Electronic Meetings — Further Questions and Answers

2 April 2020

1.   It has been said that we need to wait for our next ordinary meeting of council to put in place measures to facilitate members participating in meetings by electronic means – is this correct?

No.

Firstly, the Minister’s Notice does not prohibit a special meeting of council considering the alteration or substitution of its Code of Practice for Access to Meetings and Documents (under section 92 of the Act), to facilitate future meetings occurring by electronic means.

Secondly, the variation to allow for the CEO to change the place of an ordinary meeting as a consequence of the public health emergency, has no work to do in relation to a special meeting because the time and place of a special meeting is determined by the CEO at the time of giving notice of the special meeting.

Thirdly – and most tellingly – section 86(8a) of the Act (a variation inserted by the Notice), provides that the council members may meet by electronic means to alter a procedure determined by the council to be observed at council meetings.

Fourthly, the Notice provides for the CEO to electronically sign the notice of meeting whether it is notice of an ordinary or a special meeting and this further evidences the lack of any distinction between the two for the purposes of the Notice as is also the case for the giving of public notice, the supply of documents or reports and the quorum calculation.

Fifthly, there is absolutely no provision (or, indeed anything which might support an implication) that the variations to any council procedure in order to facilitate electronic meetings is required to occur at an ordinary meeting of a council. The fact that this is not an express requirement of the Notice, together with the fact that the Notice does not in any other sense distinguish between ordinary and special meetings (save for as identified in the second point above) also reinforces that the necessary variations to council procedures to facilitate electronic meetings in accordance with the Notice are not prohibited from occurring at a special meeting.

Finally, given the objective of facilitating the conduct of council business being transacted in the most efficient and effective manner whilst complying with the State Directions and Federal guidelines at this most unusual and unique of times, it would be somewhat peculiar, if not perverse, for councils to be required to transact the simple business of varying procedures at only an ordinary meeting!

For the sake of completeness, it is also to be noted that, subject to the council’s resolution in this regard, not all members are required to participate electronically. Where a council determines to still ‘open’ its chamber and/or committee rooms (subject to the density criteria and distancing requirements) some members may choose to participate by electronic means and others may choose to attend personally.

2.   What is the process for appointing a different place for the meeting to take place?

There is no prescribed process for the holding of an ordinary meeting at a different place as per section 81(3a) of the LG Act. The decision is one that is conferred, by the Act, on the CEO so there is no requirement for a Council decision (including by the use of regulation 21) or for any delegation to the CEO. The Notice of Meeting will be the appropriate way to communicate this decision.

3.   Is the Council required to resolve the place for the holding of ordinary meetings? If so, is council required to revoke a previous decision of the Council?

The Act anticipates that, the time and place of an ordinary meeting will be ‘appointed’ and, in this context, it is the council that usually resolves this. Where this does not occur, the Act requires the CEO to appoint the time and place. The Minister’s Notice has (temporarily) inserted section 81(3a) into the Act to enable the CEO to appoint a different place to that resolved by the council for the holding of an ordinary meeting, where it is necessary to change the place as a consequence of the public health emergency.

As above, this is a statutory power given directly to the CEO – accordingly, a council decision is not required to achieve an alteration to any previous resolution setting the time and place of ordinary meetings. On this basis, there is no requirement for an elected member to give notice of motion to revoke or amend an existing decision of the council as to the time and place of ordinary meetings and, similarly, no requirement for the CEO to submit a report and recommendation to a council meeting in reliance upon regulation 21 of the Local Government (Procedures at Meetings) Regulations 2013.

4.   Will the Council need to readopt its old Access to Meetings and Documents Code of Practice when we get to the ‘other side’ of COVID-19?

There is no need to readopt the Code if the amendments are adequately highlighted within the current Code as operating only for the period that the Minister’s Notice remains in operation under section 302B(2) – (4) of the Act.

5.   Do meetings still need to be recorded if they are live streamed?

There is no legal requirement to do so. However, this is a practical question that, presumably, has its genesis in the issue of connectivity and reliance upon live streaming. It may, therefore, be considered to be a form of ‘best practice’ to record meetings in the event that a live stream fails or is disconnected part way through a meeting. This would then allow the recording of the meeting (or the balance of it) to be placed on the council’s website as soon as practicable after the conclusion of the meeting.

This then raises the issue of how it is to be recorded? We will leave that answer to the IT gurus out there!

6.   The Notice is silent in relation to informal gatherings and discussions – does that mean our members will still need to attend at those informal gatherings and discussions in person?

No.

There has never been any legislative prohibition on facilitating the attendance of council and committee members at an informal gathering and discussion by electronic means – noting of course, that for designated informal gatherings which occur in public, a live stream facility would also need to be provided. However, while councils are in the process of amending their Code of Practice for Access to Meetings and Documents and Code of Practices for Council and Committee Meetings, we recommend that it, likewise, make associated amendments to the Informal Gatherings Policy, to make the position clear.

7.   Was there a way that this process could have been more streamlined and simpler for councils to implement?

 There are a number of ways in which the Notice could have ‘simplified’ the means of achieving the objective around electronic meetings. For example: –

• as the Minister has power to suspend or vary provisions of the Act, it would have been entirely appropriate, particularly in these unique times and noting that the Notice will be in place on a temporal basis, to simply suspend the operation of section 92 of the Act so that there was no imperative for any council to have the Code of Practice for a period of time. To do so would not negate the obligations upon councils for openness and transparency as they are obligations which otherwise exist through other provisions in the Act;
• the Notice, could have simply amended section 90(7a) (which allows for electronic committee meetings) to provide that council, as well as council committee meetings, would be taken to be conducted in a place open to the public for purposes of section 90, even if one (1) or more council or committee members participated in the meeting by telephone or other electronic means – subject to procedures determined by the council. A further minor amendment to section 89 to recognise procedures at council meetings (as well as committee meetings) would then finalise the approach;
• finally, regulations could have been implemented that prescribed what was required of councils during this period. Taking this approach would have avoided any need for the Code of Practice to be amended and would also have ensured consistency amongst councils.

Lastly, in providing practical solutions and support for our clients, please find links to a track changed version of the relevant Part of the Act and of the Regulations for your assistance, by way of a ‘handy guide’ to the variations/suspensions that have been made to each under the Notice.

 For further information and/or any assistance please contact Michael Kelledy on mkelledy@kelledyjones.com.au or 08 8113 7103; Natasha Jones on njones@kelledyjones.com.au or 08 8113 7102; or Tracy Riddle on triddle@kelledyjones.com.au or 08 8113 7106.