Legal assistance for councillors and employees of local governments
To provide guidance to local governments about the provision of legal assistance and associated expenses for councillors and council employees.
Section 235 of the Local Government Act 2009 (LGA) provides that a local government administrator is not civilly liable for an act done under the LGA or the Local Government Electoral Act 2011 (LGEA), or omission made under the LGA or the LGEA, honestly and without negligence.
A local government administrator is a councillor, the chief executive officer, an authorised person, another local government employee or an interim administrator.
In such instances, the liability for actions performed in good faith by a council representative whilst performing duties of their role lies with the local government.
Under section 107 of the LGA, local governments are required to maintain both public liability insurance and professional indemnity insurance for their councils. Local governments are responsible for organising their own insurance and may choose an insurer of their choice when providing cover for their council.
Legal assistance available to councillors
Under section 250 of the Local Government Regulation 2012 (LGR), a local government is required to adopt a councillor expenses reimbursement policy to deal with the reimbursement of reasonable expenses and the provision of facilities to councillors in their roles as elected representatives.
Developing suitable policies
Local governments should have a transparent and accountable policy and procedure for providing legal assistance and associated costs for councillors and employees so that the community maintains confidence that public funds are being expended in an appropriate way. The Department of Infrastructure, Local Government and Planning (the department) acknowledges that some local governments may have these policies in place already.
Matters for consideration in developing an appropriate policy covering legal assistance and associated eligible expenses include:
- when it is appropriate to provide legal assistance to a council representative
- who is authorised to make the decision that financial support would be provided
- the limits or levels of assistance that are to be given, including costs to be covered
- the criteria for providing additional support and obligations on a council representative receiving assistance
- the circumstances in which approval for assistance may be revoked and repayment of costs sought, such as when it is found the councillor has acted dishonestly or negligently
- the process to procure legal assistance either internally within council or externally, particularly where a councillor requests legal advice of a general nature.
The department recommends that the policy covering legal assistance and associated eligible expenses for a councillor, be included within the councillor expenses reimbursement policy required under section 250 of the LGR.
Additionally, the department recommends that councils adopt a similar policy for council employees to cover circumstances where legal assistance is to be provided by the council.
Below is a link to a model policy produced by the Western Australian Government which is a useful guide when considering the development of the policies covering legal assistance and associated eligible expenses for councillors and employees.
Any further enquiries should be addressed to:
Mr Tim Dunne
Manager, Program Implementation and Review
Department of Infrastructure, Local Government and Planning
P: (07) 3452 6743