Practical considerations

Following the commencement of the COVID-19 Legislation Amendment (Emergency Measures) Act 2020 on 25 March, the Minister for Local Government who is responsible for administering the Local Government Act 1993 (the LG Act) has been granted significant powers to alter the functions and responsibilities of local councils in response to the ongoing Coronavirus pandemic. Most notably, the Minister has gained a time-limited power to postpone local council elections for a period of 12 months. The other amendments to the LG Act may also affect the manner in which council meetings are held, particularly in terms of whether such meetings are held in-person or open to the public.

Postponement of council elections

A new provision under section 318B of the LG Act has been introduced to expand the circumstances in which the Minister can postpone the elections of local councils. In accordance with the new section 318B(1)(a1), where, having regard to the COVID-19 pandemic, the Minister believes it is reasonable in the circumstances to order the postponement of a council election, that election may be postponed by order published in the Gazette. The Minister has already flagged her intention to exercise this power, although a formal order has not been made yet. On 25 March 2020, it was announced that the 126 council elections scheduled to be held in September 2020 will no longer proceed, with a new election date yet to be determined. The subsequent council elections will still proceed in September 2024, resulting in the next electoral term being shorter than the regular four years.

Practically, for local councils, this means that councillors already in office will remain in their roles during the interim ‘postponement period’. Councillors’ duties will end on a new election date, within 12 months from September 2020. Like councillors, those mayors elected under the popularly elected mayor system will also continue in their duties during the postponement period. For those councils however who select their mayor by a vote of its councillors, they must nevertheless hold a vote once the mayor’s term expires. For mayors elected by councillors in September 2018, this means that a new vote must still be held at the expiry of the mayor’s two-year term in September 2020.

Two other important practical considerations arise from the postponement of council elections. The Office of Local Government (OLG) warns that, if mayors elected by councillors are not re-elected, this may alter the composition of the board of the various Joint Organisations, which are comprised of groups of local councils around regional and rural NSW. The postponement will likewise impact the current and upcoming integrated planning and reporting (IPR) cycles, either by potentially extending or reducing the time within which goals and actions must be achieved by councils under the IPR framework. In response to this, the OLG is currently working to extend the current four-year IPR cycle by 12 months.

Changes to council meetings

As a result of the COVID-19 circumstances, the insertion of special provisions under the new section 747A of the LG Act facilitates flexibility in relation to the coordination of council meetings, in compliance with the Australian Government’s requirements for social distancing and contact minimisation. For the prescribed period during which the provision operates, any section of the LG Act that requires councils or particular people to meet in person will be satisfied if that meeting is held wholly or partially by using an audio visual link (for example, WebEx, Zoom or Skype), or in any other manner approved by the Minister, but only if audio visual links are not reasonably available.

In addition, where the LG Act requires that a meeting be open to members of the public, such a requirement will be deemed to have been fulfilled if a webcast of that meeting is made public or, if a webcast is not practicable in the circumstances, members of the public are informed of what occurred at the meeting by another manner approved by the Minister. These provisions aim to alleviate concerns councils may have about protecting the public from the risk of contracting COVID-19 (for example, by closing their council chambers to the public), whilst still ensuring that they are able to adhere to their obligations to conduct regular and transparent meetings of council.

Despite the introduction of these new provisions, where council meetings are disrupted or impractical  due to the effects of COVID-19, councils may instead choose to delegate certain functions under section 377 of the LG Act so that these functions are assigned to the council’s general manager or another authorised individual or body in council.

In practice, this could mean that some councils elect to delegate temporary ‘COVID-19 emergency powers’ to their general managers, to help facilitate the smooth running of council generally, particularly where decisions are required to be made about council services and the operation of council facilities in circumstances that continue to evolve on a day to day basis. By delegating these decision-making powers, and appropriately relaxing the expenditure limitations imposed on general managers (through well-drafted delegations), it is hoped that councils will be better equipped to adapt to a rapidly-unfolding public health crisis. A balance must be struck between the required autonomy of the individuals upon whom delegated power is conferred, and the checks and balances necessary to satisfy the public to whom councils are held accountable.

Despite this, it is important to note that not all functions of council can be delegated. Most notably, the setting of rates, charges or fees, the borrowing of money or the compulsory acquisition, purchase or sale of any land or property cannot be delegated. Due to this, for the time being councils in NSW are likely to operate through a mixture of delegations and virtual meetings, in the interests of minimising disruption for the foreseeable future.

For further information on any of the issues raised in this alert, please contact our team below.