Local Government Act 1989 (review, referral and original jurisdiction order)
This page provides general information and should not be considered as legal advice. Seek legal advice if you are unsure about your legal rights. Be aware that the law can change.
VCAT can review (reconsider) certain decisions made by a Councillor Conduct Panel, a Municipal Electoral Tribunal, or the Secretary to the Department of Planning and Community Development under the Local Government Act 1989.
VCAT hears certain conduct matters under the Act, either on referral by a Councillor Conduct Panel, on an application authorised by a Councillor Conduct Panel, or by application made by the Secretary.
VCAT also hears certain applications for relief from disqualification.
This information sheet deals with applications made to the Review and Regulation List of VCAT. If you want to apply to review a Council decision about differential rating, special rates or special charges you must apply to the Planning and Environment List.
Councillor Conduct Panel referrals, reviews and authorisations
An application to a Councillor Conduct Panel may be made by:
- the council following a resolution to make the application; or
- a councillor; or
- a group of councillors.
If you are a councillor whose conduct has been referred to a Councillor Conduct Panel you may, (whether before or during that hearing ,) apply to the Panel for referral of the matter to VCAT. The Panel must then refer matter to VCAT for determination. (s81D)
If you are a party (either an applicant or a respondent ) affected by a decision of a Councillor Conduct Panel you may be able to apply to VCAT to review the Panel’s decision except that you may not apply to review a panel’s decision to:
- dismiss an application for being frivolous, vexatious, misconceived or lacking in substance; or
- dismiss an application because there it had insufficient information to explain why the matter could not be resolved by internal dispute processes; or
- authorise or not to authorise an applicant to apply to VCAT on the grounds of serious misconduct of a councillor.
A Councillor Conduct Panel may authorise an applicant to make an application to VCAT if the Panel considers there are reasonable grounds on which VCAT may make a finding of serious misconduct against a Councillor (s81J(b))
Allegations of gross misconduct
If you are a councillor against whom the Secretary to the Department of Planning and Community Development has alleged gross misconduct, the matter will be heard by VCAT. Applications may only be made by the Secretary (s81E)
Disqualification period - If you are a person who has been convicted of an offence referred to in s.29(2) and disqualified, you may be able to apply to VCAT for relief from the disqualification after a period of 4 years from the date of conviction.
Municipal Electoral Tribunal decisions - If you are a person whose interests are affected by a decision of a Municipal Electoral Tribunal you may be able to apply to VCAT for review of that decision. Only a Presidential Member of VCAT may hear and determine the review.
Imposition of surcharge - If you are a party whose interests are affected by the imposition of a surcharge by the Secretary to the Department of Planning and Community Development, you may be able to apply to VCAT to review the decision.
Suspension during a general election
Applications and proceedings made under Division 1B (Councillor Conduct Panels) must be suspended during the election period for a general election.
Legislation that gives VCAT the power to hear these applications
- Section 81D Referral to VCAT by a Councillor Conduct
- Section 81E Allegations of gross misconduct (application by Secretary)
- Section 81J(1)(b) Application in respect of allegations of serous misconduct authorised by a Councillor Conduct Panel
- Section 81Q Review of a decision of a Councillor Conduct Panel
- Section 48 Review of a decision of a Municipal Electoral Panel
- Section 30 Relief from disqualification
- Section 240A(5) Review of imposition of surcharge
If you have a decision document, use it to help you complete the VCAT application form and attach a copy of the document to your application.
The time limits vary. If you seek a review of a decision, check the decision letter carefully.
If you are applying to review a decision of a municipal electoral tribunal, you must apply within 7 days of a copy of written reasons for decision being given to the parties.
If you are an applicant or respondent seeking to review a decision of a Councillor Conduct Panel you must make your application within 28 days of the panel giving a statement of its reasons.
If you are applying to review a decision of the Secretary to impose a surcharge, you must apply within 28 days or the later of:
- the date on which the decision was made, or
- if you have requested a statement of reasons:
- the day on which a statement of reasons was given, or
- the day on which you were informed that no reasons would be given.
There do not appear to be time limits in the Act for referrals or applications for orders in respect of serious misconduct or gross misconduct.
Which application form should I use?
- Section 81D - Application to Refer a Matter: Referral to VCAT by a Councillor Conduct Panel
- Section 81Q - Application for Review: Review of a decision of a Councillor Conduct Panel
- Section 81E - Application for Order: Allegations of gross misconduct (application by Secretary)
- Section 81J(1)(b) - Application for Order: Authorised application in respect of allegations of serious misconduct
- Section 30 - Application for Order: Relief from disqualification
- Section 240A(5) - Application for Review: Review of imposition of surcharge
What can VCAT order?
In the case of a referral or review relating to councillor conduct, VCAT may make any of the following findings:
- the councillor has engaged in conduct that constitutes misconduct, or
- serious misconduct, or
- gross misconduct.
On making a finding of misconduct VCAT may:
- reprimand the councillor
- order the councillor to make an apology in the form and manner determined by VCAT
- order the councillor to take leave of absence for a period not exceeding 2 months.
On making a finding of serious misconduct VCAT may:
- suspend the councillor for a period not exceeding 6 months;
- order that the councillor is ineligible to hold the office of mayor for a period not exceeding 4 years;
- order that the councillor is ineligible to chair a special committee for a period not exceeding 4 years.
On making a finding of gross misconduct VCAT may:
- disqualify the councillor for a period not exceeding 4 years and order that his or her office is vacated;
- suspend the councillor for a period not exceeding 6 months;
- order that the councillor is ineligible to hold the office of mayor for a period not exceeding 4 years
VCAT can also refer a matter to a Councillor Conduct Panel (whether or not it has made any of the above findings) if it considers that remedial action is required, or the Councillor Code of Conduct requires amendment
On a review, VCAT has all the powers of the original decision-maker as well as the additional powers given to VCAT by the relevant Act of Parliament and by the Victorian Civil and Administrative Tribunal Act 1998.
Unless the particular Act of Parliament gives it different powers, VCAT can:
- affirm the original decision, in which case it will stand,
- vary the decision,
- set aside the decision and substitute VCAT’s own decision;
- set aside the decision and remit (send back) the matter for reconsideration by the decision maker giving directions or recommendations,
- at any time in the proceeding invite the decision-maker to reconsider the decision
On an application for relief from disqualification VCAT may grant the application if VCAT is satisfied that the person is a fit and proper person to seek office as a Councillor having regard to:
- the nature of the offence that gave rise to the disqualification, and
- the conduct of the person since the disqualification, and
- any other relevant considerations.