Item 9: Legislation
Affecting Elected Members - General Explanation
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Council
28 October 2022
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REPORT R27117
Legislation
Affecting Elected Members - General Explanation
1. Purpose
of Report
1.1 To
provide elected members with a general explanation of laws affecting members as
per Schedule 7 clause 21 of the Local Government Act 2002.
2. Recommendation
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That
the Council
1. Receives the report Legislation
Affecting Elected Members - General Explanation (R27117); and
2. Particularly notes the provisions
and requirements outlined by the:
a. Local
Government Official Information and Meetings Act 1987
b. Local
Authorities (Members’ Interests) Act 1968
c. Crimes
Act 1961 sections 99, 105 and 105a
d. Secret
Commissions Act 1910
e. Financial
Markets Conduct Act 2013
as required under Schedule
7 clause 21 Local Government Act 2002
3. Further note the provisions and
requirements of the
a. Health
and Safety at Work Act 2015
b. Privacy
Act 2020
c. Local
Government (Pecuniary Interests Register) Amendment Act 2022
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3. Background
3.1 The
Local Government Act 2002 requires that a general explanation be provided to
all elected members of the provisions of the following legislation:
· Local Government
Official Information and Meetings Act 1987
· Local Authorities
(Members’ Interests) Act 1968
· Crimes Act 1961
sections 99, 105 and 105a
· Secret Commissions
Act 1910
· Financial Markets
Conduct Act 2013
3.2 This
report also provides a brief overview on several other newer pieces of
legislation.
3.3 The
Local Government (Pecuniary Interests Register) Amendment Act 2022 adds new
requirements for the reporting of interests to those already outlined in the
Local Authorities (Members’ Interests) Act 1968.
3.4 The
Privacy Act 2020 outlines the requirements on an Agency (and all its members,
staff and officers) with regard to the collation, storage, management and any
release of personal information.
3.5 The
Health and Safety at Work Act 2015 made substantial changes to New
Zealand’s health and safety management, and places particular obligations
on “Officers”, defined under the Act as any person occupying a
position in relation to the business or undertaking that allows that person to
exercise significant influence over the business or undertaking.
3.6 A
summary of each of these Acts is outlined below.
3.7 As
well as the legislation above, Nelson City Council activities are governed by
many further statutory requirements and elected members are encouraged to
familiarise themselves with these.
4. Local
Government Official Information and Meetings Act 1987
4.1 This Act requires
Agencies (including local authorities) to maintain transparency and
availability in relation to the information they hold, and to promote the open
and public transaction of business at meetings, to enable better participation
by the public in the actions of and decisions made by agencies, and to increase
accountability.
4.2 There
are provisions within the Act to protect official information and business
deliberations in some instances where making them public at that time would
negatively affect the public interest or personal privacy.
4.3 The
Office of the Ombudsman acts as the advisory and adjudicating body in relation
to queries or complaints under this Act.
Official Information
4.4 All
information held by Council, including that produced or held by elected members
within the requirements of their role, falls within the scope of this Act and
may be requested.
4.5 Any
requests for information received by elected members should be provided to lgoima@ncc.govt.nz
as soon as possible for appropriate action under the Act, which specifies clear
time frames that must be met for actions taken in relation to requests.
Meeting Procedures
4.6 The
Act outlines several requirements for formal meetings of the Council (that is,
a meeting where decisions, recommendations and or resolutions are made)
including public notification, access to agendas and minutes, and attendance by
the public. It makes provision for the maintenance of orderly conduct of the
meeting as required.
4.7 It
notes the instances where local authorities may exclude the public from a
meeting or section of a meeting and how this must be handled.
5. Local
Authorities (Members’ Interests) Act 1968
5.1 This
Act outlines that an elected member and their spouse/ partner cannot hold or
have an interest in contracts with Council with a value of $25,000 or more per
year, with some caveats.
5.2 An
elected member may not discuss or vote on any matter in which they or their
spouse/ partner have a financial interest, with some caveats.
5.3 Penalties
include fines and or automatic disqualification from office.
6. Crimes
Act 1961 sections 99, 105 and 105a
6.1 This
Act outlines penalties for officials (including any member of any local
authority) who accept bribes or agree to accept bribes for actions taken or not
taken in the course of their official duties. The bribe may be for themselves
or another person. A bribe is defined as money, valuable consideration, office,
or employment, or any benefit, whether direct or indirect.
6.2 There
are also penalties for officials who corruptly use or disclose information
obtained in an official capacity for financial gain for themselves or any other
person.
6.3 Penalties
include imprisonment up to seven years.
7. Secret
Commissions Act 1910
7.1 This
Act states that an Agent (a term which includes elected members of a local
authority) must not give or receive gifts or inducements to do or not do things
in relation to the business of the Principal (being Council).
7.2 Agents
must not divert, obstruct or interfere with the proper business of the
Principal, and must not fail to use due diligence in conducting this proper
business with the intent to gain any gift or consideration for themselves or
any other person.
7.3 Agents
must make known any financial interest they hold in any contracts undertaken by
the Principal; this includes interests held by a spouse or partner, parent,
child or business partner of the Agent.
7.4 It
is an offence to produce false or incomplete receipts, invoices or other
accounting documents with an intent to deceive the Principal of any payments
that may have been made to the Agent.
7.5 It
is an offence for Agents to receive any secret reward for facilitating
particular contract procurement outcomes.
7.6 There
are also penalties for aiding and abetting any of the offences under this Act.
Penalties under this Act include imprisonment up to 7 years.
8. Financial
Markets Conduct Act 2013
8.1 This
Act essentially places elected members in the same position as company
directors whenever the Council offers financial products (such as an issue of
debt or equity securities).
8.2 Elected
members may be personally liable if:
8.2.1 Documents
that are registered under the Act such as a Product Disclosure Statement
contain false or misleading statements
8.2.2 Any
requirements under the Act are not met in relation to offers of financial
products
9. Health
and Safety at Work Act 2015
9.1 This
Act requires the “person conducting a business or undertaking” (PCBU)
(i.e. Council) to ensure, as far as is reasonably practicable, the safety of
workers and others who may be impacted by the work the business undertakes, and
allocate duties to those people who are in the best position to control risks
to health and safety as appropriate to their role in the workplace.
9.2 An
important duty under this Act is the duty of “Officers”, defined in
regard to councils (body corporate) as any person occupying a position in the
body that is comparable with that of a director of a company, and includes any
person occupying a position in relation to the business or undertaking that
allows that person to exercise significant influence over the management of the
business or undertaking.
9.3 Officers
have obligations of due diligence, which are:
9.3.1 to
acquire, and keep up-to-date, knowledge of work health and safety matters
9.3.2 to
gain an understanding of the nature of the operations of the business or
undertaking of the PCBU, and generally of the hazards and risks associated with
those operations
9.3.3 to
ensure that the PCBU has available for use, and uses, appropriate resources and
processes to eliminate or minimise risks to health and safety from work carried
out as part of the conduct of the business or undertaking
9.3.4 to
ensure that the PCBU has appropriate processes for receiving and considering
information regarding incidents, hazards, and risks and for responding in a
timely way to that information
9.3.5 to
ensure that the PCBU has, and implements, processes for complying with any duty
or obligation of the PCBU under this Act
9.3.6 to
verify the provision and use of the resources and processes referred to above.
9.4 The
duties of the Officers and of the PCBU are independent of each other. This
means if a PCBU has failed to meet its duty but the Officers exercised due
diligence then they would not be personally liable for the health and safety
failings.
9.5 Elected
members are defined as Officers under the Act. However elected members are
exempt from being prosecuted for a failure.
10. Privacy
Act 2020
10.1 The
Privacy Act 2020 outlines Principles that must be followed by any Agency (and
by association any representative of that Agency) in relation to personal
information.
10.2 These
Principles guide the purpose, source and manner of collecting personal
information, the storage and protection of personal information including
length of storage, the expectations in relation to accuracy of and corrections
to information held, and the limits on use and any disclosure of personal information.
10.3 The
Act also provides for complaints to be made to the Privacy Commissioner and
outlines how these will be addressed, should someone feel these Principles have
been breached.
10.4 As
representatives of Council as an Agency, members must abide by the expectations
of the Act in relation to any personal information they are privy to.
10.5 Council
has appointed a Privacy Officer as required under section 23 of the Act; this
is the Group Manager Strategy and Communications.
11. Local
Government (Pecuniary Interests Register) Amendment Act 2022
11.1 The
obligations under this recently enacted legislation will apply from November
2022.
11.2 Members
must declare a variety of types of interests under this Act, including funding
sources for international travel and gifts received.
11.3 The
obligations of this Act are extra to and do not replace those under the Local
Authorities (Members’ Interests) Act 1968.
11.4 A
register of interests must be held, and a summary of the register (to balance
transparency and privacy) made publicly available.
11.5 Council
has appointed a Registrar as required under the Act; this is the Manager
Governance and Support Services.
12. Conclusion
12.1 The
role of elected member is directly impacted by many pieces of legislation.
12.2 If Elected
Members have any questions or concerns in relation to legislation impacting
on the activities of Council and their role during their term of office
these should be discussed with the Chief Executive as soon as they arise.
Author: Pat
Dougherty, Chief Executive
Attachments
Nil
