Flood emergency prompts establishment of new (very limited) mechanism for holding electronic Council meetings

Since the expiry of the notices issued under section 302B of the Local Government Act 1999 (SA) (the LG Act), council members generally have not been able to participate in council meetings by electronic means.

However, late last year, a new – albeit presently very limited – legislative mechanism emerged to allow council members to participate in council meetings by electronic means. Although the mechanism currently only applies to one council, contemplates a maximum of 7 councils, and expires by 30 June 2023 at the latest, it may provide a blueprint for future efforts to allow council members to participate in meetings by electronic means, in appropriate circumstances.

We make it clear that, at the present time, aside from the very limited circumstances set out below, there is no general ability for councils to hold electronic council meetings.

The mechanism under the LI Regulations

Section 39 of the Legislation Interpretation Act 2021 (SA) (the LI Act) provides a general allowance for meetings prescribed by legislation to occur remotely via electronic means, including video conference and telephone.

Certain meetings prescribed under the Legislation Interpretation Regulations 2021 (SA) (the LI Regulations) are excluded from being convened remotely, such as meetings of councils, council committees and subsidiaries of councils, as the mechanisms for holding these are separately provided for under the LG Act.

However, on 15 December 2022 the LI Regulations were amended such that council meetings of ‘designated eligible councils held before the relevant day that comply with any requirements of the Minister’ are not considered prescribed meetings and may therefore take place remotely in accordance with section 39 of the LI Act.

A ‘designated eligible council’ is now defined as an ‘eligible council designated by the Minister by notice in the Gazette as a designated eligible council for the purposes of this regulation’. Pursuant to regulation 4(2) of the LI Regulations, the only ‘eligible councils’ are:

• Alexandrina Council;
• The Berri Barmera Council;
• The Coorong District Council;
• District Council of Loxton Waikerie;
• Mid Murray Council;
• Rural City of Murray Bridge; and
• Renmark Paringa Council.

Of these 7 ‘eligible councils’, only one (at the time of writing) has become a ‘designated eligible council’. In particular, in light of the ongoing River Murray flooding, on 15 December 2022, the Minister for Local Government designated Mid Murray Council as a ‘designated eligible council’ for the purposes of regulation 4(1) of the Regulations. The Minister’s notice permits council members of that Council to participate remotely in meetings of the Council, but only in the following circumstances:

• if road or ferry closures impact the member’s ability to access the place of the Council meeting at the Council’s principal office, or another designated place; or
• if travel to the place of the Council meeting at the Council’s principal office or another designated place would create a risk for the member’s safety due to the circumstances of the flooding emergency; or
• if they cannot attend a meeting physically for any other reason directly related to the flooding emergency.

Any council meetings of the Mid Murray Council where one or more members participate remotely must be held in a place open to the public, either at the Council’s principal office or another designated place, or if it is not safe to do so, in an electronic meeting room, where all participating members can be seen and heard by all present.

A livestream of the meeting must be made available to the public by the Chief Executive Officer (CEO) of the Mid Murray Council. If a public livestream is unable to be made available after reasonable steps have been taken by the CEO, the CEO must make a recording of the meeting available on a website, as soon as practicable after the meeting. If the CEO is unable to comply with either of those two requirements, he must publish the steps taken to comply with the requirement on a website.

This mechanism applicable to Mid Murray Council only applies to Council meetings held before 30 June 2023 that comply with the above requirements. If any other eligible councils are designated as a designated eligible council by the Minister, the Minister may fix another earlier date by which this mechanism will expire, otherwise the default 30 June 2023 will apply.

Could we see this again?

The mechanism described above, although very limited in scope, is noteworthy because it shows an alternative to section 302B of the LG Act for the holding of electronic council meetings. Notices may only be issued under section 302B of the LG Act in the case of a declared public health emergency, whereas the varying of the LI Regulations (as happened in this case) could happen at any time. However, the varying of the LI Regulations requires a decision of the State Executive Council and the Governor (rather than just one Minister).

If in the future any council finds itself in a position which may make electronic participate in meetings appropriate, but is not a declared public health emergency, that council could consider seeking a variation to the LI Regulations similar to that which is currently in force for Riverland councils.

For more specific information on any of the material contained in this article please contact Dale Mazzachi on +61 8 8210 1221 or dmazzachi@normans.com.au or Chris Alexandrides on +61 8 8210 1299 or calexandrides@normans.com.au.