5 things to think about in October 2018

1. What is going on with rate capping?

All readers will be keenly aware that the Local Government (Rate Oversight) Amendment Bill 2018 is before Parliament, reflecting the new State Government’s proposed ‘rate-capping’ regime. That Bill has passed through the House of Assembly and awaits debate in the Legislative Council. The Essential Service Commission is also progressing its side of things, having published a consultation paper in respect of the finer details of the proposal.

However, the Opposition and certain Legislative Council crossbenchers have indicated that they will not support the Bill. It therefore now appears that the Government cannot secure a majority of support for the Bill in the Legislative Council, which would spell the end for rate capping (at least in its current guise). The Opposition and those crossbenchers have indicated that instead of rate capping, they will seek to impose other ‘oversight’ measures upon Local Government. However, no Bill containing these alternative proposals has yet been introduced into Parliament.

In short, rate capping is still on the books as far as Parliamentary procedure is concerned, but may well be dead as far as politics is concerned. We will continue to keep abreast of this matter and any new proposals which are tabled in Parliament

2. Caretaker period

All councils are now in the pre-election ‘caretaker period’. Council staff and elected members are no doubt very familiar by now with the content their council’s specific caretaker policy.

While the Local Government (Elections) Act 1999 sets out certain ‘designated decisions’ which must not be made during the election period, many councils have adopted additional requirements (often labelled ‘significant decisions’ or similar) which purport to further limit the decisions that can be made by the council during the election period.

If your council has chosen to impose limitations upon itself beyond the minimum requirements of the Local Government (Elections) Act 1999, then your council must respect those limitations until the conclusion of the election period. The elected membership and all delegates (such as the chief executive officer) must refrain from making decisions which are prohibited under the Local Government (Elections) Act 1999 or the council’s caretaker policy during the election period.

The caretaker requirements of the Local Government (Elections) Act 1999 cease to apply upon the conclusion of the 2018 periodic election. This occurs at the time at which the last result of the periodic elections (for your particular council) is certified by the returning officer (or, if there are a number of candidates for each position less than or equal to the number of vacant positions, the relevant date is 9 November 2018).

3. New determinations of the Remuneration Tribunal

As a result of its four-yearly review, the Remuneration Tribunal has issued new determinations in relation to allowances payable to council members. One determination relates to the Adelaide City Council, and the other determination relates to all other councils across the State.

Pursuant to the determination which applies across the State, the ‘base allowance’ which councillors are entitled to now ranges from $6,500 to $23,350 per annum depending upon the ‘group’ to which the council is allocated. There has not been a reclassification of these groups since the Tribunal’s last review in 2014. Principal members are entitled to four times the annual base allowance, while a deputy mayor, deputy chairperson or the presiding member of a ‘prescribed committee’ is entitled to 1.25 times the annual base allowance for councillors of that council. Councillors who are presiding members of a committee that is not a ‘prescribed committee’ are entitled to a sitting fee set by the Tribunal for committee meetings.

The determinations will come into effect following the November 2018 elections, when the new elected membership of each council will assume office.

4. Update on the Independent Commissioner Against Corruption (Investigation Powers) Bill 2018

We refer to our ongoing analysis of the Independent Commissioner Against Corruption (Investigation Powers) Bill 2018. The Bill was referred to the Parliament’s Crime and Public Integrity Committee for inquiry and a report was meant to be delivered on 4 September 2018. The deadline for this report was extended until 20 September 2018.

The report is now available here. In short, after considering submissions and evidence from various interested persons (including the Independent Commissioner Against Corruption himself, and the Ombudsman) the Committee does not oppose the basic concepts of the Bill, but recommends a number of amendments. The proposed amendments mainly focus on procedural fairness and legal representation for witnesses. Parliament has not yet reconsidered the Bill since that report was delivered, so it remains to be seen what support, opposition or amendments to the Bill are brought about by this report.

5. Section 91 document confidentiality orders — two tips from Norman Waterhouse

Along with all other aspects of meeting procedure and document management, we regularly advise upon the making of document confidentiality orders under Section 91 of the Local Government Act 1999 (Section 91 Orders). We take this opportunity to make two observations about Section 91 Orders, which are of general application across the sector.

Firstly, while the making of a Section 91 Order lawfully and appropriately is one thing, it is just as important to ensure that your council is reviewing its Section 91 Orders lawfully and appropriately. In our view, it is appropriate that a council should actually have in front of it the documents which are covered by a Section 91 Order when reviewing whether or not that Section 91 Order should continue in force. Given that the purpose of a Section 91 Order is to shield a document or documents from public view, then it follows that the contents of those documents are just as relevant as the actual the wording of the resolution in any review exercise.

Secondly, where a document is of a nature where the chief executive officer will or may need to communicate the document to a third party (such as a commercial document), it is helpful to specifically authorise such disclosure in the Section 91 Order itself. While a disclosure (even if not expressly authorised by resolution) may still be permissible in some circumstances, specific authorisation to disclose will help protect the chief executive officer and other staff members from any allegation of having breached the criminal offence provision at Section 110A of the Local Government Act 1999.