In our article of December 2025, The 2024 Amendments to the Local Government Act: change is in the air for councillors, we looked at some of the effects of the Local Government Amendment Act 2024 (WA) (Act). In particular, we had a close look at some of the clauses under s 2.10 – Role of Councillors.
It was clear from these that Parliament now expects more and better from councillors.
This article takes a closer look at further legal responsibilities of councillors under the same section 2.10. Specifically, how the role of the individual councillor is linked to the role of council as a whole. This change emphasises the fact that the expectation on councillors is now more clearly defined and greater than ever.
One expression of that expectation can be found in the newly introduced s 2.10(1)(e) of the Act.
‘A councillor … acts consistently with section 2.7(3) to (5)…’
This links the role of councillor more tightly to the role of the council of a local government.
Under s 2.10(1)(e), a councillor is to act consistently with the Role of Council under ss 2.7(3) – (5) of the Act. These new and linked provisions put a new onus on councils and their councillors.
As a result of s 2.10(1)(e), councillors are to conduct themselves in a manner consistent with those new responsibilities of their council, as part of their own set of responsibilities.
Section 2.7(3) makes explicit the principle that ‘the council’s governing role is separate from the CEO’s executive role as described in section 5.41’.
There is no doubt that the reference to the CEO must necessarily also mean the administration that is supervised and managed by the CEO. The provision goes on to add the principle that ‘it is important that the council respects that separation’.
The word ‘respect’ is not defined in the Act. But the ordinary meaning of the word, in the context of rules and laws, is ‘to think it important to obey a rule or law’.
Every local government’s code of conduct already speaks to councillors not undertaking tasks of the administration or otherwise influencing the administration. These personal obligations support the idea of the separation of powers within a local government.
The requirement for separation of powers has now been elevated to the status of a legal responsibility in the Act. Accordingly, the principle of separation of powers at a local government level carries even more weight than if it were only implicit and acknowledged through codes of conduct (as has historically been the case).
Section 2.7(4) makes changes relating to decision-making. The topic is split into two parts.
Firstly, s 2.7(4)(a) makes it mandatory for councils to make their decisions ‘on the basis of evidence, on the merits and in accordance with the law’.
This wording takes us to the approach taken by courts and tribunals, including in the context of examining challenges to the decisions of public bodies, including local governments. The judicial function requires decisions to be made on the basis of evidence, merits and in accordance with the law.
Local governments have quasi-judicial functions (e.g. in the context of assessment of councillor conduct and making decisions in relation to applications the subject of statutory discretionary powers). Courts and tribunals oversee those functions by reference to whether councillors have acted in a ‘judge-like’ manner when performing those functions.
However, s 2.7(4) is not limited to the quasi-judicial decision-making function of councils. It is expressed to cover all of its decisions. This would cover, for example, the decisions that councils make when engaging in the recruitment, performance review and termination of their CEOs. Gone are the days when the fate of a CEO was at the mercy of ad hoc or subjective decisions of the council.
Section 2.7(4) combines with s 2.10(1)(e) and the model standards for CEO recruitment, performance and termination introduced by the 2021 amendments to the Act. Together they create a new landscape of evidence-based, objective decision making in relation to the CEO-council relationship.
Secondly, there is another new requirement under s 2.7(4)(b), which is ‘taking into account the local government’s finances and resources’. Councils can no longer disregard potential negative financial impacts of pet projects. Or the lack of resources, e.g. staff to get these started up and running. They are required by law to comply with minimum standards of fiscal responsibility. And councillors must not agitate for their council to adopt strategies and plans that are objectively financially irresponsible.
Under s 2.7(5), councils are now required to have regard to the need to support an organisational culture that ‘promotes the respectful and fair treatment’ of local government employees.
This brings local governments in line with the general law as well as legislation like the Fair Work Act 2009 (Cth), the Industrial Relations Act 1979 (WA) and the Work Health and Safety Act 2020 (WA). Amongst other things, the Work Health and Safety Act in effect, imposes workplace health and safety obligations on local governments as a whole, as well as on individual councillors.
Every now and then, the sector will hear stories of how a particular councillor or set of councillors develop a dislike of their CEO. Whether this is personal or regarding some element of the local government, this has sometimes translated into conduct that the law has recognised as bullying and harassment in the workplace.
Councillors now need to recognise that their own actions can put the council as a whole at risk of having bullying claims made against it and of offending the principle in s 2.7(5). The link to s 2.7(5) in s 2.10(1)(e) also serves to emphasise the responsibility of individual councillors not to engage in bullying behaviours. This is already a requirement under all local government codes of conduct.
These changes seek to bring more order to the thinking, policies and styles of communication used by councils and individual councillors. They signal the hope for an improved sector. It will be good for all councillors, CEOs and their respective administrations if these provisions result in more considered and responsible decision-making, and improved local government workplaces.
Managing Principal
Mob: 0421 302 541
