmental Offences and Penalties Act 1989;

·       Government Information (Public Access) Act 2009;

·       Heritage Act 1977;

·       State Emergency and Rescue Management Act 1989;

·       Unclaimed Money Act 1995;

·       Unhealthy Building Land Act 1990.

 

The circumstances under which Council may collect information, including personal information, are varied and numerous.

 

Council will not collect any more personal information than is reasonably necessary for it to fulfil its proper functions.

 

Anyone engaged by Council as a private contractor or consultant that involves the collection of personal information must agree to be bound not to collect personal information by any unlawful means. This will include debt recovery actions by or undertaken on behalf of Council by commercial agents.

 

**Companion Animals Act

 

Collection of information under the Companion Animals Act and Council’s use of the Companion Animals Register should by guided by the Director General’s guidelines, which have been developed with the PPIPA in mind.

 

Role of the Privacy Contact Officer

 

In order to ensure compliance with Information Protection Principle 1, internet contact forms, rates notices, application forms of whatsoever nature, or written requests by which personal information is collected by Council; will be referred to the Privacy Contact Officer prior to adoption or use.

 

The Privacy Contact Officer will also provide advice as to:

 

1.   Whether the personal information is collected for a lawful purpose;

 

2.   If that lawful purpose is directly related to a function of Council; and

 

3.   Whether or not the collection of that personal information is reasonably necessary for the specified purpose.

 

Any further concerns of a legal nature will be referred to Council’s solicitor.

 

3.2    Information Protection Principle 2 – Direct Collection

 

Section 9   Collection of personal information directly from individual

 

A public sector agency must, in collecting personal information, collect the information directly from the individual to whom the information relates unless:

(a)     the individual has authorised collection of the information from someone else, or

(b)     in the case of information relating to a person who is under the age of 16 years—the information has been provided by a parent or guardian of the person.

 

The Privacy Code of Practice for Local Government

 

The Code makes provision for Council to depart from this principle where indirect collection of personal information is reasonably necessary when an award, prize, benefit or similar form of personal recognition is intended to be conferred upon the person to whom the information relates.

 

Council Policy

 

The compilation or referral of registers and rolls are the major means by which the Council collects personal information. For example, the information the Council receives from the Land Titles Office would fit within section 9(a) above. 

 

Other means include forms that customers may complete and lodge with Council for development consent, companion animal registration, applications for specific inspections or certifications or applications in respect of tree preservation orders.

 

In relation to petitions, the Council will treat the personal information contained in petitions in accordance with PPIPA.

 

Where Council or a Councillor requests or requires information from individuals or groups, that information will be treated in accordance with PPIPA.

 

Council regards all information concerning its customers as information protected by PPIPA. Council will therefore collect all personal information directly from its customers except as provided in section 9 or under other statutory exemptions or Codes of Practice. Council may collect personal information from other public sector agencies in respect of specific statutory obligations where it is authorised by law to do so. 

 

Where Council anticipates that it may otherwise need to collect personal information indirectly it will first obtain the authorisation of each individual under section 9 (a) of the PPIPA.

 

External and related bodies

 

Each of the following will be required to comply with this Plan, any applicable Privacy Code of Practice, and the PPIPA:

·       Council owned businesses

·       Council consultants

·       Private contractors

·       Council committees

 

Council will seek to contractually bind each of these bodies or persons to comply with the PPIPA. 

 

Where any of the above collect personal information on behalf of Council or in relation to the performance of their activities, that body or person will be required to:

·       obtain a written authorisation and consent to that collection; and

·       notify those persons in accordance with Information Protection Principle 3 as to the intended recipients and other matters required by that principle.

 

Council owned businesses, committees and private contractors or consultants must abide by this Plan, the Code and the PPIPA under the terms of their incorporation by Council or by contract.

 

Investigative Functions

 

Where Council is conducting an investigation, it will have regard to any applicable Direction of the Privacy Commissioner under section 41 of the PPIPA that may affect the application of Information Protection Principle 2.

 

Existing statutory exemptions under the Act

 

Compliance with Information Protection Principle 2 is also subject to certain exemptions under the Act. If one of those exemptions apply, Council need not comply. The statutory exemption will be relied upon only in very obvious and limited circumstances and legal advice should normally be obtained.

 

The relevant statutory exemptions follow:

 

Section 23(2) of the PPIPA permits non-compliance with Information Protection Principle 2 if the information concerned is collected in connection with proceedings (whether or not actually commenced) before any court or tribunal.

 

Section 24(4) of the PPIPA extends the operation of section 24(1) to councils and permits non-compliance with Information Protection Principle 2 if a council is:

 

(i)      investigating or otherwise handling a complaint or other matter that could be referred or made to, or has been referred from or made by, an investigative agency; and

(ii)      if compliance might detrimentally affect (or prevent the exercise of) the Council’s complaint handling or investigative functions.

 

Section 25(a) of the PPIPA permits non-compliance with Information Protection Principle 2 where the agency is lawfully authorised or required not to comply with the principle.

 

(iii)     Section 25(b) of the PPIPA permits non-compliance with Information Protection Principle 2 where non-compliance is “necessarily implied” or “reasonably contemplated” under any Act or law.

 

Section 26(1) of the PPIPA permits non-compliance with Information Protection Principle 2 if compliance would prejudice the interests of the individual concerned.

 

Further Explanation regarding IPP 2

 

Where Council cannot collect personal information directly from the person, it will ensure one of the following:

 

1.       Council has obtained authority from the person under section 9(a) of the PPIPA.

 

2.       The collection of personal information from a third party is permitted under an Act or law. (For example, the indirect collection from the Land Titles Office.)

 

3.       The collection of personal information from a parent or guardian is permitted provided the person is less than 16 years of age.

 

4.       The collection of personal information indirectly where one of the above exemptions applies.

 

5.       The collection of personal information indirectly is permitted under the Privacy Code of Practice for Local Government or the Investigative Code of Practice.

 

The only other exception to the above is in the case where Council is given unsolicited information.

 

3.3       Information Protection Principle 3 - Requirements when collecting personal information

 

Section 10 Requirements when collecting personal information

 

If a public sector agency collects personal information from an individual, the agency must take such steps as are reasonable in the circumstances to ensure that, before the information is collected or as soon as practicable after collection, the individual to whom the information relates is made aware of the following:

 

(a)     the fact that the information is being collected,

(b)     the purposes for which the information is being collected,

(c)     the intended recipients of the information,

(d)     whether the supply of the information by the individual is required by law or is voluntary, and any consequences for the individual if the information (or any part of it) is not provided,

(e)     the existence of any right of access to, and correction of, the information,

(f)      the name and address of the agency that is collecting the information and the agency that is to hold the information.

 

The Privacy Code of Practice for Local Government

 

The Code makes provision for Council to depart from this principle where personal information is collected about an individual for the purpose of conferring upon that person, an award, prize, benefit or similar form of personal recognition without prior or subsequent notification.

 

Council Policy

 

Where Council proposes to collect personal information directly from the person, it will inform that person that the personal information is being collected, what is done with that information and who the intended recipients will be.

 

Council will inform persons if the information is required by law or voluntarily given.  Council will also inform individuals which department or section within Council holds their personal information, and of the right to access and correct that information.  Council will adapt the general section 10 pre-collection Privacy Notification form as appropriate (See Appendix 2).

 

The following are examples of application procedures that will require a Privacy Notification Form in accordance with section 10:

·       Lodging Development Applications;

·       Lodging objections to Development Applications;

·       Lodging applications for approval under the LGA;

·       Any stamps or printed slips that contain the appropriate wording for notification under section 10 (see Appendix 2); and

·       When collecting an impounded item.

In relation to the Privacy Notification Form that may be attached to a Development Application provided to objectors, it could be stated that objectors have a right to remain anonymous if they so choose. However, should they need to substantiate their objections, anonymous objections may be given less weight (or no weight) in the overall consideration of the Application.

 

Post - Collection

 

Where Council collects personal information indirectly from another public sector agency in respect of any one of its statutory functions, it will advise those individuals that it has collected their personal information by including a privacy notification form in the next issue of their rates notice, or otherwise by letter. A common example of the collection of information from another public sector agency is the Land Titles Office. Council receives information as to new ownership changes when property is transferred from one owner to the next. Appendix 3 contains a sample Privacy Notification Form that could be used for post-collection.

 

External and related bodies

 

Each of the following will be required to comply with Information Protection Principle 3:

·       Council owned businesses

·       Council consultants

·       Private contractors

·       Council committees

 

Council will seek to contractually bind each of these bodies or persons to comply with the Information Protection Principle 3. 

 

Where any of the above collect personal information on behalf of Council or in relation to the performance of their activities, that body or person will be required to notify those persons in accordance with Information Protection Principle 3 as to the intended recipients and other matters required by that principle. 

 

Investigative Functions

 

Where Council is conducting an investigation, it will have regard to any applicable Direction of the Privacy Commissioner under section 41 of the PPIPA that may affect the application of Information Protection Principle 3.

 

Existing statutory exemptions under the Act

 

Compliance with Information Protection Principle 3 is also subject to certain exemptions under the Act. If one of those exemptions apply, Council need not comply. The statutory exemption will be relied upon only in limited circumstances and legal advice should normally be obtained.

 

The relevant statutory exemptions follow:

 

Section 23(3) permits non-compliance with Information Protection Principle 3 where information is collected for law enforcement purposes. Law enforcement means a breach of the criminal law and criminal law enforcement. This section does not remove the rights of an accused person.

 

Section 24(4) of the PPIPA extends the operation of section 24(1) to councils and permits non-compliance with Information Protection Principle 3 if a council is:

 

(i)      investigating or otherwise handling a complaint or other matter that could be referred or made to, or has been referred from or made by, an investigative agency; and

(ii)      if compliance might detrimentally affect (or prevent the exercise of) the Council’s complaint handling or investigative functions.

 

Section 25(a) of the PPIPA permits non-compliance with Information Protection Principle 3 where the agency is lawfully authorised or required not to comply with the principle.

 

Section 25(b) of the PPIPA permits non-compliance with Information Protection Principle 3 where non-compliance is “necessarily implied” or “reasonably contemplated” under any Act or law.

 

Section 26(1) of the PPIPA permits non-compliance with Information Protection Principle 3 if compliance would prejudice the interests of the individual concerned.

 

Section 26(2) of the PPIPA permits non-compliance where the person expressly consents to such non-compliance.

 

Disclosure of information of research purposes

 

The disclosure of personal information for research purposes will be allowed only in accordance with any applicable Direction made by the Privacy Commissioner under section 41 of PPIPA or any Research Code of Practice made by the Attorney General as may be in force for the time being.

 

3.4       Information Protection Principle 4 - Other requirements relating to collection of personal information

 

Section 11 Other requirements relating to collection of personal information

 

If a public sector agency collects personal information from an individual, the agency must take such steps as are reasonable in the circumstances (having regard to the purposes for which the information is collected) to ensure that:

(a)     the information collected is relevant to that purpose, is not excessive, and is accurate, up to date and complete, and

(b)     the collection of the information does not intrude to an unreasonable extent on the personal affairs of the individual to whom the information relates.

 

The Privacy Code of Practice for Local Government

 

The Code makes no provision to depart from this principle.

 

Council Policy

 

Council will seek to ensure that no personal information is collected which is not directly relevant to its proper functions.

 

Council collects personal information through the various forms that customers may complete and lodge with Council. Before adoption of a new form, a draft form will be reviewed for compliance with Information Protection Principle 4 by the EEO Officer, Council’s solicitor, Public Officer or other suitable person. Should Council have any residual doubts, the opinion of the Office of the Privacy Commissioner NSW will be sought.

 


3.5       Information Protection Principle 5 - Retention and security of personal information

 

Section 12 Retention and security of personal information

 

A public sector agency that holds personal information must ensure:

(a)     that the information is kept for no longer than is necessary for the purposes for which the information may lawfully be used, and

(b)     that the information is disposed of securely and in accordance with any requirements for the retention and disposal of personal information, and

(c)     that the information is protected, by taking such security safeguards as are reasonable in the circumstances, against loss, unauthorised access, use, modification or disclosure, and against all other misuse, and

(d)     that, if it is necessary for the information to be given to a person in connection with the provision of a service to the agency, everything reasonably within the power of the agency is done to prevent unauthorised use or disclosure of the information.

 

The Privacy Code of Practice for Local Government

 

The Code makes no provision to depart from this principle.

 

Council Policy

 

Council may comply with this principle by using any or all of the following or similar documents:

·       Records and Archives Services Manual;

·       The Council’s Policy on Security of and Access to Misconduct Files;

·       Council’s Internet Security Policy;

·       Information Technology Security Policy; and

·       General Records Disposal Schedule for Local Government.

 

Disclosure of information of research purposes

 

The disclosure of personal information for research purposes will be allowed only in accordance with any applicable Direction made by the Privacy Commissioner under section 41 of PPIPA or any Research Code of Practice made by the Attorney General as may be in force for the time being.

 

3.6    Information Protection Principle 6 - Information held by agencies

 

Section 13 Information about personal information held by agencies

 

A public sector agency that holds personal information must take such steps as are, in the circumstances, reasonable to enable any person to ascertain:

(a)     whether the agency holds personal information, and

(b)     whether the agency holds personal information relating to that person, and

(c)     if the agency holds personal information relating to that person:

(i)      the nature of that information, and

(ii)     the main purposes for which the information is used, and

(iii)     that person's entitlement to gain access to the information.

 

The Privacy Code of Practice for Local Government

 

The Code makes no provision to depart from this principle.

 

Council Policy

 

Section 13 of the PPIPA requires a council to take reasonable steps to enable a person to determine whether the council holds personal information about them. If Council holds any information about a person, upon request it will advise them the nature of that information, the main purposes for which it is held, and that person’s entitlement to access. As a matter of practicality, not every item of personal information, however insignificant, will be capable of ascertainment.

 

Under section 20(5) of the PPIPA, Information Protection Principle 6 is subject to any applicable conditions or limitations contained in the Government Information (Public Access) Act 2009 (“GIPA Act”). Council must consider the relevant provisions of the GIPA Act. 

 

Any person can make application to Council by completing the appropriate form and submitting it to Council. An example is at Appendix 4.

 

Where council receives an application or request by a person as to whether council holds information about them, council will undertake a search of its records to answer the enquiry. Council may ask the applicant to describe what dealings the applicant has had with council in order to assist council to conduct the search.

 

Council will ordinarily provide a response to applications of this kind within 28 days of the application being made.  The fee structure is commensurate to that of the Council’s GIPA Act rates structure.

 

Investigative Functions

 

Where Council is conducting an investigation, it will have regard to any applicable Direction of the Privacy Commissioner under section 41 of the PPIPA that may affect the application of Information Protection Principle 6.

 

Existing exemptions under the Act

 

Compliance with Information Protection Principle 6 is also subject to certain exemptions under the Act. If one of those exemptions apply, Council need not comply.  The statutory exemption will be relied upon only in limited circumstances and legal advice should normally be obtained.

 

Section 25(a) of the PPIPA permits non-compliance with Information Protection Principle 6 where Council is lawfully authorised or required not to comply with the principle.

 

Section 25(b) of the PPIPA permits non-compliance with Information Protection Principle 6 where non-compliance is “necessarily implied” or “reasonably contemplated” under any Act or law. 

 

Reporting matters

 

The Council will issue a statement to be included on its Web page (if it has one) and in its Annual Report concerning the nature of personal information it regularly collects, the purpose for which the personal information is used and an individual’s right to access their own personal information. 

3.7       Information Protection Principle 7 - Access to personal information held by agencies

 

Section 14 Access to personal information held by agencies

 

A public sector agency that holds personal information must, at the request of the individual to whom the information relates and without excessive delay or expense, provide the individual with access to the information.

 

The Privacy Code of Practice for Local Government

 

The Code makes no provision to depart from this principle.

 

Council Policy

 

Section 14 of the PPIPA requires a council, at the request of any person, to give access to that person to personal information held about them.

 

Compliance with Information Protection Principle 7 does not allow disclosure of information about other people. If access to information that relates to someone else is sought, the application must be made under the GIPA Act, unless Information Protection Principles 11 and 12 or the Public Register provisions apply.

 

Where a person makes an application for access under the PPIPA and it is involved or complex, it may be referred, with the written consent of the applicant, as an application under the GIPA Act. However use of the GIPA Act is to be a last resort.  The applicant has the right to insist on being dealt with under PPIPA.

 

Under section 20(5) of the PPIPA, Information Protection Principle 7 is subject to any applicable conditions or limitations contained in the Government Information (Public Access) Act 2009 (“GIPA Act”). Council must consider the relevant provisions of the GIPA Act.

 

Customers wishing to exercise their right of access to their own personal information should apply in writing or direct their inquiries to the General Manager, who will make a determination.  A sample form is provided at Appendix 5.

 

Members of staff wishing to exercise their right of access to their personal information should apply in writing on the attached form or direct their inquiries to the Manager of Personnel, who will deal with the application.

 

In order to comply with the requirement to provide the requested information “without excessive delay or expense”, Council will ordinarily provide a response to applications of this kind within 28 days of the application being made.

 

Investigative Functions

 

Where Council is conducting an investigation, it will have regard to any applicable Direction of the Privacy Commissioner under section 41 of the PPIPA that may affect the application of Information Protection Principle 7.

 

Existing exemptions under the Act

 

Compliance with Information Protection Principle 7 is also subject to certain exemptions under the Act. If one of those exemptions apply, Council need not comply. The statutory exemption will be relied upon only in limited circumstances and legal advice should normally be obtained.

 

Section 25(a) of the PPIPA permits non-compliance with Information Protection Principle 7 where Council is lawfully authorised or required not to comply with the principle.

 

Section 25(b) of the PPIPA non-compliance with Information Protection Principle 7 where non-compliance is “necessarily implied” or “reasonably contemplated” under any Act or law.

 

3.8    Information Protection Principle 8 - Alteration of personal information

 

Section 15 Alteration of personal information

 

(1)     A public sector agency that holds personal information must, at the request of the individual to whom the information relates, make appropriate amendments (whether by way of corrections, deletions or additions) to ensure that the personal information:

(a)     is accurate, and

(b)     having regard to the purpose for which the information was collected (or is to be used) and to any purpose that is directly related to that purpose, is relevant, up to date, complete and not misleading.

(2)     If a public sector agency is not prepared to amend personal information in accordance with a request by the individual to whom the information relates, the agency must, if so requested by the individual concerned, take such steps as are reasonable to attach to the information, in such a manner as is capable of being read with the information, any statement provided by that individual of the amendment sought.

(3)     If personal information is amended in accordance with this section, the individual to whom the information relates is entitled, if it is reasonably practicable, to have recipients of that information notified of the amendments made by the public sector agency.

(4)     This section, and any provision of privacy code of practice that relates to the requirements set out in this section, apply to public sector agencies despite section 25 of this Act and section 21 of the State Records Act 1998.

(5)     The Privacy Commissioner’s guidelines under section 36 may make provision for or with respect to requests under this section, including the way in which such a request should be made and the time within which such a request should be dealt with.

(6)     In this section (and in any other provision of this Act I connection with the operation of this section), public sector agency includes a Minister and a Minister’s personal staff.

 

The Privacy Code of Practice for Local Government

 

The Code makes no provision to depart from this principle.

 

Council Policy

 

Section 15 of the PPIPA allows a person to make an application to council to amend (this includes by way of corrections, deletions or additions) personal information held about them so as to ensure the information is accurate, and, having regard to the purpose for which the information is collected, relevant to that purpose, up to date and not misleading.

 

Council wishes to have its information current, accurate and complete. Proposed amendments or changes to the personal information held by the Council are welcomed.

 

If Council declines to amend personal information as requested, it will on request of the individual concerned, place an addendum on the information in accordance with section 15(2) of the PPIPA.

 

Where there are complaints that are or could be the subject of a staff complaint or grievance, they will be referred to the Manager Personnel in the first instance and treated in accordance with the “Grievance and Complaint Handling Procedures”. 

 

Any alterations that are or could be the subject of a customer complaint or grievance will be referred to the General Manager, who will make a determination in relation to the matter.

 

Investigative Functions

 

Where Council is conducting an investigation, it will have regard to any applicable Direction of the Privacy Commissioner under section 41 of the PPIPA that may affect the application of Information Protection Principle 8.

 

Existing exemptions under the Act

 

Compliance with Information Protection Principle 8 is also subject to certain exemptions under the Act. If one of those exemptions apply, Council need not comply. The statutory exemption will be relied upon only in limited circumstances and legal advice should normally be obtained.

 

Section 25(a) of the PPIPA permits non-compliance with Information Protection Principle 8 where Council is lawfully authorised or required not to comply with the principle.

 

Section 25(b) of the PPIPA permits non-compliance with section Information Protection Principle 8 where non-compliance is “necessarily implied” or “reasonably contemplated” under any Act or law.

 

Procedure

 

Where information is requested to be amended (either by way of correction, deletion or addition), the individual to whom the information relates, must make a request. That request should be accompanied by appropriate evidence as to the cogency of the making of the amendment, sufficient to satisfy the Council that the proposed amendment is factually correct and appropriate. The Council may require further documentary evidence to support certain amendments. Council will not charge to process an application to amend a record under s.15.

 

The Council’s application form for alteration under IPP 8 is at Appendix 6 at the end of this Plan.

 

Where Council is not prepared to amend

 

If the Council is not prepared to amend the personal information in accordance with a request by the individual the Council may attach to the information in such a manner as is capable of being read with the information, any statement provided by that individual.

 

Where an amendment is made

 

If personal information is amended in accordance with this section, the individual to whom the information relates is entitled, if it is reasonably practicable, to have the recipients of that information notified of the amendments made by the Council.

The Council will seek to notify recipients of information as soon as possible, of the making of any amendment, where it is reasonably practicable.

 

State Records Act

 

The State Records Act does not allow for the deletion of records. However, as a result of section 20(4) of the PPIPA, some deletions may be allowed in accordance with Information Protection Principle 8.

 

3.9       Information Protection Principle 9 - Agency must check accuracy of personal information before use

 

Section 16 Agency must check accuracy of personal information before use

 

A public sector agency that holds personal information must not use the information without taking such steps as are reasonable in the circumstances to ensure that, having regard to the purpose for which the information is proposed to be used, the information is relevant, accurate, up to date, complete and not misleading.

 

The Privacy Code of Practice for Local Government

 

The Code makes no provision to depart from this principle.

 

Council Policy

 

The steps taken to comply with section 16 will depend on the age of the information, its likelihood of change and the particular function for which the information was collected.

 

The more significant the information, the greater the necessity that checks to ensure its accuracy and currency be undertaken prior to its use.

 

For example, each employee’s record should be updated when there is any change of circumstances or when the employee’s contact details change.

 

3.10  Information Protection Principle 10 - Limits on use of personal information

 

Section 17 Limits on use of personal information

 

A public sector agency that holds personal information must not use the information for a purpose other than that for which it was collected unless:

(a)     the individual to whom the information relates has consented to the use of the information for that other purpose, or

(b)     the other purpose for which the information is used is directly related to the purpose for which the information was collected, or

(c)     the use of the information for that other purpose is necessary to prevent or lessen a serious and imminent threat to the life or health of the individual to whom the information relates or of another person.

 

The Privacy Code of Practice for Local Government

 

The Code makes provision that Council may use personal information for a purpose other than the purpose for which it was created in the following circumstances:

(i)      where the use is in pursuance of Council’s lawful and proper function/s and Council is satisfied that the personal information is reasonably necessary for the exercise of such function/s; or

(ii)      where personal information is to be used for the purpose of conferring upon a particular person, an award, prize, benefit or similar form of personal recognition. 

 


Explanatory Note

 

Council may use personal information obtained for one purpose for another purpose in pursuance of its lawful and proper functions.  For example, the Rates Record that Council holds under section 602 of the LGA may also be used to:

·     notify neighbours of a proposed development;

·     evaluate a road opening; or

·     evaluate a tree preservation order.

 

Council Policy

 

Council will seek to ensure that information collected for one purpose will be used for that same purpose. Where Council may need to use personal information collected for one purpose for another purpose, it will first gain the consent of the individual concerned, unless an exemption applies.

 

External and related bodies

 

Each of the following will be required to comply with the Information Protection Principle 10:

·       Council owned businesses

·       Council consultants;

·       Private contractors; and

·       Council committees.

 

Council will seek to contractually bind each of these bodies or persons to comply.

 

Where any of the above seek to use personal information collected for one purpose, that body or person will be required to obtain the written consent of those persons in accordance with section 17(a) to the use of the information for another purpose.

 


The form of consent should include the following elements:

 

 


I, (1)

 

(1) insert full name

 

 

 

of (2)

 

 

(2) insert address

 

 

 

hereby consent under section 17(a) of the Privacy and Personal

 

(3) insert Council name

Information Protection Act 1998 to (3):

 

 

 

 

 

 

 

 

 

using the information collected from me by (4):

 

 

(4) insert name of

 

 

collecting body/person

 

 

 

for the purpose of (5):

 

 

(5) insert purpose/s info

 

 

was collected for

 

 

 

Signature

 

 

 

 

 

Name to be printed

 

 

 

 

 

Date signed

          /         /

 

 

 

Investigative Functions

 

Where Council is conducting an investigation, it will have regard to any applicable Direction of the Privacy Commissioner under section 41 of the PPIPA that may affect the application of Information Protection Principle 10.

 

Existing exemptions under the Act

 

Compliance with Information Protection Principle 10 is also subject to certain exemptions under the Act.  If one of those exemptions apply, Council need not comply. The statutory exemption will be relied upon only in limited circumstances and legal advice should normally be obtained.

 

Section 23(4) of the PPIPA permits Council not to comply with Information Protection Principle 10 where the use of the information for another purpose is reasonably necessary for law enforcement purposes or for the protection of the public revenue.  Law enforcement purposes means a breach of the criminal law and criminal law enforcement. This section does not remove the rights of an accused person.  Protection of the public revenue means a fraud with respect to taxes or other revenue earning processes such as avoidance of stamp duty.

Section 24(4) of the PPIPA extends the operation of section 24(2) to councils and permits non-compliance with Information Protection Principle 10 if a council is:

 

(i)      investigating or otherwise handling a complaint or other matter that could be referred or made to, or has been referred from or made by, an investigative agency; and

(ii)      the use of the information concerned for a purpose other than the purpose for which it was collected is reasonably necessary in order to enable the council to exercise its complaint handling functions or any of its investigative functions.

 

Section 25(a) of the PPIPA permits non-compliance with Information Protection Principle 10 where Council is lawfully authorised or required not to comply with the principle.

 

Section 25(b) of the PPIPA permits non-compliance with Information Protection Principle 10 where non-compliance is “necessarily implied” or “reasonably contemplated” under any Act or law.

 

Section 28(3) of the PPIPA permits non-compliance where a disclosure is to be made to a public sector agency under the administration of the Minister for Local Government (e.g., the Department of Local Government) or a public sector agency under the administration of the Premier for the purpose of informing the Minister (or Premier) about any matter within the Minister’s (or Premier’s) administration.

 

3.11    Information Protection Principle 11 - Limits on disclosure of personal information

 

Section 18 Limits on disclosure of personal information

(1)     A public sector agency that holds personal information must not disclose the information to a person (other than the individual to whom the information relates) or other body, whether or not such other person or body is a public sector agency, unless:

(a)     the disclosure is directly related to the purpose for which the information was collected, and the agency disclosing the information has no reason to believe that the individual concerned would object to the disclosure, or

(b)     the individual concerned is reasonably likely to have been aware, or has been made aware in accordance with section 10, that information of that kind is usually disclosed to that other person or body, or

(c)     the agency believes on reasonable grounds that the disclosure is necessary to prevent or lessen a serious and imminent threat to the life or health of the individual concerned or another person.

(2)     If personal information is disclosed in accordance with subsection (1) to a person or body that is a public sector agency, that agency must not use or disclose the information for a purpose other than the purpose for which the information was given to it.

 

The Privacy Code of Practice for Local Government

 

The Code makes provision for council to depart from this principle in the circumstances described below:

 

1.       Council may disclose personal information to public sector agencies or public utilities on condition that:

(i)      the agency has approached Council in writing;

(ii)      Council is satisfied that the information is to be used by that agency for the proper and lawful function/s of that agency, and

(iii)     Council is satisfied that the personal information is reasonably necessary for the exercise of that agency’s function/s.

2.       Where personal information which has been collected about an individual is to be disclosed for the purpose of conferring upon that person, an award, prize, benefit or similar form of personal recognition.

 

3.       Where Council is requested by a potential employer, it may verify that a current or former employee works or has worked for Council, the duration of that work, and the position occupied during that time. This exception shall not permit Council to give an opinion as to that person’s suitability for a particular position with any potential employer unless Council is satisfied that the person has provided their consent for Council to provide a reference, which may include an opinion as to that person’s suitability for the position for which he/she has applied.

 

Council Policy

 

Council will not disclose the information to another person or other body, unless the disclosure is directly related to the purpose for which the information was collected or where the Council has no reason to believe that the individual concerned would object to the disclosure.

 

Council may disclose personal information to another person or other body where this disclosure is directly related to the purpose for which the personal information was collected and the individual concerned is reasonably likely to have been aware, (or has been made aware in accordance with section 10), of the intended recipients of that information. “Directly related” can mean the disclosure to another person or agency to deliver a service which supplements that of Council or disclosure to a consultant for the purpose of assessing or reviewing the delivery of a program to which the original collection relates.

 

The council may disclose personal information to another person or other body where this disclosure is necessary to prevent or lessen a serious and imminent threat to the life or health of the individual concerned or another person.

 

Public Registers

 

Sections 18 and 57 of the PPIPA should be read in conjunction in regard to Public Registers. Public Registers are discussed further in Part 2 of this Plan.

 

Investigative Functions

 

Where Council is conducting an investigation, it will have regard to any applicable Direction of the Privacy Commissioner under section 41 of the PPIPA that may affect the application of Information Protection Principle 11.

 

Existing exemptions under the Act

 

Compliance with Information Protection Principle 11 is also subject to certain exemptions under the Act. If one of those exemptions apply, Council need not comply. The statutory exemption will be relied upon only in limited circumstances and legal advice should normally be obtained.

 

Section 23(5)(a) of the PPIPA permits non-compliance with Information Protection Principle 11 where disclosure is made to a law enforcement agency in connection with proceedings for an offence or for law enforcement purposes. Law enforcement purposes means a breach of the criminal law and criminal law enforcement. However Council need not disclose material that it is entitled to refuse in the absence of a subpoena, warrant or other lawful requirement.

 

Section 23(5)(b) of the PPIPA permits non-compliance with Information Protection Principle 11 where the disclosure is made to a law enforcement agency for the purpose of ascertaining the whereabouts of a person reported to be missing. However Council need not disclose material that it is entitled to refuse in the absence of a subpoena, warrant or other lawful requirement.

 

Section 23(5)(c) of the PPIPA permits non-compliance with Information Protection Principle 11 where disclosure is authorised by subpoena, search warrant or other statutory instrument. However Council need not disclose material that it is entitled to refuse in the absence of a subpoena, warrant or other lawful requirement.

 

Section 23(5)(d)(i) of the PPIPA permits non-compliance with Information Protection Principle 11 where disclosure is reasonably necessary for the protection of the public revenue. Protection of the public revenue could mean a fraud with respect to taxes or other revenue earning processes such as avoidance of stamp duty. However Council need not disclose material that it is entitled to refuse in the absence of a subpoena, warrant or other lawful requirement.

 

Section 23(5)(d)(ii) of the PPIPA permits non-compliance with Information Protection Principle 11 where disclosure is reasonably necessary to investigate an offence where there are reasonable grounds to believe an offence has been committed. 

 

Section 24(4) of the PPIPA permits non-compliance with Information Protection Principle 11 if:

(i)      investigating a complaint that could be referred or made to, or has been referred from or made by, an investigative agency, and

(ii)      if the disclosure is to an investigative agency.

 

(Note: “investigative agency” is defined at s.3 of PPIPA.)

 

Section 25(a) of the PPIPA permits non-compliance with Information Protection Principle 11 where Council is lawfully authorised or required not to comply with the principle. Section 25(b) of the PPIPA permits non-compliance with Information Protection Principle 11 where non-compliance is “necessarily implied” or “reasonably contemplated” under any Act or law. 

 

Section 26(2) of the PPIPA permits non-compliance where the person expressly consents to such non-compliance.

 

Section 28(3) of the PPIPA permits non-compliance where a disclosure is to be made to a public sector agency under the administration of the Minister for Local Government (e.g. the Division of Local Government) or a public sector agency under the administration of the Premier for the purpose of informing the Minister (or Premier) about any matter within the Minister’s (or Premier’s) administration.

 

It is anticipated that a disclosure of personal information for research purposes will be allowed under a s.41 Direction made by the Privacy Commissioner until such time as a Research Code of Practice is made by the Attorney General.

 

Suppression

 

Information held by Council may be suppressed such as to disallow disclosure that would otherwise be allowed in the circumstances outlined above. See Part 1 of this Plan for more details about suppression of personal information.

 

3.12    Information Protection Principle 12 - Special restrictions on disclosure of personal information

 

Section 19 Special restrictions on disclosure of personal information

(1)     A public sector agency must not disclose personal information relating to an individual's ethnic or racial origin, political opinions, religious or philosophical beliefs, trade union membership, sexual activities unless the disclosure is necessary to prevent a serious or imminent threat to the life or health of the individual concerned or another person.

(2)     A public sector agency that holds personal information must not disclose the information to any person or body who is in a jurisdiction outside New South Wales or to a Commonwealth agency unless:

(a)     a relevant privacy law that applies to the personal information concerned is in force in the that jurisdiction or applies to that Commonwealth agency, or

(b)     the disclosure is permitted under a privacy code of practice.

(3)     For the purposes of subsection (2), a relevant privacy law means a law that is determined by the Privacy Commissioner, by notice published in the Gazette, to be a privacy law for the jurisdiction concerned.

(4)     The Privacy Commissioner is to prepare a code relating to the disclosure of personal information by public sector agencies to persons or bodies outside New South Wales and to Commonwealth agencies.

(5)     Subsection (2) does not apply:

(a)     until after the first anniversary of the commencement of this section, or

(b)     until a code referred to in subsection (4) is made,

whichever is the later.

 

The Privacy Code of Practice for Local Government

 

The Code makes provision for Council to depart from this principle in the circumstances described below:

 

1.       For the purposes of s.19(2) only, where Council is requested by a potential employer outside New South Wales, it may verify that a current or former employee works or has worked for Council, the duration of that work, and the position occupied during that time. This exception shall not permit Council to give an opinion as to that person’s suitability for a particular position with any potential employer unless Council is satisfied that the person has provided their consent for Council to provide a reference, which may include an opinion as to that person’s suitability for the position for which he/she has applied.

 

Council Policy

 

Council will not disclose personal information relating to an individual's ethnic or racial origin, political opinions, religious or philosophical beliefs, trade union membership, health or sexual activities unless the disclosure is necessary to prevent a serious or imminent threat to the life or health of the individual concerned or another person.

Public Registers

 

Sections 19 and 57 of the PPIPA should be read in conjunction in regard to Public Registers.  Public Registers are discussed further in Part 2 of this Plan.

 

Investigative Functions

 

Where Council is conducting an investigation, it will have regard to any applicable Direction of the Privacy Commissioner under section 41 of the PPIPA that may affect the application of Information Protection Principle 12.

 

Existing exemptions under the Act

 

Compliance with Information Protection Principle 12 is also subject to certain exemptions under the Act. If one of those exemptions apply, Council need not comply. The statutory exemption will be relied upon only in limited circumstances and legal advice should normally be obtained.

 

Section 23(7) of the PPIPA permits non-compliance with Information Protection Principle 12 where the disclosure is necessary to investigate an offence or where there are reasonable grounds to believe an offence has been or may be committed. 

 

Section 25(a) of the PPIPA permits non-compliance with Information Protection Principle 12 where Council is lawfully authorised or required not to comply with the principle.

 

Section 25(b) of the PPIPA permits non-compliance with Information Protection Principle 12 where non-compliance is “necessarily implied” or “reasonably contemplated” under any Act or law. 

 

Section 26(2) of the PPIPA permits non-compliance where the person expressly consents to such non-compliance.

 

Section 28(2) permits non-compliance with Information Protection Principle 12 where, in the case of health information, the consent of the person cannot reasonably be obtained and the disclosure is made by an authorised person to another authorised person. “Authorised person” means a medical practitioner, health worker, or other official or employee providing health or community services who is employed or engaged by a public sector agency.

 

Section 28(3) of the PPIPA permits non-compliance where a disclosure is to be made to a public sector agency under the administration of the Minister for Local Government (e.g. the Division of Local Government) or a public sector agency under the administration of the Premier for the purpose of informing the Minister (or Premier) about any matter within the Minister’s (or Premier’s) administration.

 

It is anticipated that a disclosure of personal information for research purposes will be allowed under a s.41 Direction made by the Privacy Commissioner until such time as a Research Code of Practice is made by the Attorney General.

 

Suppression

 

Information held by Council may be suppressed such as to disallow disclosure that would otherwise be allowed in the circumstances outlined above. See Part 1 of this Plan for more details about suppression of personal information.

 


Part 4 – Health Privacy Principles

 

In 2002, most references to ‘health information’ were taken out of the PPIPA and separate legislation was enacted. The HRIPA was enacted to deal with this specific type of personal information. On and from September 2004, various agencies and organisations, including local councils were expected to comply with the HRIPA in their collection and management of health information.

 

Health information includes personal information that is information or an opinion about the physical or mental health or a disability of an individual. Health information also includes personal information that is information or an opinion about:

·       a health service provided, or to be provided, to an individual;

·       an individual’s express wishes about the future provision of health services to him or her;

·       other personal information collected in connection with the donation of human tissue; or

·       genetic information that is or could be predictive of the health of an individual or their relatives or descendants.

 

Health information is defined in section 6 of the HRIPA.  Local councils will often hold health information by reason of their role in elder care, child care and various types of community health support services. It is therefore very important for councils to be familiar with the 15 Health Protection Principles (“HPP”) set down in Schedule 1 to the HRIPA.  Each of these HPPs are considered below.

 

The following is a non-exhaustive list of examples of the types of health information and circumstances in which councils may collect health information in exercising their functions:

·       Tree pruning/removal application where residents approach council for a reconsideration or reassessment of a tree pruning/removal application on medical grounds;

·       Issuing of clean up orders which may include recording information about a residents health, GP professional contact details or involvement with mental health services;

·       Volunteer programs where volunteers are asked to disclose health conditions which may preclude them from some types of volunteer work;

·       Meals on wheels programs where residents may be asked for medical or dietary requirements, e.g. allergies for catering purposes;

·       Seniors bus outings where information may be collected on special medical needs;

·       Councils may provide respite and social support services collecting information that is consistent with the client intake and referral record system;

·       Information on families for the purposes of children’s services. e.g. history of illness, allergies, asthma, diabetes, epilepsy etc;

·       Physical exercise classes;

·       Some councils run Podiatry services;

·       Information may be collected through a healthy community program;

·       Children’s immunization records; and

·       Family counsellor/youth support workers records.

 

HPPs 1-4 concern the collection of health information, HPP 5 concerns the storage of health information, HPPs 6-9 concern the access and accuracy of health information, HPP 10 concerns the use of health information, HPP 11 concerns the disclosure of health information, HPPs 12-13 concern the identifiers and anonymity of the persons to which health information relate, HPPs 14-15 concern the transferral of health information and the linkage to health records across more than one organisation.

 

Health Privacy Principle 1

 

Purposes of collection of health information

 

(1)     An organisation must not collect health information unless:

 

(a)     the information is collected for a lawful purpose that is directly related to a function or activity of the organisation, and

(b)     the collection of the information is reasonably necessary for that purpose.

 

(2)   An organisation must not collect health information by any unlawful means.

 

Health Privacy Principle 2

 

Information must be relevant, not excessive, accurate and not intrusive

 

An organisation that collects health information from an individual must take such steps as are reasonable in the circumstances (having regard to the purposes for which the information is collected) to ensure that:

 

(a)     the information is collected is relevant to that purpose, is not excessive and is accurate, up to date and complete, and

(b)     the collection of the information does not intrude to an unreasonable extent on the personal affairs of the individual to whom the information relates.

 

Health Privacy Principle 3

 

Collection to be from the individual concerned

(1)     An organisation must collect health information about an individual only from that individual, unless it is unreasonable or impracticable to do so.

(2)     Health information is to be collected in accordance with any guidelines issued by the Privacy Commissioner for the purposes of this clause.

 

Health Privacy Principle 4

 

Individual to be made aware of certain matters

 

(1)     An organisation that collects health information about an individual from the individual must, at or before the time it collects the information (or if that is not practicable, as soon as practicable after that time), take steps that are reasonable in the circumstances to ensure that the individual is aware of the following:

 

(a)     the identity of the organisation and how to contact it,

(b)     the fact that the individual is able to request access to the information,

(c)     the purposes for which the information is collected,

(d)     the persons to whom (or the type of persons to whom) the organisation usually discloses information of that kind,

(e)     any law that requires the particular information to be collected,

(f)      the main consequences (if any) for the individual if all or part of the information is not provided.

 

(2)     If the organisation collects health information about an individual from someone else, it must take any steps that are reasonable in the circumstances to ensure that the individual is generally aware of the matters listed in subclause (1) except to the extent that:

 

(a)     making the individual aware of the matters would impose a serious threat to the life or health of any individual, or

(b)     the collection is made in accordance with guidelines issued under subclause (3).

 

(3)     The Privacy Commissioner may issue guidelines setting out circumstances in which an organisation is not required to comply with subclause (2).

 

(4)     An organisation is not required to comply with a requirement of this clause if:

 

(a)     the individual to whom the information relates has expressly consented to the organisation not complying with it or,

(b)     the organisation is lawfully authorised or required not to comply with it, or

(c)     non-compliance is otherwise permitted (or necessarily implied or reasonably contemplated) under any Act or any other law including the State Records Act 1998), or

(d)     compliance by the organisation would, in the circumstances, prejudice the interests of the individual to whom the information relates, or

(e)     the information concerned is collected for law enforcement purposes or,

(f)      the organisation is an investigative agency and compliance might detrimentally affect (or prevent the proper exercise of) its complaint handling functions or any of its investigative functions.

 

(5)     If the organisation reasonably believes that the individual is incapable of understanding the general nature of the matters listed in subclause (1), the organisation must take steps that are reasonable in the circumstances, to ensure that any authorised representative of the individual is aware of those matters.

 

(6)     Subclause (4) (e) does not remove any protection provided by any other law in relation to the rights of accused persons or persons suspected of having committed an offence.

 

(7)     The exemption provided by subclause (4) (f) extends to any public sector agency, or public sector official, who is investigating or otherwise handling a compliant or other matter that could be referred or made to an investigative agency, or that has been referred from or made by an investigative agency.

 

Council Policy

 

Council will only collect health information for a lawful purpose that is directly related to Council’s activities and is necessary for that purpose (HPP 1)

 

Council will ensure that the health information is relevant, accurate, up to date and not excessive and that the collection is not unnecessarily intrusive into the personal affairs of the individual (HPP 2).

 

Council will only collect health information directly from the individual that the information concerns, unless it is unreasonable or impractical for Council to do so. (HPP 3).

 

Council will tell the person why the health information is being collected, what will be done with it, who else might see it and what the consequences are if the person decides not to provide it. Council will also tell the person how he or she can see and correct the health information.

 

If Council collects health information about a person from someone else, Council will take reasonable steps to ensure that the subject of the information is aware of the above points (HPP 5).

 

Health Privacy Principle 5

 

Retention and Security

 

(1)     An organisation that holds health information must ensure that:

 

(a)     the information is kept for no longer than is necessary for the purposes for which the information may lawfully be used, and

(b)     the information is disposed of securely and in accordance with any requirements for the retention and disposal of health information, and

(c)     the information is protected, by taking such security safeguards as are reasonable in the circumstances against loss, unauthorised access, use, modification or disclosure, and against all other misuse, and

(d)     if it is necessary for the information to be given to a person in connection with the provision of a service to the organisation, everything reasonably within the power of an organisation is done to prevent the unauthorised use or disclosure of the information.

 

Note. Division 2 (Retention of health information) of Part 4 contains provisions applicable to private sector persons in connection with the matters dealt with in this clause.

 

(2)     An organisation is not required to comply with a requirement of this clause if:

 

(a)     the organisation is lawfully authorised or required not to comply with it, or

(b)     non-compliance is otherwise permitted (or is necessarily implied or reasonably contemplated) under an Act or any other law (including the State Records Act 1998).

(3)     An investigative agency is not required to comply with subclause (1)(a).

 

Council Policy

Council will store health information securely and protect health information from unauthorised access, use or disclosure. Health information will not be kept for any longer than is necessary and will be disposed of appropriately (HPP 5).

 

Health Privacy Principle 6

Information about health information held by organisations

(1)     An organisation that holds health information must take such steps as are, in the circumstances, reasonable, to enable any individual to ascertain:

(a)     whether the organisation holds health information, and

(b)     whether the organisation holds health information relating to that individual, and

(c)     if the organisation holds health information relating to that individual:

(i)      the nature of that information

(ii)     the main purposes for which the information is used, and

(iii)     that person’s entitlement to request access to the information.

(2)     An organisation is not required to comply with a provision of this clause if:

(a)     the organisation is lawfully authorised or required not to comply with the provision concerned, or

(b)     non-compliance is otherwise permitted (or is necessarily implied or reasonably contemplated) under any Act or any other law (including the State Records Act 1998).

 

Health Privacy Principle 7

Access to health information

(1)     An organisation that holds health information must, at the request of the individual to whom the information relates and without excessive delay or expense, provide the individual with access to the information.

Note. Division 3 (Access to health information) of Part 4 contains provisions applicable to private sector persons in connection with the matters dealt with in this clause.  Access to health information held by public sector agencies may also be available under the Government Information (Public Access) Act 2009 or the State Records Act 1998.

(2)     An organisation is not required to comply with a provision of this clause if:

(a)     the organisation is lawfully authorised or required not to comply with the provision concerned, or

(b)     non-compliance is otherwise permitted (or is necessarily implied or reasonably contemplated) under an Act or any other law (including the State Records Act 1998).

 

Health Privacy Principle 8

 

Amendment of health information

 

(1)     An organisation that holds health information must, at the request of the individual to whom the information relates, make appropriate amendments (whether by way of corrections, deletions or additions) to ensure that the health information:

(a)     is accurate, and

(b)     having regard to the purpose for which the information was collected (or is to be used) and to any purpose that is directly related to that purpose, is relevant, up to day, complete and not misleading.

 

(2)     If an organisation is not prepared to amend health information under subclause (1) in accordance with a request by the information to whom the information relates, the organisation must, if so requested by the individual concerned, take such steps as are reasonable to attach to the information, in such a manner as is capable of being read with the information, any statement provided by that individual of the amendment sought.

 

(3)     If health information is amended in accordance with this clause, the individual to whom the information relates is entitled, if it is reasonably practicable, to have recipients of that information notified of the amendments made by the organisation.

Note. Division 4 (Amendment of health information) of Part 4 contains provisions applicable to private sector persons in connection with the matters dealt with in this clause.

Amendment of health information held by public sector agencies may also be able to be sought under the Privacy and Personal Information Protection Act 1998.

 

(4)     An organisation is not required to comply with a provision of this clause if:

(a)     the organisation is lawfully authorised or required not to comply with the provision concerned, or

(b)     non-compliance is otherwise permitted (or is necessarily implied or reasonably contemplated) under an Act or any other law (including the State Records Act 1998).

 

Health Privacy Principle 9

 

Accuracy

 

An organisation that holds health information must not use the information without taking such steps as are reasonable in the circumstances to ensure that, having regard to the purpose for which the information is proposed to be used, the information is relevant, accurate and up to date, complete and not misleading.

 

Council Policy

 

Council will provide details about what health information Council is holding about an individual and with information about why Council is storing that information and what rights of access the individual has (HPP 6).

 

Council will allow the individual to access his or her health information without reasonable delay or expense (HPP 7).

 

Council will allow the individual to update, correct or amend his or her health information where necessary (HPP 8).

 

Council will make sure that the health information is relevant and accurate before using it (HPP 9).

 

Health Privacy Principle 10

 

(1)     An organisation that holds health information must not use the information for a purpose (a secondary purpose) other than the purpose (the primary purpose) for which it was collected unless:

(a)     Consent

the individual to whom the information relates has consented to the use of the information for that secondary purpose, or

(b)     Direct relation

the secondary purpose is directly related to the primary purpose and the individual would reasonably expect the organisation to use the information for the secondary purpose or,

Note: For example, if information is collected in order to provide a health service to the individual, the use of the information to provide a further health service to the individual is a secondary purpose directly related to the primary purpose.

(c)     Serious threat to health or welfare

the use of the information for the secondary purpose is reasonably believed by the organisation to be necessary to lessen or prevent:

(i)  a serious and imminent threat to the life, health or safety of the individual or another person, or

(ii)      a serious threat to public health and safety, or

(d)     Management of health services

the use of the information for the secondary purpose is reasonably necessary for the funding, management, planning or evaluation of health services and:

(i)      either:

(A)  that purpose cannot be served by the use of information that does not identify the individual or from which the individual or from which the individual’s identity cannot reasonably be ascertained and it is impracticable for the organisation to seek the consent of the individual for the use, or

(B)     reasonable steps are taken to de-identify the information, and

(ii)     if the information is in a form that could reasonably be expected to identify individuals, the information is not published in a generally available publication, and

(iii)     the use of the information is in accordance with guidelines, if any, issued by the Privacy Commissioner for the purposes of this paragraph, or

 

(e)     Training

the use of the information for the secondary purpose is reasonably necessary for the training of employees of the organisation or persons working with the organisation and:

(i)      either:

(A)  that purpose cannot be served by the use of information that does not identify the individual or from which the individual’s identity cannot reasonably be ascertained and it is impracticable for the organisation to seek the consent of the individual for the use, or

(B)     reasonable steps are taken to de-identify the information, and

(ii)     if the information could reasonably be expected to identify individuals, the information is not published in a generally available publication, and

(iii)     the use of the information is in accordance with guidelines, if any, issued by the Privacy Commissioner for the purposes of this paragraph, or

(f)      Research

the use of the information for the secondary purpose is reasonably necessary for research, or the compilation or analysis of statistics, in the public interest and:

(i)      either:

(A)  that purpose cannot be served by the use of information that does not identify the individual or from which the individual’s identity cannot reasonably be ascertained and it is impracticable for the organisation to seek the consent of the individual for the use, or

(B)     reasonable steps are taken to de-identify the information, and

(ii)     if the information could reasonably be expected to identify individuals, the information is not published in a generally available publication, and

(iii)     the use of the information is in accordance with guidelines, if any, issued by the Privacy Commissioner for the purpose of this paragraph, or

 

(g)     Find missing person

the use of the information for the secondary purpose is by a law enforcement agency (or such other person or organisation as may be prescribed by the regulations) for the purposes of ascertaining the whereabouts of an individual who has been reported to a police officer as a missing person, or

(h)     Suspected unlawful activity, unsatisfactory professional conduct or breach of discipline

the organisation:

(i)      has reasonable grounds to suspect that:

(A)     unlawful activity has been or may be engaged in, or

(B) a person has or may have engaged in conduct that may be unsatisfactory professional conduct or professional misconduct under a the Health Practitioner Regulation National Law (NSW), or

(C) an employee of the organisation has or may have engaged in conduct that may be grounds for disciplinary action, and

(ii)     uses the health information as a necessary part of its investigation of the matter or in reporting its concerns to relevant persons or authorities, or

(i)      Law enforcement

the use of the information for the secondary purpose is reasonably necessary for the exercise of law enforcement functions by law enforcement agencies in circumstances where there are reasonable grounds to believe that an offence may have been, or may be, committed, or

(j)      Investigative agencies

the use of the information for the secondary purpose is reasonably necessary for the exercise of complaint handling functions or investigative functions by investigative agencies, or

 

 

(k)     Prescribed circumstances

the use of the information for the secondary purpose is in the circumstances prescribed by the regulations for the purposes of this paragraph.

 

(2)     An organisation is not required to comply with a provision of this clause if:

 

(a)     the organisation is lawfully authorised or required not to comply with the provision concerned, or

(b)     non-compliance is otherwise permitted (or is necessarily implied or reasonably contemplated) under an Act or any other law (including the State Records Act 1998).

 

(3)     The Ombudsman’s Office, Health Care Complaints Commission, Anti-Discrimination Board and Community Services Commission are not required to comply with a provision of this clause in relation to their complaint handling functions and their investigative, review and reporting functions.

 

(4)     Nothing in this clause prevents or restricts the disclosure of health information by a public sector agency:

(a)     to another public sector agency under the administration of the same Minister if the disclosure is for the purposes of informing that Minister about any matter within that administration, or

(b)     to any public sector agency under the administration of the Premier, if the disclosure is for the purposes of informing the Premier about any matter.

 

(5)     The exemption provided by subclause (1) (j) extends to any public sector agency, or public sector official, who is investigating or otherwise handling a complaint or other matter that could be referred or made to an investigative agency, or that has been referred from or made by an investigative agency.

 

Council policy

 

Council will only use the health information for the purpose for which it was collected or for a directly related purpose that the individual to whom the information relates would expect. Otherwise, Council will obtain the individual’s consent (HPP 10).

 

Health Privacy Principle 11

 

(1)     An organisation that holds health information must not disclose the information for a purpose (a secondary purpose) other than the purpose (the primary purpose) for which it was collected unless:

(a)     Consent

the individual to whom the information relates has consented to the disclosure of the information for that secondary purpose, or

(b)     Direct relation

the secondary purpose is directly related to the primary purpose and the individual would reasonably expect the organisation to disclose the information for the secondary purpose, or

Note: For example, if information is collected in order to provide a health service to the individual, the disclosure of the information to provide a further health service to the individual is a secondary purpose directly related to the primary purpose.

(c)     Serious threat to health or welfare

the disclosure of the information for the secondary purpose is reasonably believed by the organisation to be necessary to lessen or prevent:

(i) a serious and imminent threat to the life, health or safety of the individual or another person, or

(ii) a serious threat to public health or public safety, or

(d)     Management of health services

the disclosure of the information for the secondary purpose is reasonably necessary for the funding, management, planning or evaluation of health services and:

(i)      either:

(A)  that purpose cannot be served by the disclosure of information that does not identify the individual or from which the individual’s identity cannot reasonably be ascertained and it is impracticable for the organisation to seek the consent of the individual for the disclosure, or

(B)  reasonable steps are taken to de-identify the information, and

 

(ii)     if the information could reasonably be expected to identify individuals, the information is not published in a generally available publication, and

(iii)     the disclosure of the information is in accordance with guidelines, if any, issued by the Privacy Commissioner for the purposes of this paragraph, or

(e)     Training

the disclosure of the information for the secondary purpose is reasonably necessary for the training of employees of the organisation or persons working with the organisation and:

(i)      either:

(A)  that purpose cannot be served by the disclosure of information that does not identify the individual or from which the individual’s identity cannot reasonably be ascertained and it is impracticable for the organisation to seek the consent of the individual for the disclosure, or

(B)     reasonable steps are taken to de-identify the information, and

(ii)     if the information could reasonably be expected to identify the individual, the information is not made publicly available, and

(iii)     the disclosure of the information is in accordance with guidelines, if any, issued by the Privacy Commissioner for the purposes of this paragraph, or

(f)      Research

the disclosure of the information for the secondary purpose is reasonably necessary for research, or the compilation or analysis of statistics, in the public interest and:

(i)      either:

(A)  that purpose cannot be served by the disclosure of information that does not identify the individual or from which the individual’s identity cannot reasonably be ascertained and it is impracticable for the organisation to seek the consent of the individual for the disclosure, or

(B)     reasonable steps are taken to de-identify the information, and

(ii)     the disclosure will not be published in a form that identifies particular individuals or from which an individual’s identity can reasonably be ascertained, and

(iii)     the disclosure of the information is in accordance with guidelines, if any, issued by the Privacy Commissioner for the purposes of this paragraph, or

(g)     Compassionate reasons

the disclosure of the information for the secondary purpose is to provide the information to an immediate family member of the individual for compassionate reasons and:

(i)      the disclosure is limited to the extent reasonable for those compassionate reasons, and

(ii)     the individual is incapable of giving consent to the disclosure of the information, and

(iii)     the disclosure is not contrary to any wish expressed by the individual (and not withdrawn) of which the organisation was aware or could make itself aware by taking reasonable steps, and

(iv)    if the immediate family member is under the age of 18 years, the organisation reasonably believes that the family member has sufficient maturity in the circumstances to receive the information, or

(h)     Finding missing person

the disclosure of the information for the secondary purpose is to a law enforcement agency (or such other person or organisation as may be prescribed by the regulations) for the purposes of ascertaining the whereabouts of an individual who has been reported to a police officer as a missing person, or

(i)      Suspected unlawful activity, unsatisfactory professional conduct or breach of discipline

the organisation:

(i)      has reasonable grounds to suspect that:

(A)     unlawful activity has been or may be engaged in, or

(B)  a person has or may have engaged in conduct that may be unsatisfactory professional conduct or professional misconduct under a the Health Practitioner Regulation National Law (NSW), or

(C)  an employee of the organisation has or may have engaged in conduct that may be grounds for disciplinary action, and

(ii)     discloses the health information as a necessary part of its investigation of the matter or in reporting its concerns to relevant persons or authorities, or

(j)      Law enforcement

the disclosure of the information for the secondary purpose is reasonably necessary for the exercise of law enforcement functions by law enforcement agencies in circumstances where there are reasonable grounds to believe that an offence may have been, or may be, committed, or

(k)     Investigative agencies

the disclosure of the information for the secondary purpose is reasonably necessary for the exercise of complaint handling functions or investigative functions by investigative agencies, or

(l)      Prescribed circumstances

the disclosure of the information for the secondary purpose is in the circumstances prescribed by the regulations for the purposes of this paragraph.

 

(2)     An organisation is not required to comply with a provision of this clause if:

(a)     the organisation is lawfully authorised or required not to comply with the provision concerned, or

(b)     non-compliance is otherwise permitted (or is necessarily implied or reasonably contemplated) under an Act or any other law (including the State Records Act 1998 ), or

(c)     the organisation is an investigative agency disclosing information to another investigative agency.

 

(3)     The Ombudsman’s Office, Health Care Complaints Commission, Anti-Discrimination Board and Community Services Commission are not required to comply with a provision of this clause in relation to their complaint handling functions and their investigative, review and reporting functions.

 

(4)     Nothing in this clause prevents or restricts the disclosure of health information by a public sector agency:

(a)     to another public sector agency under the administration of the same Minister if the disclosure is for the purposes of informing that Minister about any matter within that administration, or

(b)     to any public sector agency under the administration of the Premier, if the disclosure is for the purposes of informing the Premier about any matter.

 

(5)     If health information is disclosed in accordance with subclause (1), the person, body or organisation to whom it was disclosed must not use or disclose the information for a purpose other than the purpose for which the information was given to it.

 

(6)     The exemptions provided by subclauses (1) (k) and (2) extend to any public sector agency, or public sector official, who is investigating or otherwise handling a complaint or other matter that could be referred or made to an investigative agency, or that has been referred from or made by an investigative agency.

 

Council Policy

 

Council will only disclose health information under the following circumstances:

 

·     With the consent of the individual to whom the information relates; or

·     For the purpose for which the health information was collected or a directly related purpose that the individual to whom it relates would expect; or

·     If an exemption applies (HPP 11).

 

Health Privacy Principle 12

 

Identifiers

(1)     An organisation may only assign identifiers to individuals if the assignment of identifiers is reasonably necessary to enable the organisation to carry out any of its functions efficiently.

 (2)    Subject to subclause (4), a private sector person may only adopt as its own identifier of an individual an identifier of an individual that has been assigned by a public sector agency (or by an agent of, or contractor to, a public sector agency acting in its capacity as agent or contractor) if:

(a)     the individual has consented to the adoption of the same identifier, or

(b)     the use or disclosure of the identifier is required or authorised by or under law.

(3)     Subject to subclause (4), a private sector person may only use or disclose an identifier assigned to an individual by a public sector agency (or by an agent of, or contractor to, a public sector agency acting in its capacity as agent or contractor) if:

(a)     the use or disclosure is required for the purpose for which it was assigned or for a secondary purpose referred to in one or more paragraphs of HPP 10 (1) (c)-(k) or 11 (1) (c)-(l), or

(b)     the individual has consented to the use or disclosure, or

(c)     the disclosure is to the public sector agency that assigned the identifier to enable the public sector agency to identify the individual for its own purposes.

(4)     If the use or disclosure of an identifier assigned to an individual by a public sector agency is  necessary for a private sector person to fulfil its obligations to, or the requirements of, the public sector agency, a private sector person may either:

(a)     adopt as its own identifier of an individual an identifier of the individual that has been assigned by the public sector agency, or

(b)     use or disclose an identifier of the individual that has been assigned by the public sector agency.

 

Council Policy

 

Council will only give an identification number to health information if it is reasonably necessary for Council to carry out its functions effectively (HPP 12).

 

Health Privacy Principle 13

 

Anonymity

Wherever it is lawful and practicable, individuals must be given the opportunity to not identify themselves when entering into transactions with or receiving health services from an organisation.

Council Policy

Council will provide health services anonymously where it is lawful and practical (HPP 13).

 

Health Privacy Principle 14

 

Transborder data flows and data flow to Commonwealth agencies.

An organisation must not transfer health information about an individual to any person or body who is in a jurisdiction outside New South Wales or to a Commonwealth agency unless:

(a)     the organisation reasonably believes that the recipient of the information is subject to a law, binding scheme or contract that effectively upholds principles for fair handling of the information that are substantially similar to the Health Privacy Principles, or

(b)     the individual consents to the transfer, or

(c)     the transfer is necessary for the performance of a contract between the individual and the organisation, or for the implementation of pre-contractual measures taken in response to the individual’s request, or

(d)     the transfer is necessary for the conclusion or performance of a contract concluded in the interest of the individual between the organisation and a third party, or

(e)     all of the following apply:

(i)      the transfer is for the benefit of the individual,

(ii)     it is impracticable to obtain the consent of the individual to that transfer,

(iii)     if it were practicable to obtain such consent, the individual would be likely to give it, or

(f)      the transfer is reasonably believed by the organisation to be necessary to lessen or prevent:

(i)      a serious and imminent threat to the life, health or safety of the individual or another person, or

(ii)     a serious threat to public health or public safety, or

(g)     the organisation has taken reasonable steps to ensure that the information that it has transferred will not be held, used or disclosed by the recipient of the information inconsistently with the Health Privacy Principles, or

(h)     the transfer is permitted or required by an Act (including an Act of the Commonwealth) or any other law.

 

Council Policy

 

Council will only transfer personal information out of New South Wales if the requirements of Health Privacy Principle 14 are met.

 

 

Health Privacy Principle 15

 

Linkage of health records

(1)     An organisation must not:

(a)   include health information about an individual in a health records linkage system unless the individual has expressly consented to the information being so included, or

(b)   disclose an identifier of an individual to any person if the purpose of the disclosure is to include health information about the individual in a health records linkage system, unless the individual has expressly consented to the identifier being disclosed for that purpose.

 

(2)     An organisation is not required to comply with a provision of this clause if:

(a)   the organisation is lawfully authorised or required not to comply with the provision concerned, or

(b)   non-compliance is otherwise permitted (or is necessarily implied or reasonably contemplated) under an Act or any other law (including the State Records Act 1998 ), or

(c)   the inclusion of the health information about the individual in the health records information system (including an inclusion for which an identifier of the individual is to be disclosed) is a use of the information that complies with HPP 10 (1) (f) or a disclosure of the information that complies with HPP 11 (1) (f).

(3)     In this clause:

 

health record means an ongoing record of health care for an individual.

health records linkage system means a computerised system that is designed to link health records for an individual held by different organisations for the purpose of facilitating access to health records, and includes a system or class of systems prescribed by the regulations as being a health records linkage system, but does not include a system or class of systems prescribed by the regulations as not being a health records linkage system.

 

Council Policy

 

Council will only include health information in a system to link health records across more than one organisation if the individual to whom the health information relates expressly consents to the link (HPP 15).

 


Part 5 – Implementation of the Privacy Management Plan

 

5.1    Training Seminars/Induction

 

During induction, all employees should be made aware that the performance management system has the potential to include personal information on their individual work performance or competency.

 

Councillors, all staff of the Council including staff of council businesses, and members of council committees should be acquainted with the general provisions of the PPIPA, the HRIPA and in particular, the 12 Information Protection Principles (IPPs), the 15 Health Privacy Principles (HPPs), the Public Register provisions, the Privacy Code of Practice for Local Government, this Plan and any other applicable Code of Practice.

 

5.2    Responsibilities of the Privacy Contact Officer

 

It is assumed that the Public Officer within Council will be assigned the role of the Privacy Contact Officer unless the General Manager has directed otherwise. 

 

In order to ensure compliance with PPIPA and the HRIPA, the Privacy Contact Officer will review all contracts and agreements with consultants and other contractors, rates notices, application forms of whatsoever nature, and other written requests by which personal information is collected by Council, to ensure that Council is in compliance with the PPIPA.

 

Interim measures to ensure compliance with IPP 3 in particular may include the creation of stamps or printed slips that contain the appropriate wording (see Appendices 2 and 3).

 

The Privacy Contact Officer will ensure Council in its public areas has special provisions for working with computer screens. Computer screens may require:

 

·     fast screen savers;

·     face the computers away from the public; or

·     only allow the record system to show one record at a time.

 

Council’s electronic databases should also be reviewed to ensure that they contain procedures and protocols to check the accuracy and currency of personal and health information.

 

The Privacy Contact Officer will also provide opinions within Council as to:

 

(i)      Whether the personal or heath information is collected for a lawful purpose;

 

(ii)      If that lawful purpose is directly related to a function of Council; and

 

(iii)     Whether or not the collection of that personal or heath information is reasonably necessary for the specified purpose.

 

Any further concerns of a legal nature will be referred to Council’s solicitor.

 

Should the Council require, the Privacy Contact Officer may assign designated officers as “Privacy Resource Officers”, within the larger departments of Council. In this manner the Council may ensure that the information protection principles are more broadly understood and that individual departments have a greater focus on the information protection principles and are directly applied to Council’s day to day functions.

 

5.3    Distribution of information to the public

 

Council may prepare its own literature such as pamphlets on the PPIPA, HRIPA or it may obtain and distribute copies of literature available from the Office of the Privacy Commissioner NSW.

 


Part 6 – Internal Review

 

6.1    How does the process of Internal Review operate?

 

Under section 53 of the PPIPA a person (the applicant) who is aggrieved by the conduct of a council is entitled to a review of that conduct. An application for internal review is to be made within 6 months of when the person first became aware of the conduct.

 

The application is to be in writing and addressed to Council’s Privacy Contact Officer. The Privacy Contact Officer will appoint a Reviewing Officer to conduct the internal review. The Reviewing Officer must not be substantially involved in any matter relating to the application. The Reviewing Officer must be an employee and suitability qualified. 

 

The review must be completed as soon as is reasonably practicable in the circumstances. If the review is not completed within 60 days of the lodgement, the applicant is entitled to seek external review.

 

The Council must notify the Privacy Commissioner of an application as soon as practicable after its receipt, keep the Commissioner informed of the progress of the application and inform the Commissioner of the findings of the review and of the action it proposes to take in relation to the application.

 

The Privacy Commissioner is entitled to make submissions in relation to internal reviews and the council is required to consider any relevant material submitted by the Privacy Commissioner. The Council must provide the Privacy Commissioner with a draft of the council’s internal review report to enable the Privacy Commissioner to make a submission.

 

Council may provide a copy of any submission by Privacy Commissioner’s to the applicant.

 

The Council must notify the applicant of the outcome of the review within 14 days of its determination.  A copy of the final review should also be provided to the Privacy Commissioner where it departs from the draft review.

 

An internal review checklist has been prepared by the Office of the Privacy Commissioner NSW and can be accessed from its website http://www.ipc.nsw.gov.au.

 

The Privacy Commissioner must be notified of a complaint, briefed on progress and notified of the outcome of an internal review under the PPIPA or HRIPA.

 

6.2    What happens after an Internal Review?

 

If the complainant remains unsatisfied, he/she may appeal to the Administrative Decisions Tribunal which hears the matter afresh and may impose its own decision and can make a range of orders including an award of damages for a breach of an information protection principle or a health privacy principle.

 


Part 7 – Other Relevant Matters

 

7.1    Contracts with consultants and other private contractors

 

It is necessary to have specific provisions to protect the Council in any dealings with private contractors.

 

7.2    Confidentiality

 

The obligation of confidentiality is additional to and separate from that of privacy. Nevertheless, a duty to withhold information lies at the heart of both concepts. Confidentiality attaches to information per se, personal or health information to the person to whom that information relates.

 

An obligation of confidentiality exists for all employees whether express or implied as a matter of law.

 

Information which may be confidential is also likely to have a separate and independent obligation attaching to it in the form of privacy and in that regard, a release for the purposes of confidentiality will not suffice for privacy purposes. Two separate releases will be required and, in the case of privacy, the person to whom the information relates will be required to provide the release.

 

7.3    Misuse of personal or health information

 

Section 664 of the LGA makes it an offence for anyone to disclose information except in accordance with that section. Whether or not a particular disclosure is made with lawful excuse is a matter that requires legal opinion from case to case.

 

7.4    Regular review of the collection, storage and use of personal or health information

 

The information practices relating to the collection, storage and use of personal or health information will be reviewed by the Council every three (3) years. Any new program initiatives will be incorporated into the review process with a view to ascertaining whether or not those programs comply with the PPIPA.

 

7.5    Regular review of Privacy Management Plan

 

When information practices are reviewed from time to time, the Privacy Management Plan will also be reviewed to ensure that the Plan is up to date.

 

7.6    Further information

 

For assistance in understanding the processes under the PPIPA and HRIPA, please contact the Council or the Office of the Privacy Commissioner NSW.

 


Part 8 – Appendices

 

 

 

APPENDIX 1:     Statutory Declaration For Access Under Section 57 Of The Privacy And Personal Information Protection Act 1998 To A Public Register Held By
Council
49

APPENDIX 2:     Privacy Notification Form - Section 10 (Pre – Collection) 50

APPENDIX 3:     Privacy Notification Form - Section 10 (Post – Collection) 51

APPENDIX 4:     Application Under Section 13 Of The Privacy And Personal Information Protection Act 1998: To Determine Whether Council Holds Personal Information About A Person. 52

APPENDIX 5:     Application Under Section 14 Of The Privacy And Personal Information Protection Act 1998: For Access To Applicant’s Personal Information. 53

APPENDIX 6:     Application Under Section 15 Of The Privacy And Personal Information Protection Act 1998: For Alteration Of Applicant’s Personal Information. 54


BYRON SHIRE COUNCIL

Staff Reports - Sustainable Environment and Economy                           5.1 - Attachment 5

Appendix 1: Statutory Declaration for access under Section 57 of the Privacy and Personal Information Protection Act 1998 to a Public Register held by Council

 

Statutory Declaration

Oaths Act, 1900, Ninth Schedule

 

 

I, the undersigned (1)

 

 

(1) insert full name

 

 

 

of (2)

 

 

(2) insert address

 

 

 

in the State of New South Wales, do solemnly and sincerely declare that:

 

 

 

 

 

 

I am (3)

 

 

(3) insert relationship, if

 

 

 

any, to person inquired

 

 

 

about

I seek to know whether (4)

 

 

(4) insert name

 

 

 

 

is on the public register of (5)

 

 

(5) Applicant to describe

 

 

 

the relevant public

 

 

 

public register

The purpose for which I seek this information is (6)

 

 

(6) insert purpose for

 

 

 

seeking information

 

 

 

 

The purpose for which the information is required is to (7)

 

 

(7) insert purpose

 

 

 

 

 

 

 

And I make this solemn declaration conscientiously believing the same to be true and by virtue of the Oats Act 1994.

 

 

 

 

Signature of Applicant

 

 

 

 

Declared at:

 

 

 

in the said State this

 

day of

 

20

 

 

 

 

 

 

 

before me.

 

 

Signature of Justice of the Peace/Solicitor

 

 

 

 

 

Name of Justice of the Peace/Solicitor to be printed

 


Appendix 2: Privacy Notification Form - Section 10 (Pre – Collection)

 

(Addressed to the person from whom information is about to be collected or has been collected.)

 

The personal information that Council is collecting from you is personal information for the purposes of the Privacy and Personal Information Protection Act 1998 (PPIPA).

 

The intended recipients of the personal information are:

 

·        officers within the Council;

·        data service providers engaged by the Council from time to time;

·        any other agent of the Council; and

·       

 

(Insert Name of other intended recipients)

 

The supply of information by you is:

r Voluntary

r Not voluntary

 

 

 

If you cannot provide, or do not wish to provide, the information sought, the Council

r maybe unable to process your application.

r will be unable to process your application.

 

 

Council is collecting this personal information from you in order to:

 

 

You may make application for access or amendment to information held by Council.

 

You may also make a request that Council suppress your personal information from a public register. Council will consider any such application in accordance with the PPIPA.

 

Council is to be regarded as the agency that holds the information. However, if it is not Council who holds or controls the information, please state below who does:

 

 

Byron Shire Council

 

Enquiries concerning this matter can be addressed to:

 

Tracey Dousling 02 66267322, email tracey.dousling@byron.nsw.gov.au

Trish Kirkland 02 662677209, email trish.kirland@byron.nsw.gov.au

 

 

Signature

 

 

 

Name to be printed

 

 

 

Date signed

          /         /


Appendix 3: Privacy Notification Form - Section 10 (Post – Collection)

 

(Addressed to the person from whom information has been collected.)

 

The personal information that Council has collected from you is personal information for the purposes of the Privacy and Personal Information Protection Act 1998 (PPIPA).

 

The intended recipients of the personal information are:

 

·        officers within the Council;

·        data service providers engaged by the Council from time to time;

·        any other agent of the Council; and

·       

 

(Insert name of other intended recipients)

 

The supply of information by you is:

r Voluntary

r Not voluntary

 

 

 

If you cannot provide, or do not wish to provide, the information sought, the Council

may:

 

 

 

Council has collected this personal information from you in order to:

 

 

You may make application for access or amendment to information held by Council.

 

You may also make a request that Council suppress your personal information from a public register. Council will consider any such application in accordance with the PPIPA.

 

Council is to be regarded as the agency that holds the information. However, if it is not Council who holds or controls the information, please state below who does:

 

 

Byron Shire Council

 

Enquiries concerning this matter can be addressed to:

 

Tracey Dousling 02 66267322, email tracey.dousling@byron.nsw.gov.au

Trish Kirkland 02 662677209, email trish.kirland@byron.nsw.gov.au

 

Signature

 

 

 

Name to be printed

 

 

 

Date signed

          /         /

 


Appendix 4: Application under Section 13 of the Privacy and Personal Information Protection Act 1998: To determine whether Council holds personal information about a person.

 

Personal information held by the Council

 

I, (1)

 

(1) insert full name

 

 

 

of (2)

 

 

(2) insert address

 

 

 

Hereby request the General Manager of (3)

 

 

(3) insert name of Council

 

 

 

 

 

 

 

provide the following:

 

 

 

·     Does the Council hold personal information about me?

r Yes

r No

 

 

 

·     If so, what is the nature of that information?

 

 

 

 

·     What is the main purpose for holding the information?

 

 

 

 

·     Am I entitled to access the information?

r Yes

r No

 

My address for response to this application is:

 

 

 

State:

 

Post Code:

 

 

Note to applicants

 

Council will not record your address or any other contact details that you provide for any other purpose other than to respond to your application.

 

As an applicant, you have a right of access to personal information concerning yourself that is held by the Council under section 14 of the Privacy and Personal Information Protection Act 1998 (PPIPA). There is a separate application form to gain access.

 

The Council may refuse to process this application in part or in whole if:

·       there is an exemption to section 13 of the PPIPA; or

·       a Code of Practice may restrict the operation of section 14.

 

Enquiries concerning this matter can be addressed to:

 

Tracey Dousling 02 66267322, email tracey.dousling@byron.nsw.gov.au

Trish Kirkland 02 662677209, email trish.kirland@byron.nsw.gov.au


Appendix 5: Application under section 14 of the Privacy And Personal Information Protection Act 1998: For access to Applicant’s Personal Information

 

Personal information held by the Council

 

I, (1)

 

(1) insert full name

 

 

 

of (2)

 

 

(2) insert address

 

 

 

Hereby request that the(3)

 

 

(3) insert name of Council

 

 

 

 

 

 

 

Provide me with:

 

 

 

r (a) access to all personal information held concerning myself; or

r (b) access to the following personal information only (list information required below):

 

 

 

My address for response to this application is:

 

 

 

State:

 

Post Code:

 

 

 

Note to applicants

 

As an applicant, you have a right of access to personal information concerning yourself that is held by the Council under section 14 of the Privacy and Personal Information Protection Act 1998 (PPIPA).

 

You are entitled to have access without excessive delay or cost.

Council may refuse to process your application in part, or in whole, if:

·       the correct amount of fees has not been paid;

·       there is an exemption to section 14 of the PPIPA; or

·       a Code of Practice may restrict disclosure.

 

 

Enquiries concerning this matter can be addressed to:

 

Tracey Dousling 02 66267322, email tracey.dousling@byron.nsw.gov.au

Trish Kirkland 02 662677209, email trish.kirland@byron.nsw.gov.au


Appendix 6: Application under section 15 of the Privacy and Personal Information Protection Act 1998: For alteration of Applicant’s Personal Information

 

Personal information held by the Council

 

I, (1)

 

(1) insert full name

 

 

 

of (2)

 

 

(2) insert address

 

 

 

Hereby request that the(3)

 

 

(3) insert name of Council

 

 

 

 

 

 

 

alter personal information regarding myself in the following manner:

 

 

 

 

 

·     I propose the following changes:

 

 

 

 

·     The reasons for the changes are as follows:

 

 

 

·     The documentary bases for those changes is as shown on the attached documents

 

 

 

 

Note to Applicants :

You have a right to request appropriate amendments are made (whether by way of corrections, deletions or additions) to ensure that the personal information held by the Council:

(a)       is accurate, and

(b)       having regard to the purpose for which the information was collected (or is to be used) and to any purpose that is directly related to that purpose, is relevant, up-to- date, complete and not misleading.

 

If Council is not prepared to amend the personal information in accordance with a request by you, Council must take such steps as are reasonable to attach to the information in such a manner as is capable of being read with the information, any statement provided by you.

 

If your personal information is amended, you are entitled under the Privacy and Personal Information Protection Act 1998 (PPIPA), if it is reasonably practicable, to the have recipients of that information notified of the amendments made by Council.

 

Council may refuse to process your application in part, or in whole, if:

·       there is an exemption to section 15 of the PPIPA; or

·       a Code of Practice may restrict alteration.

 

Enquiries concerning this matter can be addressed to:

 

Tracey Dousling 02 66267322, email tracey.dousling@byron.nsw.gov.au

Trish Kirkland 02 662677209, email trish.kirland@byron.nsw.gov.au

 


BYRON SHIRE COUNCIL

Staff Reports - Sustainable Environment and Economy                                     5.2

 

 

Report No. 5.2             Heritage Strategy

Directorate:                 Sustainable Environment and Economy

Report Author:           Shannon Burt, Director Sustainable Environment and Economy

File No:                        I2015/1388

Theme:                         Ecology

                                      Development and Approvals

 

Summary:

 

Council was successful in receiving a Local Government Heritage Advisors Grant for the 2015-2016 period from the Office of Environment and Heritage (OEH). A requirement of this grant program is that each Council has to prepare, adopt and implement a heritage strategy.

 

The purpose of this report is to advise the Heritage Advisory Committee (HAC) of the requirements to prepare a heritage strategy and also what a heritage strategy is, and how it is to be prepared.

  

 

RECOMMENDATION:

That the Heritage Advisory Committee note the report.

 

 

Attachments:

 

1        Office of Environment and Heritage Publication  - Recommendations for local council heritage management, E2015/73930 , page 128  

2        Tenterfield Heritage Strategy 2015-2018, E2015/73922 , page 154  

 

 


 

Report

 

Council was successful in receiving a Local Government Heritage Advisors Grant for the 2015-2016 period.  A requirement of this grant program is that each Council has to prepare, adopt and implement a heritage strategy. This strategy must be based on the OEH’s publication, ‘Recommendations for local council heritage management’ (Attachment 1).

 

Further, as part of the funding agreement for the heritage advisor, the council must complete and submit an annual report on implementing its heritage strategy by 15 May each year.  This report is usually prepared by the Council’s heritage advisor and heritage officer (staff). In preparing the Annual Report all council’s are required to use the Heritage Strategy Annual report template.

 

To this aim Council has now appointed a heritage advisor, who will work with the HAC to prepare and implement a compliant Heritage Strategy and Annual report for Byron. A work plan and deliverables for this purpose will need to be developed.

 

To start the discussion, an example of a Heritage Strategy provided by Council’s Heritage Advisor is attached for information. The 9 heads of consideration in the Strategy are set out by OEH, but can be adapted to suit any place. There are other examples available on the OEH website.

 

Financial Implications

 

Council is required to comply with the grant funding requirements under the Local Government Heritage Advisor program. Claims for payment of the grant will only be made where the grant obligations are met.

 

Statutory and Policy Compliance Implications

 

Nil.

 


BYRON SHIRE COUNCIL

Staff Reports - Sustainable Environment and Economy                          5.2 - Attachment 1

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BYRON SHIRE COUNCIL

Staff Reports - Sustainable Environment and Economy                          5.2 - Attachment 2

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