Electronic Meetings — Your questions answered — the first 24 hours!
1 April 2020
1. Can we have electronic meetings now the Notice is published?
No. Not straight away.
Just because the Minister has published the Notice, pursuant to section 302B of the Local Government Act 1999 (“the Act”), does not mean that electronic meetings automatically follow.
2. If not, what do we need to do to hold meetings electronically?
To hold an electronic meeting the council needs to amend its Code of Practice for Access to Meetings and Documents (“the Code”), as adopted under section 92 of the Act.
3. Do we need to call a physical (in person) meeting to amend the Code?
No.
A physical meeting is not required. Section 92(3a) of the Act (as per the Notice) provides that council members may meet by electronic means in a place open to the public to alter the Code (or to substitute a new one), even if the existing Code prevents or inhibits the council members from meeting by electronic means. This is further supported by section 86(8a) of the Act (again, as per the Notice) that provides council members can meet electronically to alter a procedure determined by the council to be observed at a meeting.
4. If we can have an electronic meeting to amend the Code, can the balance of the meeting also be electronic?
Yes.
5. Can the meeting to amend the Code be a special meeting?
Yes.
The Notice does not prescribe what type of meeting it must be. Therefore, it is open for a council to hold an ordinary or a special meeting for the purpose of considering and altering/substituting its Code.
6. Can a special meeting deal with other business?
Yes, but the other business needs to be specified on the agenda for the special meeting – in the usual manner under section 82(1) of the Act.
7. What does it now mean to have a meeting ‘open to the public’?
A meeting is taken to be open to the public if one or more council members participate in the meeting by electronic means, provided that a live stream of the meeting is made available on the council’s website and members of the public can hear the discussions between the council members. Alternatively, reasonable steps must be taken to make a live stream available and, if this cannot be achieved, make available to the public a recording of the meeting, to be placed on the council’s website as soon as reasonably practicable, ensuring that members of the public can hear all council members present at the meeting via the recording.
In the event that the above cannot be complied with, the steps taken to comply with the above must be published on the council website.
8. Is it necessary to obtain a council resolution to change the place of an ordinary meeting?
No.
If an ordinary meeting has been scheduled but the meeting cannot be held at the designated place as a result of a public health emergency, the Chief Executive Officer may appoint a different place for the ordinary meeting to take place. This power is conferred directly on the chief executive officer without there being any need to follow a rescission or amendment process.
9. Can a resumed meeting (having been adjourned) that was a physical meeting, then be conducted electronically?
Yes, provided that the council has amended or substituted its Code to provide for meetings to be held by electronic means in a place open to the public we recommend that, in such circumstances, the notice of the adjourned meeting is given (or is given afresh) detailing that it will proceed as an electronic meeting.
10. Does the Chief Executive Officer need to give public notice of council meetings?
Yes, but in a modified form. The operation of section 84(1a)(a) of the Act has been suspended. Accordingly, the chief executive officer does not need to place the notice of meeting and agenda on public display at each office of the council that is ordinarily open to the public. However, the notice and agenda must continue to be published on the council’s website as required by section 84(1a)(b) of the Act.
11. What process will Council need to follow to allow committee meetings to be held electronically?
The Notice does not include amendments to the provisions relating to Committees.
This means, without any prescribed regulations, section 90(7a) of the Act operates which requires the council (or, in default, the committee) to determine procedures pursuant to section 89 of the Act for the purpose of holding electronic meetings.
The council can, of course, determine when amending its Code, to provide that committee meetings may be held by telephone or electronic means, specifying the manner in which members of the public can hear the discussion between all committee members.
12. Can a member who has declared an actual or a perceived conflict of interest, who is participating in a meeting by electronic means, still determine to deal with that interest by excluding himself or herself from the meeting?
Yes.
Even though the Notice has not specifically amended the actual and perceived conflict of interest provisions under section 75 and 75A of the Act, it must reasonably and objectively be the case than any member who has declared an actual or perceived conflict of interest, for which they wish to exclude themselves from that portion of the meeting, can do so by ‘disconnecting’ the electronic means, as has been specifically provided for in dealing with a material conflict of interest under section 73 of the Act.
For further information and/or any assistance please contact Michael Kelledy on mkelledy@kelledyjones.com.au or 08 8113 7103 or; or Natasha Jones on njones@kelledyjones.com.au or 08 8113 7102 or; or Tracy Riddle on triddle@kelledyjones.com.au or 08 8113 7106 or.