Revocation of the Emergency Declaration v the Notices Published by the Minister

Revocation of the Emergency Declaration v the Notices Published by the Minister

25 May 2022

As readers will now be aware, based upon the Emergency Declaration under the Emergency Management Act 2004 (the EM Act), made as a consequence of the public health emergency that COVID presented, a series of Notices were published by the Local Government Minister under section 302B of the Local Government Act 1999 (the LG Act).

The effect of the Notices was to suspend / vary certain provisions under the LG Act (and associated regulations) and the following Notices remain in effect:

  • Notice 4 – Annual Business Plans and Strategic Planning
  • Notice 5 (which revoked and replaced Notice 1) – Electronic Participation in Council Meetings
  • Notice 6 (which revoked and replaced Notice 2) – Public Access and Public Consultation

Whilst there is also a Notice 3, its operation is restricted to participation in council meetings for the District Council of Coober Pedy.

It is important for readers to be aware that there is a very clear and unambiguous distinction between the Emergency Declaration and the Directions made by the State Co-ordinator under the EM Act (regulating matters such as the manner in which persons participated in certain ‘activities’ including council meetings, including by way of distancing and density requirements, as well as the wearing of masks) and the Notices published by the LG Minister in the Gazette. The Notices have operated to vary or suspend certain provisions of the LG Act regarding certain obligations upon councils, such as participation in council meetings and public consultation requirements.

This distinction, as well as the current legal position between the Emergency Declaration, the Directions and the Notices, is explained below.

The Emergency Declaration and Directions

  • on Thursday 28 April 2022 the Governor General approved a further extension of the Emergency Declaration under the EM Act for a period of 28 days, to Friday 27 May 2022;
  • following which, the Emergency Management (Consolidated Measures) (COVID-19) Direction 2022 came into effect on 23 May 2022, consolidating a number of separate Directions;
  • at 12:25pm on Tuesday 24 May 2022 the State Co-ordinator revoked the Emergency Declaration;
  • also on Tuesday 24 May 2022, the South Australian Public Health (COVID-19) Amendment Act 2022 (No 1 of 2022) (the Amendment Act) came into operation;
  • Schedule 2 to the Amendment Act provides for transitional provisions, noting at clause 1 that a ‘relevant direction’ means a direction in force under the EM Act, on the cessation of the Emergency Declaration; and
  • clause 2 of Schedule 2 provides that on the cessation of the Emergency Declaration, a ‘relevant direction’ continues in force, but as a direction under section 90C of the South Australian Public Health Act 2011 (the SAPH Act).

In which case, the Directions in force at the time when the Emergency Declaration was revoked, being the Emergency Management (Consolidated Measures) (COVID-19) Direction 2022, continue to have effect, but now under the SAPH Act.

In relation to the expiry of the Directions, the newly inserted section 90E of the SAPH Act provides that the relevant Minister may, by notice in the Gazette, fix a day on which the Directions (or specified provisions thereof) will expire but, must fix a day on which section 90C and all Directions under that section will expire, being no later than 6 months after commencement of the Amendment Act. We await publication of a notice regarding any proposed expiry of the Directions and/or section 90C and the Directions.

 The Notices

Given the public health emergency, the LG Minister published a series of Notices in the Gazette, under section 302B of the LG Act.

The effect of 302B is that the LG Minister may, by notice in the Gazette, vary or suspend the operation of specified provisions of the LG Act where a relevant declaration is made in relation to a public health emergency and the Minister was satisfied the variation or suspension was reasonably necessary as a result. The Notices issued by the Minister did not specify an ‘operative’ period.

In which case, section 302B(d)(ii) of the LG Act provides the Notices are operative for the period commencing on the day that they are published in the Gazette and ending 28 days after the cessation of all relevant declarations relating to the public health emergency.

The Emergency Declaration was revoked by the State Co-ordinator on Tuesday 24 May 2022. The Notices (and hence, each of the varied/suspended provisions under the LG Act and any associated Regulations) will, therefore, cease to operate from 11.59pm on Tuesday 21 June 2022.

What does this mean for councils?

For the assistance of councils and by reference to the Notices (as well as the consequential amendments made to the Act as part of the broader Local Government Reform process), the following administrative practices will be required to be reinstated from Wednesday 22 June 2022.

Notice 5 (revoking Notice 1) – Electronic Participation in Council Meetings

  • council meetings will no longer be permitted to be facilitated by electronic means, either in whole (where all members participate electronically) or in part (where some members participate electronically and others attend ‘in person’). All Members will be required to be physically present at a council meeting, otherwise, they must be marked as absent or, if appropriate, as an apology and will not be recognised as being present;
  • if a council did not specify in its Code of Practice that the amendments to facilitate electronic participation in meetings were to lapse/end at the conclusion of the Emergency Declaration (and the operation of the Notices), it will be required to amend the same;
  • councils will no longer be required to make available a live stream of a council meeting to the public via a website determined by the CEO;
  • however, section 41 committee meetings can still continue to be held electronically (as they always could, prior to the Emergency Declaration), by way of operation of section 90(7a) of the LG Act, being a provision of a permissive nature that, subject to compliance with its requirements, supports committees meeting by telephone or other electronic means; and
  • Information and Briefing Sessions under section 90A of the LG Act can continue to be held electronically, not being ‘meetings’ for the purposes of the Act and the ‘Meeting Regulations’.

Notice 6 (revoking Notice 2) – Public Access and Public Consultation

  • councils will, again, be required to consider whether to consult with the public with respect to the closure of its principal office under section 45 of the LG Act;
  • the suspension of certain provisions under the LG Act pertaining to the mandatory requirements to publicly consult or to otherwise hold public meetings will be revoked, which will now require that a council:
    • publicly consult on any amendment to its Public Consultation Policy under section 50;
    • facilitate a public meeting or council meeting for annual business plan and budgetary processes with one hour set aside for consultation on the draft annual business plan under section 123;
    • consultation in respect of rating changes as per sections 151(5) and 156(14a) of the LG Act; and
    • reinstate a person’s entitlement to inspect the assessment record at the principal office under section 174.

Notice 4 – Annual Business Plans and Strategic Planning

  • this had provided assistance for councils by opportunity to delay the statutory timeframes surrounding the rates declaration, the annual business plan and the draft budget processes. However, councils will now be required to:
    • ensure that a comprehensive review of the strategic management plans are undertaken within 2 years after each general election of the council;
    • adopt the annual business plan and budget before 15 August for the financial year; and
    • must not, except in a case involving extraordinary administrative difficulty,  declare a general rate for a particular financial year after 15 August in that financial year.

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