Notice 2 — A Missed Opportunity to Provide Assistance Where it is Required

9 April 2020

The Minister has published the Public Access and Public Consultation Notice (No 2) 2020 (Notice 2), pursuant to section 302B of the Local Government Act 1999 (‘the Act’).

The ‘key’ variations to the Act made by Notice 2 are to address:

  • closure of the ‘principal office’ for the purpose of section 45 of the Act, without a ‘requirement’ for a council to issue a notice to itself under the South Australian Public Health Act 2011 (‘SAPH Act’), or otherwise to undertake public consultation (as long as certain conditions are met regarding access to documents, primarily through availability on the website); and
  • the suspension of certain provisions under the Act pertaining to the mandatory requirements to publicly consult or otherwise to hold public meetings.

These measures may be considered to have limited, practical, operation and provide little by way of relief and/or assistance for councils. Indeed, the variations and suspensions fall short of what councils have been requesting of the Minister for inclusion in this second Notice.

While it is, of course, pleasing that the Minister has put beyond doubt that it was a somewhat ‘farcical’ suggestion for a council to issue a notice to itself under the SAPH Act for the purposes of closing its ‘principal office’ (if satisfied, it is reasonably necessary as a result of the existing health emergency), it is, and has always been our advice, that this was a step that was not required – see our Alert on this point here. This appears to be too little too late in the scheme of developments in this emergency.

From the time that the emergency declarations were made in South Australia, a council’s principal office was not required to be open to members of the public, for the council to meet its obligations under the Act to provide for the ‘transaction of business’. The reality being that the ‘transaction of business’ in our society can readily be achieved through the provision of a range of online services, as well as making staff available to be contacted by telephone and email. Further, most, if not all, policies, procedures and registers are already accessible online.

Further, in so far as section 45(3) provides that the council should consult’ (our emphasis) with the community in accordance with its public consultation policy, in a public health emergency environment, with information and advice from the Federal and State Governments moving at such a rapid pace, the CEO’s over-riding obligations for the health, safety and welfare of the employees, elected members and members of the community under the Work, Health and Safety Act 2012, must (and do) take precedence, rendering the ‘should consult’ a secondary consideration at this time, in particular where the associated delay might operate to adversely impact these persons.

The variations to section 45 of the Act also make wide-ranging provisions allowing most documents that, under the Act, are available for inspection at the principal office (with specific mention of the elected member register of interests) and those where a council is required to provide a copy, to be provided via alternative means, provided that certain conditions are met. This is a unique and unusual approach which appears to be overly onerous in the circumstances.

Further, the variations include a provision which states, for the avoidance of doubt, that any provision of the LG Act requiring documents to be published or made available online is not affected by the Notice. This provision, of itself, raises the question as to why there would be express recognition of this possibility in varying or suspending statutory provisions, which should only occur with absolute clarity and certainty! In addition, these provisions are supplemented by a list of ‘Notes’ to further inform and clarify the intention and each of these variations. The complexity of the Notice is unnecessary in the circumstances, particularly given the legal position stated in our previous Alert as referenced above.

There are also consequential variations to requirements for public consultation, in respect of alterations to the public consultation policy, the requirement for public meeting or council meeting with one hour set aside for consultation on the draft annual business plan and consultation in respect of rating changes (as per sections 151(5) and 156(14a) of the Act). As is to be expected, this is aimed at avoiding public meetings and reliance upon website notifications. Whilst a reasonable objective in our current circumstances, as we observed in relation to Notice 1, the level of detail and prescription may be considered to not be necessary for the purpose of achieving the objective.

Notably, however, the most pressing issue that many councils have raised with us over the past weeks, is the opportunity to delay the statutory timeframes surrounding the rates declaration, the annual business plan and the draft budget processes. Notwithstanding that certain amendments have been made to vary the public consultation requirements in relation to these processes, it is critical that councils are provided with additional time to not only consider the effects of the public health emergency on the existing budgetary position, but also to evaluate and take into account the broader effect on residents and ratepayers, including their ability to meet rating obligations.

In the absence of this assistance and without a Notice, amending these statutory timeframes, councils are left, at this time, to take their ‘best guess’ at what are fundamental processes critical for the sustainable operation of the council into the 2020/2021 financial year.

We hope that if there is to be a Notice 3, it is available sooner rather than later and that it addresses rate declarations, the annual business plan and draft budgeting processes.

Again, in providing practical solutions and support for our clients, please find a link to a track changed version of the Act, incorporating the amendments made by both Notice 1 and Notice 2, for your assistance.

If you have any questions in relation to this Alert, please contact: