March 2007 Issue 89
LOCAL GOVERNMENT BRIEFLY
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In this issue:
New Disclosure Forms For Non-Council Members of CDAPS
The recently enacted Development (Panels) Amendment Act 2006 (SA) (the Panels Act) introduced changes to procedure and membership of council development assessment panels. The Panels Act introduced a requirement in Section 56A(6) of the Development Act 1993 (“the Act”) that non-council members sitting on panels must disclose their financial interests in accordance with Schedule 2 of the Act which required returns to be lodged in the ‘prescribed form’. On introduction of the changes, the relevant forms for disclosure were still to be prescribed in regulation. Consequently, non-council panel members were not required to comply with the requirements at the time the Panels Act became operational on 23 November 2006.
However, councils should note that the forms for disclosure have recently been prescribed in regulation, and became operational on 26 February 2007. The Development (Disclosure of Interests) Variation Regulations 2007 (“the Disclosure Regulations”) inserted a ‘primary return’ form in Schedule 26 of the Development Regulations 1993 which must be completed ‘on appointment’, and an ‘ordinary return’ form in Schedule 27 which must be completed on an ‘annual basis’.
Councils should note that whilst the ‘primary return’ and ‘ordinary return’ forms provided for under the Disclosure Regulations are similar to the existing disclosure forms under the Local Government Act 1999 (“the LG Act”) there are differences. Consequently, non-council members who have submitted LG Act disclosure forms in anticipation of the Disclosure Regulations are advised to lodge fresh forms in accordance with the new Schedule 26. Additionally, councils who have not yet contemplated the new disclosure requirements should also act immediately in addressing all items in the Disclosure Regulations.
The Development (Panels) (Transitional Provisions) Regulations 2006 (“the Transitional Regulations”) specify the time frame in which relevant Forms must be lodged. Non-council members appointed prior to the establishment of a council’s register of interests, must lodge the relevant forms within 6 weeks after the day on which the register is established. Additionally, non-council members appointed on or after the establishment of the register of interests, must lodge relevant forms within 6 weeks after the day on which the member is appointed. All members should have been appointed by 26 February 2007. Essentially therefore councils should ensure that non-council members submit the required returns for entry into the register of interests maintained by the panel’s public officer within 6 weeks of 26 February 2007.
For further information about issues covered in this article, please contact Paul Leadbeter or Pierina Reina on 8210 1200.
Varying Consultation Requirements Provided for in the Freedom of Information Act 1991
In the assessment of freedom of information requests under the Freedom of Information Act 1991 (“the Act”), information which affects “personal affairs”, “business affairs” and “the conduct of research” must be dealt with by councils in accordance with legislative procedures set down in Sections 26, 27 and 28 of the Act. Section 26 of the Act applies to documents containing information concerning the personal affairs of any person, and Section 27 applies to documents containing information concerning trade secrets, information that has a commercial value or any other information concerning business, professional, commercial or financial affairs. Section 28 applies to documents containing information concerning research that is being or is intended to be carried out.
Councils should be aware of a subtle yet critical difference in the wording of Sections 26, 27 and 28 of the Act, which substantially affects the obligations of councils with regard to consultation requirements. All three provisions require that councils take “such steps as are reasonably practicable to obtain the views of the person concerned”1 in relation to granting access to a document containing information concerning the affected person. Furthermore, all three provisions require that once councils have sought the views of the affected person and the person has responded, written notice is given outlining the council’s determination to release the document and the relevant rights of appeal and review.
Councils must also defer giving access to the document until expiration of the period within which an application for review or appeal can be made, or defer giving access until an application for review or appeal has been fully disposed of.
The critical difference in Sections 26, 27 and 28 can be demonstrated by a scenario where a council takes steps to obtain the views of the person concerned, and the person does not respond. In the case of an affected person not responding, the operation of Section 26 in contrast to Section 27 and 28 will be significantly different. According to Section 26(3)(b), when an affected person does not respond, councils are nevertheless required to notify the person outlining the council’s determination to release the document and the relevant rights of appeal and review. It is not until the expiration of the period within which an application for review or appeal can be made, or an application for review or appeal has been fully disposed, that councils can grant access to documents under Section 26. On the other hand, according to Section 27 (Documents affecting business affairs) and Section 28 (Documents affecting the conduct of research), if a person concerned does not respond following notification of an FOI request, councils are not required to notify the person outlining the council’s determination to either release the document(s) or not and therefore affording any rights of review and appeal.
If you have any queries regarding the consultation requirements under the Act or any issue regarding freedom of information, please contact any of the following members of the Local Government Advisory Team, Paul Leadbeter, Susie Inat, Pierina Reina, Felice D’Agostino or Kate Oliver on 8210 1200.
1A reference to “person” includes companies, associations and other legal entities as well as natural person.
Changes to Councils’ Rating and Financial Processes
Although it received assent over a year ago, the bulk of the amendments made to the Local Government Act 1999 by the Local Government (Financial Management and Rating) Amendment Act 2005 only recently commenced operation on 25 January 2007. The commencement of these provisions triggers the commencement of several anticipated amendments to the Local Government (Financial Management) Regulations 1999 and the Local Government (General) Regulations 1999. The Minister for State/Local Government relations describes the changes as “introducing improvements to council processes for long term financial planning, requiring greater transparency and public consultation in the adoption of annual business plans and budgets, and declaring rates”. Some of the most prominent changes to councils’ reporting requirements are that:
- councils are now required to develop, seek public comment on and adopt an annual business plan describing the council’s overall objectives whilst considering the expenditure and revenue sources associated with them. The plan must also include the equivalent of the council’s rating policy, whilst the requirement to prepare and adopt a separate rating policy has been removed. For the purposes of determining the rating component of the plan, and when adopting the council’s strategic management plans, councils must still consider the financial impact of their rates structure and policies on the community;
- councils’ annual business plans, a summary of the plan and the councils’ adopted budgets are now required to be accessible on the councils’ websites; and
- councils must now develop and adopt a long term financial plan and an infrastructure and assets management plan for a period of at least 10 years. These plans are to form part of councils’ strategic management plans.
As a result of the introduction of annual business plans and the associated public consultation, councils will also need to consider making the necessary changes to their public consultation policies. Those changes must be implemented before commencing the required public consultation.
A couple of other general changes to note are:
- persons entitled to obtain a Seniors Card may now apply for postponement of that amount of their rates which exceeds $500, irrespective of their level of income; and
- the Ombudsman has been given extensive powers to review a council’s administrative practices and procedures relating to rating if it appears to be in the public interest to do so. The Ombudsman has also been given the power to investigate any complaint received regarding the unfair or unreasonable impact on a ratepayer of a declaration of any rate or service charge.
Numerous changes have not been addressed here. I therefore remind you that the latest version of the Local Government Act 1999, the Local Government (Financial Management) Regulations 1999 and the Local Government (General) Regulations 1999 are now marked 25 January 2007.
If you have any queries relating to the recent amendments to the legislation or other requirements relating to rating, please contact Susie Inat on 8210 1270, Felice D’Agostino on 8210 1202 or Kate Oliver on 8210 1226.
Publishing Delegated Appointments by Gazette Notice
Pursuant to Section 20 of the Development Act 1993 (“the Act”), councils have authority to delegate a power or function which is vested or conferred under the Act. In accordance with Section 20, councils frequently delegate the power to make planning decisions upon officers and employees of the council. Furthermore, councils also engage ‘locums’ who are delegated decision-making powers under Section 20 of the Act.
Councils should note that a significant variation in statutory obligations exist in regards to delegating powers and functions to ‘locums’ as opposed to officers and employees of councils. According to Regulation 104(c)(ii) of the Development Regulations 1993, the delegation to a person who is not an officer or employee of a council must be published in the Gazette. Generally, ‘locums’ engaged by councils will not be considered officers or employees of a council. Consequently, councils should be aware that notice of the delegation of powers and functions upon ‘locums’ must be published in the Gazette.
For further information about issues covered in this article, please contact any member of the Local Government Advisory team on 8210 1200.
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