Council has directed its legal team to proceed with an appeal should the matter not be dealt with in a satisfactory manner.
Possible restriction to Councils’ ability to Appeal.
Recent changes to the Local Government Act, which direct Councils to enter into a caretaker mode after the close of nominations for the regular council election, may limit the window of opportunity for an appeal against an adverse finding in this Supreme Court case.
The Act bans Council from making decisions during the Caretaker period which, among other things, allow
“…a particular candidate or group of candidates to use council resources to their advantage.”
A decision to appeal a judicial finding relating to the Ombudsmans’ investigation into Charles Sturt Councillors, if it were taken by the Council during the caretaker period, could be argued as benefiting one group of candidates - that is, those candidates who were recontesting their positions.
POLICY REVIEW – LEGAL ADVICE
Charles Sturt Council will consider at its meeting Monday, 26/07/2010, the recommendation of the Policy Review Committee in relation to”Council Member Legal Advice Policy”. This policy contains information pertinent to the Ombudsman affair. Item 3.30 page 103 Appendix A continued, states:
Section 39 of the LG Act describes the level of legal protection afforded to Council members, viz:
(1) No civil liability attaches to a member of a council for an honest act or omission in the exercise, performance or discharge, of the member’s, or the council’s powers, functions or duties under tis or other Acts.
(2) A liability that would, but for this section, attach to a member of a council attaches instead to the council
It could be argued that the Ombudsmans inquiry by itself would not give rise to any civil liability on the part of individual Councilors.
The recommended policy goes on to say:
4. Policy
Council members will, in accordance with this policy, be provided access to legal advice. This will generally be facilitated by the Chief Executive in his normal administrative role. The Chief Executive may delegate this authority and responsibility, in accordance with this policy, to other Council officers.
Where legal advice has been sought in relation to a matter that is relevant to the performance or discharge of Council’s role, function and objectives, members will be provided access to the full text of the legal advice
Council in its in camera resolution of the 15th June,( Page 19. CL Minutes 15/06/10)
determined to:
(b) require the Ombudsman to permit those the subject of his
interviews to have legal representation at the interview and to
provide transcript to them of that interview
The question could be asked as to whether these requirements for legal aid are intended to be paid for by the Council, should the need arise.
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