Extension of Minister’s local government public health emergency power

Early on in the COVID-19 pandemic a new section 302B was inserted in the Local Government Act 1999 (LG Act). That section empowers the Minister to vary or suspend the operation of any provision of the LG Act, if the Minister is satisfied that the variation or suspension is reasonably necessary as a result of a public health emergency declared under the South Australian Public Health Act 2011 or the Emergency Management Act 2004.

The Minister has, pursuant that provision, issued four notices modifying the LG Act to deal with matters including electronic participation in council meetings, closure of principal offices, inspection of documents, and timelines for annual business plans and budgets.

On its original drafting, section 302B of the LG Act was set to expire automatically on 31 December 2021. The expiry of the section would also terminate all notices and associated temporary modifications to the LG Act. However, the State Government has now introduced into Parliament the COVID-19 Emergency Response (Expiry) (No 3) Amendment Bill 2021 (Bill) which (among other things) proposes to remove that termination date.

As indicated by the Attorney-General in Parliament upon tabling the Bill:

It is now clear that there is a high probability of the need to continue the operation of existing notices and have continuing capacity to make future notices, given the ongoing nature of the COVID-19 pandemic.

The Bill accordingly proposed to delete the 31 December 2021 expiry date in section 302B of the LG Act. However, the Bill does maintain a requirement that the Minister must provide a report to Parliament regarding the operation of section 302B of the LG Act. Although the Bill has not yet passed Parliament at the time of writing, it appears very likely that the provisions of the Bill relating to the amendment of the LG Act will be passed.

Eventually, when there is no longer any emergency declaration in force under the South Australian Public Health Act 2011 or the Emergency Management Act 2004 with respect to the COVID-19 pandemic, the notices under section 302B of the LG Act relating to COVID-19 will lapse. However, section 302B of the LG Act will remain in the Act, ready for the next public health emergency (unless eventually repealed).

For more information please contact Felice D’Agostino on +61 8 8210 1202 or fdagostino@normans.com.au or Dale Mazzachi on +61 8 8210 1221 or dmazzachi@normans.com.au.