Given the recent May 2022 Australian federal election and the looming November 2022 Victorian state election, the provisions around local government Councillors being candidates for state and federal elections have been topical. We thought it was timely to visit this issue and provide some guidance on what the law actually requires of a Councillor candidate.
Must a Councillor candidate always take leave of absence?
The short answer to this question is no. There is nothing in the Local Government Act 2020 (“the Act”) that would legally require a Councillor who stands for election to either the Victorian State Parliament or the Commonwealth Parliament to seek and take leave of absence from their Councillor role.
The statutory basis for Councillor leave of absence is to be found in section 35 of the Act which generally deals with the circumstances when a Councillor will cease to hold the office.
Section 35(1)(e) refers to a Councillor being absent from Council meetings for a period of 4 consecutive months without leave obtained from the Council as one of the disqualifying events. Accordingly, a Councillor obtaining leave to be absent from Council is possible and in fact section 35(4) makes it clear that Council must grant any such reasonable request for leave.
Nowhere in the Act is there any provision requiring a Councillor to seek leave of absence on becoming a candidate for election elsewhere. Rather, section 34(2)(a) provides that a person is not qualified to be a Councillor if they are a member of the Parliament of Victoria, the Parliament of the Commonwealth of Australia or the Parliament of any other state or territory of the Commonwealth. Accordingly, a Councillor candidate for election to an Australian Commonwealth or State Parliament can choose to continue to perform their role as a Councillor up to the moment they, if successful in the election, are sworn in and take their seat in the relevant Parliament.
Of course, as a practical matter, many Councillor candidates do in fact choose to take leave of absence from Council. There is good reasoning to support this approach which helps avoid the perception of conflict between the candidate’s personal interests in being successful in the election and the Councillor’s statutory duty to act in the best interests of the Council and the Council community.
Many councils have adopted policies that require a Councillor to seek leave of absence on becoming a candidate for parliamentary office.
Most councils make a distinction in these policies between Prospective and Nominated Candidates. A Prospective Candidate is a Councillor who has announced their intention to nominate as a candidate (either by direct announcement or indirectly by being endorsed as a candidate for election by a political party). A Nominated Candidate is one who has taken the formal steps required to be on the ballot paper; usually via lodging a nomination with the Victorian Electoral Commission or the Australian Electoral Commission. Typically, relevant Council policies encourage or even “require” a Councillor to notify the Chief Executive Officer and Council of their intended candidacy on becoming a Prospective Candidate and to seek leave of absence at least at the point they become a Nominated Candidate.
However, despite the use of language like “must” or “require”, we do not think such policies, even if included within a Council’s Governance Rules, could create a legally enforceable obligation upon the Councillor and we do not think therefore such policies would likely withstand challenge in a higher court. Accordingly, we do not think a Councillor candidate has any legal obligation to seek leave of absence.
Must a Councillor decline their Councillor allowance during a period of leave of absence?
A related question therefore arises both in the Councillor candidacy scenario and in other situations where a Councillor does choose to seek leave of absence from Council; being whether the Councillor remains entitled to receive a Councillor allowance during that period.
In our view, there is no requirement in the Local Government Act for a Councillor seeking leave of absence to also decline to receive their Councillor allowance during this period.
Section 39 of the Act deals with allowances for Mayors, Deputy Mayors and Councillors. It includes a provision making it clear that a Mayor or Deputy Mayor is not entitled to receive a Councillor allowance on top of a Mayoral or Deputy Mayoral allowance. Interestingly, however, the section makes no mention of a necessary suspension of allowances during a leave of absence period.
A Councillor can, of course, request to Council that he or she not be paid their Councillor allowance during a period of leave or at any other time. This would be consistent with section 39(5) which provides that a Councillor “may elect” to receive the entire allowance to which they are entitled, a specified part of that allowance or receive no allowance at all.
We might speculate here as to the legislature’s reasoning for not including a prohibition on the collection of Councillor allowances during a leave of absence period. One can envisage circumstances where a Councillor might maintain a significant level of engagement and community representation despite being on leave of absence owing to an inability to attend and/or participate in Council meetings, etc, for a particular period.
Can a Councillor participate in Council meetings or ballots during a leave of absence?
With many current Councillors having decided to seek leave of absence in the lead-up to the November 2022 Victorian State election, there has been some discussion as to whether a Councillor on leave of absence could participate in the Mayoral ballot; which for many councils is due to take place in November also.
Again, our view is that a Councillor on leave of absence could choose to participate in a Mayoral ballot or indeed attend and participate in any Council meeting despite the leave of absence.
It is important we think to recognise that Councillor leave of absence is not enforced absence but rather absence that has been requested by the Councillor in question and has been authorised or approved by the Council. It is not something akin to a temporary suspension that applies where, an arbiter makes a finding of misconduct and suspends a Councillor for a period of time in accordance with section 147.
We believe our view finds support in the provisions of section 25(2) which provides that “any Councillor is eligible for election or re-election to the office of Mayor”. That section is expressed as subject to section 167 which deals with determinations by a Councillor Conduct Panel: so clearly the legislature contemplated circumstances where a Councillor could not participate in a Mayoral election and in this case did not decide to prohibit a Councillor on leave of absence from doing so.
What are the key considerations for a Councillor candidate?
Notwithstanding our views above, we do think that Councillor candidates for parliamentary election need to consider carefully whether they can safely and diligently perform their role as Councillor and represent their community during their candidacy. Councillor candidates should be mindful of the application of the conflict of interest provisions of the Act including section 127, which deals with general conflicts – being conflicts arising because an impartial, fair-minded person would consider that the Councillor’s private interests could result in the Councillor acting in a manner contrary to their public duty. One can envisage numerous situations where a candidate for parliamentary office may find their private interest in maximising their chances of election could potentially cause them to breach their public duty as a Councillor.
Similarly, the misuse of position provisions in section 123 are of relevance with Councillors expressly prohibited from intentionally using their Councillor position to gain or attempt to gain an advantage for themselves. The use of Council supplied resources and facilities will be of particular relevance here.
Councillors considering parliamentary candidacy are encouraged to review these statutory provisions and seek legal advice where appropriate. Many Councillors will we think conclude that the better option is to seek leave of absence well before the commencement of campaigning in the parliamentary election in order to both avoid the risks of breaching conflict of interest and misuse of position provisions in the Act, but also to help preserve a sense of the Council being prepared to work cooperatively with whoever is elected to the parliamentary position. The Municipal Association of Victoria has also published some excellent guidelines for Councillors standing for state or federal elections which are to be found at this link Candidature of councillors in state or federal elections 2021 MAV Guidelines
