Before conducting a hearing
Under section 177A of the Local Government Act 2009 the tribunal may, without conducting a hearing of the complaint, order that all or part of the complaint be dismissed or struck out if it considers it to be:
- frivolous, vexatious or misconceived
- lacking in substance
- otherwise an abuse of process.
If the tribunal dismisses or strikes out all or part of a complaint it must given written notice to the local government's chief executive officer (if that person originally assessed the complaint), the Director-General of the Department of Local Government, Racing and Multicultural Affairs, the accused councillor and the person who made the complaint.
If the tribunal decides to hear the complaint it must:
- give the accused councillor written notice about the hearing and the alleged misconduct at least seven days before the hearing (section 178, Local Government Act 2009)
- also, where the complainant is also a councillor, require the complainant to appear before the tribunal and confirm the complaint (section 177A, Local Government Act 2009).
Hearing and deciding complaints
The tribunal must conduct its hearings in the way set out by Chapter 7, part 1 of the Local Government Act 2009.
In particular the tribunal must observe natural justice and act as quickly and informally as is consistent with a fair and proper consideration of the issues.
The tribunal may call witnesses, by giving them a written notice, to give evidence or to produce specific documents at a hearing.
However the tribunal may decide all or part of the hearing from the documents brought before the tribunal, without the parties or witnesses appearing, if the tribunal considers it appropriate or the parties agree (section 179, Local Government Act 2009).
The standard of proof in the hearing is the balance of probabilities.
The tribunal must keep a written record of the hearing, including all statements and reports.