Australia: Advice to councils regarding council meetings and COVID-19

In light of the current restrictions being placed by the Government in an attempt to contain the spread of the Coronavirus (COVID-19), we are being asked about the obligations and responsibilities of council when conducting its council meetings.

All councils are no doubt aware legislation was speedily passed through Parliament last week that aims to ensure that South Australian councils can continue to operate effectively throughout the coronavirus public health emergency. The Local Government (Public Health Emergency) Amendment Act 2020 (the Amendment Act) amends the Local Government Act 1999 (LG Act) to allow the Minister to make a notice to be published in the Gazette suspending or varying the operation of specified provisions of the LG Act during a public health emergency. This will allow councils to continue to operate and make critical decisions by providing flexibility without breaching their legislative requirements.

The impact of COVID-19 has, understandably, led some council's to consider their obligations and responsibilities in respect of council meetings, and potentially consider whether council meetings can be held, at least in the immediate future. For example, there is the real possibility that a majority of councillors are either unable or unwilling to attend the council meeting because of COVID-19. The Amendment Act was rapidly passed through Parliament on the back of councils raising these concerns and the realisation that the ever increasing public health measures being imposed by State and Federal authorities may prevent council meetings from achieving a quorum and therefore preventing critical decisions being made.

Under the LG Act council members are to attend ordinary and special meetings of council in person. Participating in council meetings via electronic means has not been available, unlike council committees and subsidiaries.

So when can these powers be used?

The Minister will only have the power to make a notice when a public health emergency has been declared under section 87 of the South Australian Public Health Act 2011.

While a notice may specify a period for which it is in effect, it is important to note that all notices cease to have effect 28 days after all declarations relating to the emergency have ceased. A notice published in the Gazette by the Minister will not remain in place indefinitely, or until proactively revoked. It will not be possible for a notice to have any longer-term impacts on the operation of the LG Act.

Other important safeguards require that notices may be disallowed by Parliament in accordance with the Subordinate Legislation Act 1978, and prior to publishing the notice the Minister must consult with the Local Government Association.

Under the Amendment Act the Minister cannot publish a notice that imposes restrictions or limitations on the power of a council to impose rates and charges in land within its area.

Furthermore, the Minister has stated that consideration will be given to making a notice allowing councils to make decisions inquorate, if absolutely necessary. Exactly what limitations would be attached to such a notice is not yet clear, however, it is expected that this power would only be exercised in exceptional circumstances where a council's ability to form quorum has been affected by illness, and critical decisions must be made, particularly decisions that, under the Act, councils cannot delegate to a chief executive officer or other body. Presently under the LG Act no business can be transacted at a council meeting unless a quorum is present.

Why is this important?

Council meetings are the most important function of the council. It is at properly convened council meetings that decisions are made that direct the operations of the council. The exercise of a member's vote at a council meeting is the most important part of their role, and it is at these meetings that debates are engaged in and members cast their respective vote.

In the coming months councils will need to carry out many essential functions. For example, the preparation and adoption of annual budgets.

Whilst councils delegate a significant number of responsibilities to their Chief Executive Officers (or other nominated administrative staff) in order for the administration to officially carry on the business of the Council, there are certain activities that cannot be delegated under the Local Government Act 1999 ("LG Act"). For example, section 44(3) of the LG Act provides limitations on powers that may be delegated. Such decisions can only be made by the elected members in the council meeting.

Consequently, councils need to consider where, when and how its meetings are going to be held, while continuing to comply with all obligations under the LG Act, the Work Health and Safety Act 2012, and the South Australian Public Health Act 2011.

What if we cannot have remote council meetings?

For council meetings held in the short or medium term that are not conducted remotely via electronic means we recommend the council consider:

• Dealing with essential items only so as to limit the length of time meetings may run for;
• Look at methods by which meetings may be livestreamed or audio recorded and make the audio recording publicly available, but otherwise restricting public access to the meeting chamber itself.

Councils will need to be aware of its obligations for social distancing and ensure that its meeting rooms can accommodate the restrictions imposed by the Federal Government.

Furthermore, it is, in our view, appropriate and justifiable to refuse to permit members of the public into the meeting chamber. Although the default position is for meetings to be open to the public, the ordinary standard is not possible in the current circumstances. Restricting the physical access of the public is not only consistent with the messaging published by the Federal Government but most importantly consistent with the councils' obligations under the Work Health and Safety Act. In light of the current circumstances the councils' obligations under the Work Health and Safety Act to ensure a safe environment for any persons attending the Council premises, and the obligations of council staff and elected members to ensure their actions do not endanger other persons attending the premises, override any requirements under the LG Act to allow public attendance at council meetings.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.