Cessation of the Notices Published by the Minister — Your Questions Answered!
1 June 2022
Following the publication of our overview Alert last week, regarding the effect of the revocation of the Emergency Declaration and subsequent cessation of the Notices published by the Minister, we have received a number of questions about these complex statutory arrangements. Accordingly, we provide the following additional information to assist our readers:
Notice 5 (which revoked and replaced Notice 1) – Electronic Participation in Council Meetings
The starting point is that attendance by Members at ordinary (and special) council meetings by electronic means has only been permissible due to the operation, originally, of Notice 1, but later revoked and replaced by Notice 5.
Notice 5 operates to vary / suspend certain provisions under the Local Government Act 1999 (the Act) and the Local Government (Procedures at Meetings) Regulations 2013 (the Meeting Regulations) to facilitate council meetings by electronic means.
The effect of the revocation of the Emergency Declaration by the State Co-ordinator on Tuesday 24 May 2022 is that the Notices (and each of the varied/suspended provisions under the Act and any associated Regulations) will cease to operate from 11.59pm on Tuesday 21 June 2022.
The practical consequence of this is that the Act, and the Meetings Regulations, will, again, operate to require:
- that council meetings are conducted in a place open to the public; and
- Members may only participate in a council meeting in person.
In this context, we have been asked various questions about how the cessation of Notice 5 will impact upon:
- staff or consultants attending at council meetings;
- public attendance at council meetings;
- deputations;
- information and briefing sessions held under section 90A of the Act; and
- the conduct of section 41 Committee meetings.
We confirm as follows;
Attendance of staff and consultants
The Act does not prescribe the manner by which council staff (or consultants or legal advisors), who may be invited to attend at a council meeting, must attend.
That is, there is nothing under the Act or the Meetings Regulations to restrict such attendance to ‘in person’ only, as opposed to attendance by electronic means.
Therefore, it will remain permissible for such attendances to be facilitated by electronic means.
Whilst not legally necessary, a council can give consideration to making express provision for electronic attendances by staff and consultants in its Code of Practice for Meeting Procedures.
Public attendance at council meetings
Upon the cessation of Notice 5, there will no longer be a statutory obligation for a CEO to make available to the public a live stream of the council meeting on a website.
However, prior to the publication of Notice 5, some councils chose, on a discretionary basis, to make available such access. In which case, there is no statutory prohibition on a council maintaining this policy position (or to adopt such a position moving forward).
Of course, upon cessation of Notice 5, the public will be required to attend at a council meeting in person, for those councils which do not choose to continue to make available a live stream.
Deputations at council meetings
Conversely, Notice 5 varies the definition under regulation 3 of the Meeting Regulations to expressly provide that a reference to ‘appear personally’ for the purposes of making a deputation, includes to appear by electronic means.
Upon cessation of the Notice, this variation ceases to operate and, by reference to the definition of ‘deputation’ under regulation 3(1) of the Meeting Regulations, a person(s) making a deputation to a council in accordance with regulation 11 must appear personally.
Regulation 11 is not capable of variation pursuant to regulation 6 of the Meeting Regulations.
Accordingly, from 11:59pm on 21 June 2022, a deputation cannot be made by electronic means.
Information & briefing sessions and section 41 committee meetings
There was never an impediment to holding a (now repealed) Informal Gathering electronically. By very definition, such gatherings were not ‘meetings’ caught by the prescriptive administrative provisions of the Act and the Meeting Regulations.
Prior to the publication of the Minster’s Notices, section 90(7a) of the Act also permitted, so long as the prescribed conditions had been met, that a section 41 committee could meet electronically.
Section 90A of the Act recently commenced operation in accordance with the staged implementation of the Statutes Amendments (Local Government Review) Act 2021. Concurrently, the provisions dealing with ‘informal gatherings’ were revoked.
On the cessation of Notice 5, section 90A of the Act will continue in operation, as a statutory provision, not being a provision that has been amended or varied by Notice 5.
In which case, the cessation of the Notice 5 will not impact the manner in which a council may conduct an information or briefing session, or a section 41 committee meeting, including by electronic means.
In fact, section 90A(6)(a) of the Act expressly provides that section 90(7a) of the Act will apply, such that the information or briefing session will be taken to be conducted in a place open to the public, even if one (1) or more members participate in the meeting by telephone or other electronic means, in accordance with any procedures prescribed by the council (being the provision pertaining to the electronic facilitation of section 41 committee meetings).
On cessation of Notice 5, where a council proposes to continue to conduct information or briefing sessions (or its section 41 committee meetings) by electronic means, it will be necessary for the council to:
- determine the procedures for the purposes of section 90(7a); and
- establish a physical location, or electronic means, whereby members of the public can hear/observe any such information or briefing session or meeting that is open to the public, including where all Members are attending electronically.
If you have any questions in relation to this Alert, please contact:
- Tracy Riddle on 08 8113 7106 or triddle@kelledyjones.com.au;
- Michael Kelledy on 08 8113 7103 or mkelledy@kelledyjones.com.au;
- Natasha Jones on 08 8113 7102 or njones@kelledyjones.com.au; or
- Cimon Burke on 08 8113 7105 or cburke@kelledyjones.com.au.