Local Government Reform — A Different Message

29 September 2021

As our readers are, by now, fully aware, the amendments being made to the Local Government Act 1999 (the Act) by the Statutes Amendment (Local Government Review) Act 2021 are being introduced on a staged basis. The first tranche of amendments commenced on 20 September 2021. The second is scheduled for November 2021.

Whilst there is an abundance of information (and resources), available to you regarding the amendments, in particular by recital of the provisions, it is our view, that there is a distinct lack of ‘plain English’, simple to understand and practical overview information circulating in the sector to assist you.

That is, information that is easy to understand and digest and which can be implemented by you ‘right now’, particularly given the ever changing legislative landscape in South Australia. As one council client put it last week, ‘I feel like I’m drowning in legislation’.

We want you to know that we have heard that message and, consistent with our commitment to provide practical, timely and, most importantly, accurate information and advice, we will, over the next few weeks, publish a series of ‘snapshot’ Alerts setting out our analysis of the substantive reform proposals that have commenced under the Act, which include:

• Information or Briefing Sessions
• Leave of absence – Members contesting elections
• Amendments to the roles of Principal Member and other Members of Council
• CEO Remuneration

Given the immediacy of the issue, our first Alert in this series, provides clarity on the repeal of the former Informal Gathering and Discussion provisions and the operation of the Information or Briefing Session provisions, as inserted by the new section 90A under the Act.

Information or Briefing Sessions –  new and improved Informal Gatherings and Discussions, or just increased statutory oversight?

One of the more significant amendments, as Gazetted on 20 September 2021, is the commencement of section 90A of the Act, to create Information or Briefing Sessions (Session(s)). This is concurrent with the repeal of section 90(8) which dealt with Informal Gatherings and Discussions.

This is what you need to know:

• the detailed regulations relating to ‘designated informal gatherings’ are ‘no more’! With them, the requirement for a council to have an Informal Gathering Policy has been repealed. If, however, a council wishes to retain a policy, it may do so as a matter of discretion, but it must not conflict with the new provisions;
• a council (by resolution) or the CEO (by determination) may arrange for the holding of a Session for the purposes of providing ‘information or a briefing to attendees’;
• where the council or the CEO make such arrangements, it is clarified that a Session occurs if more than one (1) Member of the council (or a committee) has been invited to attend or be involved (as opposed to the former provisions which provided that ‘members of the council’ were to be invited);
• therefore, the threshold under which a Session will occur has been substantially reduced to capture any Session to which two (2) or more Members are invited by the council or the CEO, to attend or be involved;
• it is important to note the term ‘invited to attend or be involved’, the effect of which is that actual attendance is not required to ‘trigger’ a Session – the invitation to two (2) or more Members is sufficient;
• it is still prohibited to deal with a matter at a Session in a way as to obtain, or to effectively obtain, a decision, outside of a formal council (or committee) meeting;
• there is no mandate that all Sessions be open to the public (i.e. as there is at section 90(1) of the Act for all formal council and committee meetings). Therefore, only those Sessions that the Act requires to be open to the public are subject to that requirement – otherwise it is a matter of discretion for the council or CEO;
• a Session must be open to the public where it involves a matter that is, or is intended to be, on the Agenda for a formal meeting. However, these Sessions can also be closed if one of the confidentiality provisions under section 90(3) of the Act is available. This is achieved by the council, or the CEO ‘ordering’ the closure – noting that under the former provisions, it was a declaration and not an order (see further below);
• if an ‘order’ is made to close a Session, the council or the CEO (as the case may be) must, as soon as reasonably practicable, make a record of the grounds on which the order is made, the basis on which the matter to be discussed falls within one of the section 90(3) grounds and, if required by that consideration, why considering or discussing the matter in public would be contrary to the public interest;
• a Session is also considered to be open to the public, where one or more Members participate by telephone or other electronic means, in accordance with council procedures;
• there is (currently) no requirement to publish information before holding a Session. However, the CEO has obligations to publish certain matters on the council website after the session, including the place, date and time, the matter discussed, and whether it was open to the public, or not;
• while ‘a prescribed matter’ cannot be dealt with at a Session, currently, there are no such matters prescribed under the Act, or the regulations;
• in addressing a previously identified shortcoming under the repealed provisions, section 90A(6) of the Act provides that if a Session is closed to the public, sections 90(5) and (6) of the Act apply, being the prohibition on persons remaining in the room when a confidentiality order is in force;
• in which case, whilst not specifically provided for by the Act or the regulations, we recommend that, in addition to the information that must be recorded on the closure of a Session, the names of any persons permitted to be in the room by the council or the CEO should also be maintained;
• the prohibition against obstructing meetings at section 95 of the Act, now applies to a Session, as does the Ombudsman’s jurisdiction to determine whether the council (or the CEO) ‘unreasonably’ excluded the public from the session under section 94 of the Act;
• the Council or the CEO having the power to ‘order’ that the Session be closed to the public will need to consider other ramifications such as:

• • under section 62(4a) of the Act, the obligations for Members to not disclose information or a document to which an order ‘of the council’ is in effect under section 90; and

• • for Members who are not invited to attend or be involved in the Session, their ‘entitlement’ to be present; and

• • in circumstances where it is closed by order of the CEO, this is not an order of the council – so whilst section 62(4a) may not apply, Part 3 of the Code of Conduct for Council Members will;
• the former ‘examples’ that were included in the Informal Gathering and Discussion provisions, to assist in determining whether a such a gathering or discussion fell outside of the ‘designated’ category, have not been replicated, indeed, there is an absence of any examples. That is, the position is now one of ‘all in’;
• accordingly, the new provisions apply in any circumstance where the council (by resolution) or the CEO (by determination) arranges for the holding of a Session, to which more than one (1) Member of the council (or committee) is invited for the ‘purposes of providing information or a briefing to attendees’ and the starting position for which is that the Session does not have to be open to the public unless it is dealing with a matter that is or is intended to be an agenda item for a formal meeting;
• in which case, by way of a real example, any gathering that a CEO might arrange between the Principal Member and Committee Chairs (being Elected Member Chairs), as an agenda preparation or an agenda discussion, will be a ‘Session’ that is required to be public;
• conversely, there are many information workshops or training sessions that will not be required to be held in public because they do not deal with matters that are or may be on an agenda for a formal meeting – but this does not prevent such being held in public as a matter of discretion.

Considering the above, if your council has not already done so, it should immediately determine the relevance of its existing policy but, in the meantime, stop holding Informal Gatherings and Discussions in accordance with the policy.

If your council does intend to have a policy for the holding of Information or Briefing Sessions, this can be implemented as a discretion but subject to the warning above.

For further information contact:

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

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

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

Cimon Burke on 08 8113 7105 or cburke@kelledyjones.com.au.