Local Government Reform Minister Knoll’s Discussion Paper — Reform Area 4

Local Government Reform Minister Knoll’s Discussion Paper — Reform Area 4

20 September 2019

This Alert is the fifth and final in our series addressing the  Reforming Local Government In South Australia Discussion Paper, released by Minister Knoll (‘the Paper’).

The focus of this Alert is Reform Area 4: Simpler Regulation.

A summary of the Reform proposals in this Area, as prepared and published by the Department of Planning, Transport and Infrastructure, are included as an Attachment.

This Alert complements our related publications that were released over the past weeks, being:

to assist councils in considering and responding to the Paper.

The Paper and associated consultation process provides an exciting opportunity for meaningful reform to the Local Government Act 1999, (‘the Act’), which commenced operation in January 2000, almost 20 years ago now.

Responses to the Paper must be submitted to the Department by Friday, 1 November. At the end of the consultation process, each of the Reform Areas, and all submissions received, will be reviewed by the Government, leading to a Local Government Bill, proposed to be released in early 2020.

Reform Area 4: Simpler Regulation

This Reform Area aims to improve and streamline the legislative ‘rules’ and processes associated with council decision-making. The stated aim is to reduce unnecessary time and cost imposts on councils, businesses and the community.

While the Paper identifies areas that are in need of review and reform, including overly prescriptive public consultation obligations, costly and inefficient internal review processes, and outdated, unnecessarily complex, Register of Interest requirements, the proposed reforms are, generally, underwhelming. It is our position that they do not, (or do not adequately), address the identified areas of concern, let alone propose anything by way of progressive or ‘big picture’ thinking in this Reform Area.

Indeed, it appears that in some instances, the proposed reforms will see the introduction of further legislative restriction (contrary to the stated intent of the Reform Area). For example, the holding of informal gatherings, where it has been proposed to create a ‘new category’ of council ‘meeting’ and require councils to further report on matters pertaining to internal reviews under section 270 of the Act.

Against this background, we consider the ‘key’ reform proposals in this Area:

Public Consultation

It is an understatement to assert that the public consultation requirements of the Act are dated, and do not reflect current standards and expectations. The requirements were (largely) included in the Act at its commencement, at a time before mobile internet, smart phones, tablets, and the widespread use of social media. Indeed, at a time when postal services were considerably quicker and people read newspapers, in broadsheet form!

It is, therefore, appropriate and timely to reform this area.

The Paper proposes the removal of the existing public consultation requirements, to be replaced by a ‘flexible’ Engagement Charter similar in approach to the Community Engagement Charter (‘CEC’) in place under the Planning, Development and Infrastructure Act 2016, which can be accessed here. The CEC is premised on mandatory requirements, principles, performance outcomes (which elaborate on how to achieve each of the principles) and measuring performance.

A CEC-style Engagement Charter has a number of advantages, including the opportunity for drafting in contemporary language as a set of guidelines and objectives allowing more flexibility in public consultation (query ‘engagement’?) processes. However, it needs to be meaningful enough to provide a sound, but not overly prescriptive, basis upon which councils can individually develop their own Public Consultation Policies.

Councils should be free to develop policies that suit the individual needs of their local area, and which provide for meaningful engagement (and not just ‘consultation for consultation sake’), the ability to utilise technology and to tailor engagement to specific circumstances and community needs. The framework for this approach cannot be so prescriptive that it exposes council decision making to the risk of challenge.

In addition, while the Paper provides for a ‘review’ of the requirement to publish notices, it does not address the complete abolition of Gazette notices, as well as notices in newspapers. This would be a progressive step that is worthy of consideration in this Reform Area. In a time where digital records have, largely, rendered Gazette notices and newspaper placements obsolete, (and query whether the general public are even aware of the existence of the South Australia Government Gazette!), publishing notices in the Gazette and newspapers is an increasingly unnecessary expense and outdated approach.

The existing publication requirements could be effectively (and economically) satisfied by a requirement for publication of notices in prominent positions on council websites and/or the establishment of a dedicated local government notice website, for example, similar to yourSAy.

As with the proposed informal gathering reforms (which we address below), the area of public consultation is one in which the ‘less is more’ approach should be adopted. This would eliminate restrictive legislative provisions, to enable councils to more effectively utilise technological developments to tailor engagement specific to circumstances and community needs.

Taking this opportunity to adopt a clearer, more accessible (and, hence, effective) approach to public consultation would also set us apart from our interstate counterparts. By way of example, Victorian councils are subject to a similarly complex approach to public consultation, inclusive of an entitlement to ‘be heard’ by the Council, (or Committee) in relation to any submission made as part of a statutory consultation process. It comes as no surprise that these provisions are included under a similarly aged statutory instrument, the Local Government Act 1989 (Vic). Therefore, we have a one-off opportunity to consider and implement, real and progressive reform in these areas rather than simply ‘tinkering’ with outdated processes that continually fail to engage the community.

Internal Review of Council Decisions

The significance of the graph on page 72 of the Paper will not be lost on our readers.

It comes as no surprise that, whilst the number of councils which receive applications for an internal review pursuant to section 270 of the Act has remained relatively stable, there was a substantial hike in the numbers of applications received in the 2017/18 financial year., We expect, a similarly high number will be evidenced in figures for the 2018/19 financial year.

In our view, this can be directly attributed to the Ombudsman’s Report, Right of Review: An Audit of Local Government Internal Review of Council Decision Procedures, published in November 2016. The Report included recommendations such as highlighting a direct link on a council webpage to a description of the section 270 procedure, also to be linked to the council’s complaint handling policy. The report, which many of our readers will be familiar with, can be accessed here and our detailed summary of it can be found here.

While there is, of course, no quarrel with a council’s requirement to undertake a review in circumstances where there is a genuine complaint or grievance, the Paper recognises the substantial cost and resourcing impost for councils. In addition, it also recognises that the current system is open to exploitation by those who refuse to accept a reasonable decision.

However, having identified these issues, the Paper does little by way of proposed reform to address these issues.

It is to be noted that the section 270 internal review provisions are a distinctly South Australian creature of statute. While some interstate councils provide for an internal review ‘type’ process, they are not regulated by prescriptive legislative provisions. Most deal with the issue of a person aggrieved by a decision of the council under a complaints process, or by way of a statutory right of review or appeal provided for under a specific legislative regime (for example, under various iterations of the Development Act in relation to development matters).

While the Paper proposes the inclusion of a six (6) month statutory timeframe from the date of the relevant decision, it also provides for a council to extend this on a case-by-case basis. This proposed ‘extension of time’ provision will serve only to present further avenues of challenge to a council that makes such a decision which is not favourable to the applicant.

Genuine reform in this area should include a six (6) month statutory timeframe, following the expiration of which, (as is currently the case under the Development Act 1993 once the statutory timeframe within which to ‘challenge’ certain planning decisions has been passed), the applicant would be required to obtain an order from, for example, SACAT, that authorises an extension of time. Without this, a council should not have any obligation to entertain the application for review.

Similarly, while the Paper proposes the imposition of a $35 fee for applications, designed to deter vexatious complainants, modelled on the application fee under the Freedom of Information Act 1991(‘the FOI Act’), the reality is that such a low-level financial impost will not achieve this objective.

A more useful reform and one also ‘borrowed’ from the FOI Act, would be to enable councils to require an advance deposit where the cost of dealing with the application is likely to be excessive or time consuming, or is otherwise, an unreasonable impost on the council’s resources, coupled with the ability to refuse to deal with the application, if it would substantially and unreasonably divert the councils resources in the exercise of its functions. The ‘fall-back’ position, of course, is that the person continues to have access to the Ombudsman.

At the very least, such reforms would serve to ‘crystallise’ an applicant’s request for review, thereby substantially reducing the unnecessary and inappropriate depth and breadth of many applications that are submitted.

It has also proposed to amend section 270(4) of the Act to include a right to refuse an application where the subject is similar to a matter that has already been subject of, or is, under review by the council or other means. We recommend that it go further than this and the reasons for refusal also include 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.

While the stated objective in this Reform Area is ‘simpler regulation’, somewhat arbitrarily, the Paper proposes an additional, unnecessary, administrative requirement. That is, that the council’s annual reporting on applications for internal review, (as required by section 270(8) of the Act) also include recommendations to improve administrative practices. This reform proposal has been made in the absence of any justification. There has, to our knowledge, not been any reported, empirical, consideration of the 115 applications for internal review that were made in 2017/18 to suggest that administrative practices are required to be amended at all.

Indeed, in our extensive experience in this area, many applications fall within the category identified in the Paper, as an abuse of a statutory process by persons who refuse to accept a reasonable decision of the council.  The review processes that  have determined that a decision-making process has miscarried, could just as effectively  have  been dealt with efficiently and economically through a council’s complaint process, similar to our Victorian counterparts.

Informal Gatherings

It is proposed to establish a ‘new category’ of council ‘meeting’, in the nature of an ‘information’ or ‘briefing’ sessions.

By way of justification, the Paper reproduces the ‘perception’ argument, as fuelled by incorrect media assertions (never a good basis for legislation!) at the end of 2015 and early 2016, when the provisions were last amended. This was that informal gatherings were being used in a manner to make council decisions outside of formal council meetings.

This position, of course, entirely neglects the reality that elected members are increasingly required to be fully informed in relation to a broad range of projects. These carry obligations to read and consider Agendas that are comprised of hundreds of pages of documents and reports and will, from time to time, require further information and briefings from Administration and  consultants.  Accordingly,  a forum  is required  within  which  this  information  can  be delivered to members, outside of the strict meeting procedure processes, in order to facilitate discussions and impart knowledge.

The ability for elected members to come together in an informal manner to receive information and to engage in free and open discussion, is only to be encouraged in an environment where councils are required to make informed, transparent and accountable decisions. The idea of further regulation in this area is both unjustified and overly paternalistic.

The idea that this can simply be addressed by the creation of a ‘new category’ of council ‘meeting’ (i.e., by creating a new regulatory, and hence, administrative, burden) is naive and lacking appreciation of the reality of the situation. Relatedly, it is to be noted that the Paper is silent about the treatment of training sessions and social gatherings.

Effective reform in this area can only be achieved by ‘paring back’ the existing, unnecessarily, restrictive regulatory framework around the informal gathering processes. There is and has never been, any clear, cogent, evidence presented to justify the amendments made to the Act in March 2016 (and the subsequent, later, amendments to the Local Government (General) Regulations 2013). Media speculation and assertions are usually just that, borne of sensational objectives and lacking in corroborative evidence!

The amendments were unnecessary and are onerous and confusing. They have established two ‘classes’ of informal gathering, each entailing different procedural requirements and considerations and they apply to gatherings of any number of elected members, despite the fact that any actual or de facto decisions require a majority of a quorum to be achieved.

In our view, a simple, effective manner in which to deal with the asserted primary concern around the issue of informal gatherings, is to encourage an amendment to the provisions under the Act to reinstate the pre March 2016 position and to amend the Code of Conduct for Council Members to prohibit a group of members, the number of which would amount to a quorum for a council meeting, from engaging in conduct that results in purported decisions being made outside of a formal meeting.

Register of Interests

The Paper, sensibly, proposes that the primary and ordinary returns of elected members, which comprise the register of interests, be combined into a single, plain English document, to make returns easier to understand and complete. Clearly, a logical and long-overdue proposition.

This reform would also bring South Australia into line with other jurisdictions, for example, substantially replicating the requirements in Queensland under section 268 of the City of Brisbane Regulations 2012 and in New South Wales under section 440AAB of the Local Government Act 1993. Albeit, in NSW, the returns process is linked to the Code of Conduct, in a not too dissimilar manner to how we deal with Gifts and Benefits for elected members. In fact, ‘true’ reform in this area could contemplate a similar regime being adopted here.

However, a long-standing and vexing issue for councils and one that the Paper is, strangely, silent on, is the operation of section 67(1) of the Act, which places an obligation upon an elected member to notify the CEO of a change or variation in the information appearing in his/her return in the register. This section has the illogical and unusual effect of causing the ordinary return (a retrospective 12 month ‘snapshot’) to become a ‘living document’ in respect of time and events that postdate its return period! It has been likened to amending a tax return after it has been lodged for a particular financial year to include information that is relevant to a subsequent financial year. This provision should not be continued as part of any reform of these requirements.

The Paper also proposes that members’ returns be published on the council website, redacted to remove residential information. Given the accessibility of the returns at the principal office of the council, this is a step that does not truly ‘shift’ any proverbial goalposts. It is already being implemented in a ‘piecemeal’ fashion in any event, with recent amendments to the Act requiring that income sources, political, trade or professional associations and gifts received be published on the website. Otherwise, the register is a public document and moving from a right of inspection to an act of publication is hardly a monumental shift in the rights of the public

Whilst the information would be more readily accessible by all persons, including journalists, continuing effective statutory controls should prevent misuse or improper publication.

Community Land and Road Management

Presently, a proposal to revoke the community land status of council-owned land is approved or refused by the Minister. If approved, it is absolute (i.e. it is a ‘yes’ or ‘no’ response) and, if ‘yes’, the council may then choose whether or not to take the final step to revoke the classification. Caution is required in respect of the proposed reform to allow the Minister to approve an application for revocation, subject to conditions.

With respect to the proposal to reform the acquisition of private roads where the owner consents, or where they are deceased or otherwise cannot be located and to allow a council to retain or transfer the land to another party, section 210 of the Act already provides a mechanism for a council to declare a private road to be a public road and, thereby acquire the relevant land as a public road. Rather, what is required for effective reform in this area is as simple as an ability for councils to decide whether a private road is, or is not, acquired as a public road.

In relation to the proposals regarding permits and authorisations issued pursuant to sections 221 and 222 of the Act, relaxing the current, stringent, public consultation requirements in circumstances where the activity would result in any part of a road being fenced, enclosed or partitioned so as to impede the passage of traffic to a material degree, is to be welcomed. However, consideration is also required to be given to defining what ‘material degree’ is for these purposes, so that councils may understand when they are and are not, required to give effect to public consultation requirements.

Further, regarding the proposal that there ought to be a general ‘right of appeal’ for businesses against a decision to grant a permit or to issue an authorisation (including to refuse to grant the same or, to impose conditions), if this is to be introduced, it should be to SACAT, not to the Small Business Commissioner. The SACAT jurisdiction is better suited to understanding the broader public policy and administrative law principles relevant to these decisions and must be perceived to be a more objective forum for such disputes. In our opinion, it would be entirely inappropriate for the Small Business Commissioner to determine these matters, given the Commissioner’s role in advocating for small business which, necessarily, raises issues of perceived bias.

While certainly not wishing to open up further avenues for disaffected members of the community to erroneously make application for a review or appeal of a council decision, it is curious that the Paper has not given consideration to extending such a right to a genuinely affected member of the community.

Additional Proposals

The Paper invites councils to raise other issues warranting consideration under this Reform Area. This serves as a ‘catch-all’ for matters that require reform but may not have otherwise been identified in the Paper.

Accordingly, there is opportunity for councils to raise other issues that are considered to be problematic or that constrain effective and efficient decision-making above and beyond the issues identified in the Paper, or generally. This is an opportunity that must be taken. For further information regarding this Reform Area contact:

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