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Norman Waterhouse

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In this issue

Welcome to the December edition of our Local Government Briefly.

Use of mobiles and tablets is on the increase with almost 40% of visits to normans.com.au now coming through handheld devices. We would like our mobile users to have the best possible experience when using the Normans website on smaller screens. Therefore, after several months of development, we are delighted to announce the launch of our new mobile site.

Our aim is to provide the best user experience for reading our content, locating our contact details and finding us on an easy Google map. If you view the site on an iPad or anything larger, you will still see the desktop site.

We hope you enjoy the mobile site.

Kind regards,

Normans Marketing Team

Walking the Talk – Industrial Relations in the Real World
Full Day Seminar
4th April 2014

Following our highly successful industrial relations conference earlier this year, the Norman Waterhouse Employment and Industrial Relations Team invites you to join them again for a full day of in-depth and interactive analysis of workplace issues.

The program will be launched on 6th January. Click here to register to be the first to receive the notifcation of the program launch.

We wish all of our valued clients a very happy Christmas and prosperous 2014.

Please note our office will close at 12 noon on Friday 20 December 2013 and reopen on Thursday 2 January 2014.

>   Major Alert – Employment – Chief Executive Officer award coverage: up in the air?
>   Joint report: Governance and Planning – Independent CDAP members and the ICAC
>   Employment – The twelve days of Christmas
>   Property, Infrastructure & Development – Legislative updates
>   Local Government – 1 January 2014 for new meeting procedure regulations
>   Environment, Water and Town Planning – Recent listing of “River Murray-Darling to Sea” as a protected ecological community under the Environment Protection and Biodiversity Conservation Act 1999

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Major Alert – Employment – Chief Executive Officer award coverage: up in the air?

The Supreme Court recently found that the employment of a council Chief Executive Officer (CEO) was not covered by the South Australian Municipal Salaried Officers Award (SAMSOA). If the decision stands, councils will need to make changes to the way in which CEO recruitment, management and termination is conducted. Moreover, CEOs will also need to reassess the extent of their employment rights and obligations.

The facts and the decision

In the Supreme Court case of Hand v District Council of Barunga West [2013] SASC 182, a council CEO was terminated with an amount of notice greater than that prescribed by the SAMSOA, but less than what the CEO considered was ‘reasonable notice’.

The Court found that the SAMSOA did not cover to the CEO. Accordingly, the CEO was entitled to a period of ‘reasonable notice’ in line with the common law of employment contracts, rather than notice in accordance with the (less generous) mechanisms of the SAMSOA. However, in the circumstances, the Council already provided notice vastly in excess of the SAMSOA requirements and so the Court found that the CEO required only a comparatively small further payment for notice.

CEOs and the SAMSOA

The Court examined Clause 1.6.1 of the SAMSOA, noting that the Award is binding only upon employees:

‘... whose duties, responsibilities and work description are contained within the terms of this Award.’

The precise duties, responsibilities and work description of the CEO are not set out in the same way as General Officers and Senior Officers in Schedules 2 and 3 of the SAMSOA. This omission of a detailed description in the SAMSOA was likely made because the duties and responsibilities of the CEO are set out in the Local Government Act 1999 (SA). Nevertheless, because of this lack of a detailed description in the SAMSOA, the Court considered that the CEO is not ‘covered’ by the SAMSOA.

What happens now?

Debate may ensue regarding the decision. The Court has expressed that the SAMSOA entirely does not ‘cover’ CEOs, and yet Clause S1.2.2 of the SAMSOA specifically makes reference to and confers rights upon CEOs. Furthermore, Clause S1.1.5 purports to classify CEOs as Senior Officers. These are issues which may be explored in future proceedings.

However, the Supreme Court decision is for now the most authoritative statement of the law in relation to the application of the SAMSOA to CEOs. Local Government human resources practices regarding CEOs will need to change in certain ways if and until a new decision supersedes this decision.

Councils may wish to have the terms of the SAMSOA incorporated into any contract of employment with a CEO by agreement in order to essentially maintain the status quo. Alternatively, councils may seek only to carry over certain elements of the Award into CEO employment contracts. The above case illustrates an example of an element of the SAMSOA which a council might wish to carry over into a CEO contract, namely the notice provisions.

This decision may have wide-reaching implications, and may affect positions beyond simply the CEO. The resolution of this issue is of great significance to Local Government industrial relations in South Australia. We intend to provide the sector with a more complete view early next year. We will also continue to monitor and be involved in this issue and will keep you informed of any developments.

For more specific information on any of the material contained in this article please contact Sathish Dasan on 08 8210 1253 or sdasan@normans.com.au.


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Joint report: Governance and Planning – Independent CDAP members and the ICAC

Last month the Governance and Planning teams joined forces to demonstrate certain significant (and potentially unintended) developments in relation to the investigation and discipline of conflicts of interest among members of council development assessment panels (CDAPs).

In this article, we examine the status of independent CDAP members under the Independent Commissioner Against Corruption Act 2012 (SA) (ICAC Act). Specifically, we have considered whether independent CDAP members are ‘public officers’.

The relationship between a council and an independent CDAP member

A council is required to appoint ‘independent’ members (i.e. persons who are not employees or members of the council) to its CDAP pursuant to Section 56A(3) of the Development Act 1993 (SA) (Development Act). That section provides for certain conditions of appointment, including a maximum term and circumstances in which independent CDAP members can be removed from office. The Section also confers upon councils the function of determining the other conditions of appointment of their independent CDAP members.

It can therefore be seen that independent CDAP members hold a statutory office. The conditions of this statutory office are partially determined by statute and partially determined by the relevant council.

However, the fact that an independent CDAP member is a statutory office holder does not preclude the existence of a contract for the performance of work. It is misconceived to draw a line of mutual exclusivity between holding a statutory office and being a party to a contract for the performance of work. One needs only look at the Chief Executive Officer of a council for an example of this. A Chief Executive Officer is appointed to a statutory office, but is nevertheless a party to a contract for the performance of work (specifically, a contract of employment) with their council.

Similarly, in our opinion, a contract for the performance of work exists between an independent CDAP member and the council which appoints the independent CDAP member. Independent CDAP members perform their work for the relevant council (CDAPs are not legal entities), and are remunerated by the council accordingly.

We know from the Development Act that independent CDAP members are not employees of their relevant council, as their position requires them not to be ‘officers’ of the council. The contract between a council and an independent CDAP member is therefore not an employment contract, but rather, in our opinion, a ‘contract for service’. In other words, it is our view that an independent CDAP member is a contractor of a council.

What does the ‘contractor’ status of independent CDAP members mean under the ICAC Act?

Schedule 1 of the ICAC sets out who is a public officer. Relevantly, ‘a person performing contract work for a public authority’ is a public officer. Independent CDAP members perform contract work for councils (which are public authorities) and are therefore public officers under the ICAC Act.

As public officers, independent CDAP members can be the subject of complaints and reports to the Office for Public Integrity. Pursuant to such a complaint or report, the Independent Commissioner Against Corruption (ICAC) may investigate the matter. Alternatively, the ICAC may refer the matter to another inquiry agency (such as the Ombudsman who, as we set out in last month’s article, does have the jurisdiction to investigate conduct issues in relation to independent CDAP members as well as administrative issues) or may refer the matter to the council (which will investigate any matter through the public officer of its CDAP).

Furthermore, independent CDAP members, like other public officers, have reporting obligations under the ICAC’s Directions and Guidelines for Inquiry Agencies, Public Authorities and Public Officers.

In other words, independent CDAP members are on the same footing as other CDAP members under the new public integrity regime set out by the ICAC Act. The fact that independent CDAP members are captured by this regime does not mean that there is suddenly a higher standard of conduct that must be adhered to — all conduct that was improper or illegal before the commencement of the ICAC Act remains so. The new regime simply adds new reporting and investigative mechanisms which will more effectively expose such improper and illegal conduct.

For more specific information on any of the material contained in this article please contact Felice D'Agostino on 8210 1202 or fdagostino@normans.com.au or Peter Psaltis on 8210 1297 or ppsaltis@normans.com.au.


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Employment – The twelve days of Christmas

Lawyers have a tendency to bring bad tidings for the Christmas and New Year period. The circumstances around the period bring unique pitfalls that employers must be careful to manage and avoid. Leave balances must be reviewed, motivation must be maintained and distractions must be managed, among other things.

However, the Christmas and New Year period offers a significant opportunity for managers to go above and beyond their day-to-day managerial duties with a view to improving the cohesiveness, morale and loyalty of their teams.

We at Norman Waterhouse strongly believe in, and practice, this philosophy. In the days leading up to Christmas this year and in future years, why not try a few new things that may work for you?

  • purchase a ‘team gift’ of some practical use. A good team coffee machine will usually do the trick.
  • organise a massage therapist to give a neck and shoulder massage to employees who may want one.
  • provide coffee and doughnuts for a team morning or afternoon tea.
  • rejuvenate your office-space – replace old or ergonomically unsound furniture, add a plant or two, and rearrange spaces that are presently not well-used.
  • hire a ‘foosball’ or table-tennis table and hold a tournament in the office during your lunch break.
  • ask your employees one by one for feedback on which particular management initiatives over the past year have proven most beneficial and which ones have failed.
  • get involved with a charity – pick a charity and encourage your employees to perform some community work and make donations to the charity.
  • leave work half an hour before closing and go bowling.
  • give positive feedback to all individual employees about their performance over the year. Keep the negative feedback for another time.
  • organise a meeting where each team member can address the group and express any positive feelings relating to the team and/or the workplace.
  • distribute cards and/or inexpensive gifts among employees – the more individualised and personal, the better.
  • hold an office party and let everyone enjoy themselves. People already know what they can and cannot do. Have fun, and wish staff and their families well during the break. Consider providing ‘cabcharges’ to employees to get them home safely.

Provided common sense prevails, the provision of gifts and opportunities such as those outlined above can lead to happier, and, in turn, more productive teams. Managers should consider seizing the opportunity provided by the Christmas and New Year period to undertake such endeavours, and to have some fun themselves.

Have a safe and wonderful Christmas and New Year, from all of us at Norman Waterhouse.

For more specific information on any of the material contained in this article please contact Sathish Dasan on 08 8210 1253 or sdasan@normans.com.au.


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Property, Infrastructure & Development – Legislative updates

A number of pieces of legislation that impact on local government property professionals were assented to recently.  A brief summary of this legislation is set out below.

Aboriginal Lands Trust Act 2013

This Act has been assented to following a review of the Aboriginal Lands Trust Act 1966 (SA) by the State Government and consultation with relevant parties.  The Act repeals and replaces the Aboriginal Lands Trust Act 1966 (SA) and is intended to better enable the Aboriginal Lands Trust (Trust) to deal with the significant challenges of owning and managing its land in contemporary circumstances.  In particular, for local government property professionals, in relation to Trust land that is located within the area of a council, section 57 of the Act requires the Trust to take reasonable steps to liaise with the council in respect of the provision of services and facilities on or in relation to the Trust land.  Leases granted by the Trust must contain provisions requiring the lessee to grant access to the land by the relevant council for the purposes of providing services and facilities. 

The Act will commence on a date to be set by proclamation.  At this stage, we understand that it is proposed that the Act will become operational in the middle of next year.

Electronic Conveyancing National Law (South Australia) Act 2013

A significant amount of work has been done on enacting a national electronic conveyancing system (NEC) in Australia.  The NEC is an initiative of the Council of Australia Governments and will be an electronic business environment specially implemented to create and settle property transactions.  It is envisaged that the NEC will reduce costs and delays associated with conveyancing and settling land transactions, increase the accuracy of transactional data lodged with land registries and reduce the complexity and cost of dealing across the different States and Territories in Australia. 

The purpose of this Act is to enact the NEC in South Australia. 

The NEC will result in significant changes in how conveyancing for property transactions is undertaken in South Australia.  As such, the Act will become operational in stages to facilitate a smoother transition to the new system.  We will provide further updates and information about the NEC and its operation in South Australia in the New Year. 


For more specific information on any of the material contained in this article please contact Lisa Hubbard on 08 8217 1369 or lhubbard@normans.com.au.


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Local Government – 1 January 2014 for new meeting procedure regulations

The Local Government (Procedures at Meetings) Regulations 2013 (New Regulations) have now been formally made, and will commence operation on 1 January 2014. The New Regulations were circulated to the sector in draft form earlier in the year. The final form of the New Regulations is almost exactly the same as that draft.

The New Regulations replace the Local Government (Procedures at Meetings) Regulations 2000 (Former Regulations), and most provisions of the New Regulations are in effect identical to provisions of the Former Regulations. The differences include new subject matter to be included in minutes, new conditions relating to questions which ‘lie on the table’, and a new power of the Chief Executive Officer to recommend the revocation or amendment of a resolution passed since the last general election.

To organise meeting procedure training for your council (including through a ‘mock meeting’ format) or for more specific information on any of the material contained in this article, please contact Dale Mazzachi on 8210 1221 or dmazzachi@normans.com.au.


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Environment, Water and Town Planning – Recent listing of “River Murray-Darling to Sea” as a protected ecological community under the Environment Protection and Biodiversity Conservation Act 1999

On 5 August 2013 the former federal Environment Minister Mark Butler declared the River Murray–Darling to Sea ecological community as a critically endangered and protected ecological community under Australia’s national environment law, the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act).

The listing encompasses the River Murray from slightly upstream of the Darling River junction through to its mouth at the Coorong.

The boundary of the listed community generally follows the 1956 floodline of the river. The streams and tributaries within the prescribed water resources areas of the eastern Mount Lofty Ranges and Marne-Saunders that connect with the River Murray and Lower Lakes also form part of the listing.  The listing obviously covers a very extensive area.

This ecological community passes through a number of rural and regional councils, such as The Coorong, Alexandrina, Murray Bridge, Mid Murray, Loxton Waikerie, Berri Barmera, and Renmark Paringa (in SA), Mildura (in Victoria), and Wentworth (in NSW). A map outlining the extent of the listing can be found here.

What does the listing mean?

The listing means that an activity which has, will, or is likely to have a significant impact on a protected ecological community (known as a ‘controlled action’) will require the approval of the Commonwealth Environment Minister (Minister) in order to be undertaken lawfully.

The Commonwealth Significant Impact Guidelines (see here) explain that an action is likely to have a significant impact on a critically endangered or endangered ecological community if there is a real chance or possibility that it will:

  • reduce the extent of an ecological community;
  • fragment or increase fragmentation of an ecological community, for example by clearing vegetation for roads or transmission lines;
  • adversely affect habitat critical to the survival of an ecological community;
  • modify or destroy abiotic (non-living) factors (such as water, nutrients, or soil) necessary for an ecological community’s survival, including reduction of groundwater levels, or substantial alteration of surface water drainage patterns;
  • cause a substantial change in the species composition of an occurrence of an ecological community, including causing a decline or loss of functionally important species, for example through regular burning or flora or fauna harvesting;
  • cause a substantial reduction in the quality or integrity of an occurrence of an ecological community, including, but not limited to:
    • assisting invasive species, that are harmful to the listed ecological community, to become established, or
    • causing regular mobilisation of fertilisers, herbicides or other chemicals or pollutants into the ecological community which kill or inhibit the growth of species in the ecological community; or
  • interfere with the recovery of an ecological community.

If a proposed activity is a controlled action, the approval process involves the following:

  • a referral to the Minister (determining if the action may have a significant impact on the ecological community or not);
  • if the Minister determines the activity is a controlled action, an environmental assessment (the scope of the assessment depends on the complexity of the proposed activity and impacts); and
  • a decision from the Minister (which involves consideration of the environmental, social and economic factors).

Whether a referral is necessary turns on the sensitivity, value and quality of the environment which is impacted, and upon the intensity, duration, magnitude and geographic extent of the impacts.

The Commonwealth Information Guide (see here) identifies that routine property maintenance and continued (or improved) land management practices carried out in line with laws and guidelines covering native vegetation, fishing and water management will usually not require referral. This includes most farming, fishing and irrigation activities, so long as they are not enlarged or extended.

The Information Guide identifies the following activities as likely requiring referral:

  • permanently clearing large areas of intact and high-quality native vegetation
  • new works that lead to permanent drainage or major new or upgraded dams and weirs, and
  • other major developments that adversely affect the ecological community.

We have not yet had a chance to consider the 232 page conservation advice (see here) in detail.  On a preliminary reading it may be that the Information Guide is perhaps a little optimistic.  We hope to publish a further Briefly article in the new year setting out our further thoughts.

What does this listing mean for SA councils?

Infrastructure development

Councils (and the State Government) often undertake large-scale infrastructure projects.  These sorts of projects may significantly impact the ecological community and, if so, will require referral to the Minister for approval.  The Commonwealth Department notes that, to date, no activity has been rejected outright, although some were approved with conditions to take better account of significant environmental impacts, e.g. the Clayton Regulator and Lower Lakes Irrigation Pipeline.

Development applications

Where a particular activity requires a development authorisation under the Development Act 1993 and is likely to significantly impact the River Murray ecological community, an applicant will be required to seek an approval under the Development Act as well as a referral (and if required, an environmental assessment) under the EPBC Act.  An applicant may seek the relevant approvals in either order.

It may be that councils, as local planning authorities, see an increased usage of Section 52A of the Development Act.  Section 52A appears to allow applicants who have been through the EPBC Act referral process to re-use (without modification) the documents created for that process for their development application.

Councils should also bear in mind that Section 52A(6) provides that, where the Minister has approved a controlled action, the council must consider whether any conditions of a related development authorisation should be consistent with any conditions imposed by the Minister, and may attach a condition requiring compliance with some or all of the Minister’s conditions.

We anticipate that the majority of applicants for development approval will be unaware of the above listing and its impacts. If a development application within the River Murray ecological community is submitted, it would be prudent and courteous (but not legally required) if the relevant council were to inform applicants of the listing in general terms and refer them to the information available from the website of the Commonwealth Department of the Environment (www.environment.gov.au).

Post script - ‘One Stop Shop’ policy for environmental approvals

Both New South Wales and Queensland have recently agreed to enter agreements with the Commonwealth to create a single environmental assessment and approval process. If agreement is reached, this will mean that State Government approvals will satisfy the EPBC Act’s requirement for Ministerial decisions, and therefore remove the need for an approval from the Commonwealth Minister under the EPBC Act. This is part of the Federal Government's ‘One Stop Shop’ policy on environmental approvals (more details of the policy can be found here).

Although to date South Australia has not discussed entering such an agreement, it may become a talking point after the March 2014 state election - particularly if there is a change of government.

For more specific information on any of the material contained in this article please contact John Watson on 8210 1245 or jwatson@normans.com.au.


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