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Norman Waterhouse

5 things to think about in April 2019

1. Public consultation on new ‘whistleblower’ requirements

The Independent Commissioner Against Corruption has published draft guidelines under the Public Interest Disclosure Act 2018 (SA). The draft guidelines are available here. The sector has until 5 April 2019 to make comments regarding these draft guidelines.

This is of some considerable significance. We have devoted a separate article this month to this matter, which we encourage you to read here.

2. Consultation on Annual Business Plan and Rates

We now enter that time of year where annual business plans and financial management become front of mind. While the preparation of the various necessary documents is clearly of substantial importance, it is also important to ensure that public consultation is conducted correctly.

Advertising and holding a public meeting in respect of the council’s draft annual business plan is a mandatory exercise under the Local Government Act 1999 (SA), for all councils. The provision of an opportunity to provide written submissions is also mandatory. Councils cannot choose one method of consultation or the other. The same requirement for a public meeting plus an opportunity to make written submissions also applies to proposed changes to the basis of rating, and proposed changes to the differentiating factor used in relation to differential rates. Public meetings for annual business plans, for changes to the basis of rating, and for changes to rates differentiating factors can be held together as one meeting.

3. Strategic Management Plans

Every year, as soon as practicable after a council adopts its annual business plan, the council is then required to undertake a review of its long-term financial plan.

However, given the sector has recently had a general election, it is also worth pointing out the separate obligation that each council must undertake a comprehensive review of its strategic management plans (including its long-term financial plan and infrastructure and asset management plan) within 2 years after each general election. Councils might therefore, either in 2019 or 2020, choose to absorb the mandatory annual review of the long-term financial plan into this larger ‘comprehensive review’.

It is worth remembering that council members are required to undertake mandatory financial management training within the first 12 months of their term. The content of that training may assist in this ‘comprehensive review’ of strategic management plans. If your council has council members who missed out on our post-election mandatory training already delivered, you can contact Virginia Liu on 8210 1279 or to arrange a ‘catch-up’.

4. Are your 'working groups' actually 'informal gatherings'?

We are aware that a number of councils establish ‘working groups’ or similar groups which are not committees established under Section 41 of the Local Government Act 1999 (SA).

While the establishment of such groups is not in itself unlawful, councils must ensure that the proceedings of these groups do not breach the informal gatherings provisions of the Local Government Act 1999 (SA). The risk of breach arises whenever council or committee members, or a combination of council or committee members and staff, discuss matters that would ordinarily be on the agenda of a council or committee meeting.

Accordingly, any councils with ‘working groups’ involving council or committee members should examine whether the informal gatherings provisions apply to meetings of that group. If the provisions do apply, then it will be necessary to ensure that the council’s mandatory informal gatherings policy is being complied with (including requirements for gatherings to be held in public) in respect of all meetings of the group.

5. Dirty deeds

Councils execute a range of legal instruments, all the time. Generally, the signature of a proper delegate is sufficient for a council to execute a document.

However, instruments which are ‘Deeds’ (in the strict legal sense of that term—the term is used more commonly than is perhaps necessary) need to be executed in a specific way. That is, it is necessary to affix the common seal of the Council, in accordance with the ordinary rules for affixing the seal, in order to execute a Deed (or else an attorney must be appointed under common seal).

Just because a Deed was wrongly executed does not automatically make it invalid—but the Council will need to provide external evidence showing it intended to be bound by the wrongly executed Deed, should that Deed ever be challenged or subject to other legal scrutiny. It is therefore always better to execute Deeds properly in the first instance.

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