Norman Waterhouse
   
Norman Waterhouse

Caretaker Period: The Do’s and the Don’ts

By 16 September 2014, all councils will have entered into caretaker period. Once the caretaker period begins, no designated decisions can be made until the end of the election period, except with an exemption from the Minister.

The prohibition on delegated decisions is the minimum standard required under Section 91A of the Local Government (Elections) Act 1999 (the Act). Some councils have adopted additional requirements in the form of ‘significant decisions’ which further limit the decisions that can be made by the council. Therefore, it is important that council members and staff are familiar with the requirements under the legislation as well as the requirements prescribed in their caretaker policy.

What is a designated decision? According to the Act, it includes:

  • Employing or terminating the employment of the CEO, or other decisions relating to the employment or remuneration of the CEO; or
  • Entering into a contract, arrangement or understanding of value more than $100,000 or  1% of rates revenue from the preceding financial year (whichever is higher); or
  • Allowing the use of council resources for the advantage of a particular candidate or group of candidates (noting of course that current council members who are standing for re-election constitute a ‘group’ of candidates).

What are the exceptions?
Councils can continue to make decisions during the caretaker period on -

  • Suspending the CEO for serious and wilful misconduct; or
  • Appointing an Acting CEO; or
  • Entering into a contract or arrangement for road construction/road maintenance, drainage works, emergency/disaster response, etc; or
  • Allowing equal use of council resources to all candidates.

Tips for ensuring compliance:

  • Refer to your caretaker policy;
  • Educate the council and staff on the requirements in Section 91A and the council’s caretaker policy;
  • If there are extraordinary circumstances, consider applying to the Minister for Local Government for an exemption from the application of Section 91A of the Act.

It is important to note that a designated decision made by a council during the caretaker period is invalid if it was made in contravention of s 91A of the Act or the council’s caretaker policy. Further any person who demonstrates that they have suffered any loss or damage as a result of acting in good faith on a designated decision made in contravention of Section 91A of the Act or the caretaker policy is entitled to compensation from the council.

For more information or if you have any queries, please contact Sathish, Felice, Trevor or Dale.


 
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Sathish Dasan
08 8210 1253
sdasan@normans.com.au
Felice D'Agostino
08 8210 1202
fdagostino@normans.com.au
Trevor Gormley
08 8210 1246
tgormley@normans.com.au
Dale Mazzachi
08 8210 1221
dmazzachi@normans.com.au

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