Internal Review of Council Actions — a missed opportunity to limit unnecessary public expenditure

9 December 2021

The next snapshot Alert in our series relating to the progressive implementation of the Local Government Reforms, is the amendments to the internal review of council actions under section 270 of Local Government Act 1999 (the Act).

Readers may recall these fell for consideration under Reform Area 4: Simpler Regulation, as part of the Reforming Local Government In South Australia Discussion Paper (the Paper) back in August 2019.

Whilst the Paper identified the inefficiencies in the internal review processes, the reforms that have been made are underwhelming, to say the least.

Internal Review of a Council Decision

It is well understood that there has been a substantial increase in the number of applications received by councils over the past five (5) years for an internal review of a council decision. In our view, this is, in large part, attributable to the Ombudsman’s Report, Right of Review: An Audit of Local Government Internal Review of Council Decision Procedures, as published in November 2016. The Report, which many of our readers will be familiar with, can be accessed here.

There has also been a noticeable ‘trend’ of the Ombudsman’s Office referring complainants back to the council that they complain about, to request an internal review of a council decision under section 270 of the Act (or, indeed, effectively ‘requiring’ a council to undertake the same) before the Ombudsman will consider the matter further. All of which has been predicated on the basis that the Ombudsman’s Office is the avenue ‘of last resort’.

While there is, of course, the requirement to undertake a review in circumstances where there is a genuine complaint or grievance, the Paper had recognised the substantial cost and resourcing impost for councils, as well as the fact that the current system was (but still remains) open to exploitation by those who refuse to accept a reasonable decision. However, having identified these matters of concern, the reform proposals do not really address the issues.

The Reform Amendments

The inclusion of section 270(2a) in the Act, prescribes a six (6) month statutory timeframe for a request for a review of a decision, being six months from the date of the relevant decision. However, it, expectedly, also provides for a council to extend this on a case-by-case basis. This ‘extension of time’ provision will serve only to present further avenues of challenge to a council decision which is not favourable to the applicant.

Genuine reform in this area ought to have included the six (6) month statutory timeframe, following the expiration of which, the applicant would be required to apply for an authorisation for an extension of time. The South Australian Civil and Administrative Tribunal is a body that is well placed as the appropriate jurisdiction to hear and determine such applications. Without this, a council should not have had any obligation to entertain an application for review.

The reforms also provide that an application for review must be accompanied by a ‘prescribed fee’. The amount of $20 has been prescribed with effect from 10 November 2021, by way of Gazette Notice published on 16 September 2021. This is hardly a fee to deter vexatious complainants.  The reality is that such a low financial impost will not achieve the policy objective.

A more useful reform, one ‘borrowed’ from the Freedom of Information Act 1991 regime, would have been to enable councils to require an advance deposit where the cost of dealing with the application would, likely, be excessive or time consuming or otherwise, an unreasonable impost on the council’s resources, coupled with the ability to refuse to deal with any application that will substantially and unreasonably divert the councils resources. The ‘fall-back’ position, of course, being that the person continues to have access to the Ombudsman.

In the receipt and assessment of an application for an internal review, there has been the inclusion of the additional ‘limb’ under section 270(4) of the Act, which specifies that the council may refuse to deal with the subject-matter of an application that has been, or is already, the subject of a review by the council, or an investigation, inquiry or review by another authority.

However, it has always been our position that overriding public policy considerations, not the least of which includes the obligation to be aware of the impact upon limited public funds, provides a justifiable basis for a council to decline to deal with a request for a review. In which case, the amendments ought to have extended further and the reasons for refusal included where:

  • the application does not justify undertaking a review; or
  • there is other good reason why a review should not be undertaken in respect of the decision.

It would also have been useful for a definition of ‘frivolous or vexatious’ to be included for the purposes of section 270(4)(b). As this has not occurred, our advice remains, for reasons of clarity and to support any decision made by a council in this respect, that these terms be defined in the councils policies and procedures under section 270 of the Act.

In terms of excluding certain decisions from review, there is now an inclusion at section 270(4a) of the Act, that a council’s policies and procedures must not provide for a review of a decision to refuse to deal with, or to take no further action, under the (still to be commenced) Member Behaviour provisions under Chapter 13, Part 1A of the Act, by a person dissatisfied with the decision, or in relation to a recommendation of the Ombudsman under the Member Integrity provisions at Part 1 of the same.

Finally, the council’s policies, practices and procedures under section 270 must be consistent with any requirement specified by regulation. At this time, there are no such prescribed matters. However this provision does ‘open the door’ to additional regulatory oversight in the receipt and management of requests for review in the future.

Conclusion

Whilst the objective in this Reform Area was stated to be ‘simpler regulation’, in our extensive experience in this area, many applications received by councils fall within the category previously identified under the Paper as an abuse of a statutory process by persons who refuse to accept a reasonable decision of the council.

However, the amendments made to section 270 of the Act, will do little to curb the increasing number of requests being received by councils, with correspondingly little by way of assistance provided for councils to decline to deal with a request for a review.

If you have any questions about this, or any of our previous Alerts, please contact:

Michael Kelledy on 08 8113 7103 or mkelledy@kelledyjones.com.au;

Natasha Jones on 08 8113 7102 or njones@kelledyjones.com.au; or

Tracy Riddle on 08 8113 7106 or triddle@kelledyjones.com.au