Minister’s Notice No.1 — Electronic Participation in Council Meetings

31 March 2020

The Minister has, in accordance with the amendment to section 302 of the Local Government Act 1999 (‘the Act’) published the first Notice (as above) consequent upon the SA Public Health Act 2011 and the Emergency Management Act 2004 emergency declarations. This Notice is limited to the variation/suspension of the Act and the Local Government (Procedures at Meetings) Regulations 2013 for the purpose of facilitating ‘electronic’ Council meetings.

In our view, these variations/suspensions are more intricate than required to achieve the apparent objectives of the Notice. Nevertheless, it appears that the first task is for councils to vary their codes of practice for access to meetings and documents to enable electronic meetings to take place.

Whilst not expressly stated, a holistic reading of the provisions demonstrates that an electronic meeting may only occur after the council’s code of practice for access to meetings and documents has been varied to accommodate the matters addressed in the Notice. This means that councils are, currently, unable to move straight to electronic meetings, except for the purposes of amending the code of practice to permit and facilitate electronic meetings.

It is, therefore, important to note that the council can meet electronically to amend its code of practice but not otherwise. Thereafter, electronic meetings, in accordance with the Notice and the council’s amended code of practice, may be held.

An electronic meeting is one that is held by means which include telephone, computer or other electronic device used for communication.

The key aspects of the Notice for councils to be familiar with are –

  •  an elected member with a material conflict of interest is required to leave the meeting physically or by disconnecting their electronic communication means so they cannot view or hear any discussion or voting and must not view or listen to it by way of any live stream or recording of the meeting. The existing exemptions as set out at section 74 of the Act, continue to apply;
  • the  terms  ‘connected  to’,  ‘disconnecting  electronic  means’  and  ‘live  stream’  are defined;
  • there are no changes to the actual and perceived conflict of interest provisions of the Act, giving rise to considerations for members, participating by electronic means, who may wish to deal with such an interest by way of ‘disconnecting’;
  •  if a meeting is unable to proceed at the place appointed for the meeting to occur, the CEO may appoint an alternative place for the holding of the meeting and this includes an electronic place, such as a virtual meeting room;
  • the CEO’s electronic signature is sufficient for the notice of meeting – the requirements to place a copy of it at each council office has been suspended;
  • the notice of meeting and agenda must continue to be published on the website until the meeting has been completed – and the website is also the place where copy documents or reports for the meeting are to be placed;
  • the quorum provisions are altered to recognise that participation in a meeting by electronic means amounts to being present at the meeting – provided that the member can hear and be heard by all other members present and can be heard by the minute taker. Importantly, the quorum calculation will include any member present by way of electronic means;
  • provision is made for a meeting by electronic means to occur to alter any procedure of the council for the purposes of facilitating the holding of meetings by electronic means;
  • a meeting by electronic means is taken to satisfy section 90(1) of the Act as being conducted in a place open to the public, where one (1) or more members participate in the meeting electronically, provided that the CEO (or nominee) ensures a live stream to the public via a website determined by the CEO and all members of the public are able to hear – and, where reasonable steps have been taken to achieve these objectives but the live stream is not available, to make publicly available a recording of the meeting;
  • where the CEO (or nominee) is unable to comply with the above, the steps taken in seeking to comply must be published on the website;
  • the live stream may be disconnected where the meeting moves into confidence under section 90(2) and (3) of the Act;
  • the council’s code of practice for access to meetings and documents must be amended to address the above matters; and
  • in terms of meeting procedures under the ‘Meeting Regulations’, the key changes are:
    • leave  of  the meeting  requires  a  show  of  hands  or,  where  a  member  is participating electronically, a verbal indication of their vote;
    • the presiding member may initial/sign the minutes either in hard copy or electronically;
    • the minutes must reflect whether attendance was physical (in person) or by audio-visual or audio link or telephone;
    • the requirement for a member to be in his/her seat to vote may be varied and is to encapsulate a member who is disconnected and does not, in any event, apply to a member participating electronically in accordance with procedures determined by the council; and
    • in respect of a division, any member participating electronically, is to provide a verbal indication of whether their vote is in the affirmative or the negative.

In addition, there is no mandate about meetings being either/or – that is, either in person or electronic. The Notice is permissive of meetings being a blend of the two so members can, if they choose, participate in a meeting either physically or electronically.

Practically, the ability of a council to implement ‘electronic’ Council meetings, will be heavily reliant on upon facilities available to both the council, as well as elected members who may wish to participate in the meeting electronically. The issues of reliability of technology are likely to be exacerbated for regional councils.

The Notice is silent with regards to facilitating ‘electronic’ meetings of council committees. Those matters still fall for consideration under sections 89 and 90(7a) of the Act, which remain unchanged.

For further information and/or any assistance with amendments to your code of practice, please contact:

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

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

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