Keep it open! New regulations for closing council meetings have commenced

On 12 October 2020, new regulations under the Local Government Act 2009 (Qld) (LGA) and the City of Brisbane Act 2010 (Qld) (CoB Act) commenced.  The Local Government Legislation (Integrity) Amendment Regulation 2020 (the New Regulation) makes various amendments in line with the changes to the LGA also commenced on 12 October 2020.

Of particular note, the New Regulation includes changes to the management of council meetings and restricts the ability of a council to close meetings to the public.  Currently, a local government meeting or committee meeting may close (by resolution) to discuss:

(a) the appointment, dismissal or discipline of employees;
(b) industrial matters affecting employees;
(c) the local government’s budget;
(d) rating concessions;
(e) contracts proposed to be made by it;
(f) starting or defending legal proceedings involving the local government;
(g) any action to be taken by the local government under the Planning Act, including deciding applications made to it under that Act; or
(h) other business for which a public discussion would be likely to prejudice the interests of the local government or someone else, or enable a person to gain a financial advantage.

Under the New Regulation, paragraphs (a) to (d) above remain the same, but:

• the ability to close to discuss legal matters has been clarified to include ‘legal advice obtained by the local government or legal proceedings involving the local government including, for example, legal proceedings that may be taken by or against the local government’;
• the broad power to close to consider ‘contracts proposed or made by’ the local government has been narrowed to ‘negotiations relating to a commercial matter involving the local government for which a public discussion would be likely to prejudice the interests of the local government.’  This is a significant narrowing, and would seem to only include the final step of contract negotiation, not (for example) consideration of tender applications prior to contractual negotiations;
• a new ground to close, ‘matters that may directly affect the health and safety of an individual or a group of individuals’ has been introduced; and
• the ground to close to consider any action taken by the local government under the Planning Act has been removed completely, but a new ground to close a meeting for negotiations relating to the taking of land by the local government under the Acquisition of Land Act has been included.

The changes introduced by the New Regulation also provide for additional requirements to the way council must handle meeting agendas and associated reports. This includes:

(a) requirements for agendas and associated reports to be published on council’s website by 5pm on the day following the day it is made available to councillors; and
(b) the publication of reports on council’s website as soon as practicable after they are made available to councillors during the relevant period for the meeting.

The key test for determining whether a report is subject to public disclosure is one of confidentiality, specifically, whether or not information in the report is confidential information.  This is one issue our Council clients are currently working through from a policy perspective, given most tender processes involve some level of disclosure of information which would be regarded, if not more, at the very least ‘commercially sensitive’.

It remains the case under the New Regulation, that the decisions made during Council meetings must be justified in meeting minutes where they are contrary to what was recommended by an adviser of the council (e.g. an employee) when concerning:

• entering into a contract with a value exceeding $200,000 (excl. GST); or
• deviating from a policy or standard approach of the council in handling the matter.

This provision is likely to become a more prevalent one, given the greater transparency now generally required around tender deliberations.

Councils we are working with are balancing some competing concerns, including the need to obtain critical information from tenderers to properly evaluate proposals and also the inherent concerns (competition law, privacy, intellectual property, etc.) which are associated with a more transparent model.

As such, we are currently advising a number of councils on the impacts of this New Regulation, including:

(a) proving guidance on the nature of the changes and legal issues;
(b) assisting councils with legal review and commentary on their policies and procedures and potential amendments to those in light of the New Regulation;
(c) advising on broader disclosure issues: such as confidentiality, intellectual property, probity and competition concerns; and
(d) conducting training and workshopping sessions with councils.

The intention of the New Regulation to reduce the grounds for closing meetings to promote transparency is clear, but the implications in practice will be interesting to see.

Special thanks to Patrick O’Brien, Lawyer, and Reuben Cher, Lawyer, for their assistance in putting this article together. 

This publication covers legal and technical issues in a general way. It is not designed to express opinions on specific cases. It is intended for information purposes only and should not be regarded as legal advice. Further advice should be obtained before taking action on any issue dealt with in this publication.