Part 4: Investigation and prosecution

Guidance for members of local authorities about the law on conflicts of interest.

4.1
Enforcement of the Act is by way of prosecution. The Auditor-General is the sole prosecuting authority.

Offences

4.2
There are two offences under the Act, as shown in Figure 1.

Figure 1
Offences under the Local Authorities (Members’ Interests) Act 1968

Section Offence Penalty on conviction
5 Continuing to act as a member after becoming disqualified from office, by reason of a breach of the contracting limit under section 3(1). A fine not exceeding $200.
7 Failing to observe the prohibition in section 6(1) against discussing or voting on a matter in which the member has a pecuniary interest. A fine not exceeding $100 and, if the conviction is not successfully appealed, automatic disqualification from office.

4.3
Proceedings must begin within two years of the offence being committed.

Investigation

4.4
We may investigate a possible offence either on receipt of a complaint or at our own discretion. If you are the subject of an investigation, you will be given full details of the complaint and an opportunity to respond to it.

4.5
However, we do not disclose the identity of a person who makes a complaint. This is consistent with the approach taken by all prosecuting agencies. It is important that members of the public feel free to provide information about possible offences, without fear of their identity being disclosed.

Decision to prosecute

4.6
We have a duty to begin proceedings if we consider the circumstances warrant it. This involves the exercise of discretion. The need even to consider prosecution is a matter of serious concern. However, in any particular situation we may form the view that, although an offence appears to have been committed, the circumstances do not warrant prosecution.

4.7
In exercising our discretion, we take account of:

  • the criteria usually considered by any prosecuting agency; and
  • the policy and objectives of the Act.

Communicating the results of our investigations

4.8
Any member of the public may complain or raise questions about your compliance with the Act. However, both the investigation and the final resolution of the matter are primarily between you and us.

4.9
If an investigation does not result in a decision to prosecute, our usual practice is to:

  • inform the complainant (if there is one) that we have completed our enquiries; and
  • convey our findings in writing to you.

4.10
You are then accountable to the public for your conduct.

4.11
However, in appropriate cases, we may also make a brief public statement about our investigation. We may also inform the authority of our findings.

4.12
The Auditor-General is not subject to the Official Information Act 1982.

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