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Norman Waterhouse

5 things to think about in May 2019

1. Council member complaints handling procedures

In previous editions, we have been reminding our readers of various council documents which need to be reviewed following a general election. Continuing with that theme, this month we point out the following provision in Part 2 of the Code of Conduct for Council Members (Code):

It is intended that each Council will adopt a process for the handling of alleged breaches of this Part. This process will be reviewed within 12 months of a general Local Government election.

At the time of writing, nearly 6 months have elapsed since the 2018 general elections. According, councils should ensure that their complaints handling procedures under the Code are reviewed within the next 6 months if a review has not already occurred post the 2018 election.

While a review of the Code may be on the table in the present Local Government Act 1999 proposed reforms, it is prudent for Councils to proceed on the basis that the present Code will still be in force in 6 months’ time.

2. Reform proposals for the Local Government Act 1999

While on the subject of the proposed reforms to the Local Government Act 1999: readers would, by now, be aware that this process is underway. The first step in that process was the release of a discussion paper by the Local Government Association. The deadline for submissions in response to that paper was 26 April 2019.

This reform process will have multiple stages, and councils will consulted at various steps along the way. According to the discussion paper, the next proposed consultation will be upon ‘Potential Reform Bill 1’, sometime toward the middle of this year. If this means that draft consultation legislation is to be released at that time, we will closely examine the terms any such document. A ‘Potential Reform Bill 2’ is also slated for later in the year. The manner in which proposals will be divided between the two bills is unclear. We look forward to providing our views once draft legislation is available.

3. Review of the Water Industry Act 2012

Also under review at the moment is the Water Industry Act 2012. That Act has an in-built requirement that it must be reviewed 5 years after commencement, a milestone which was passed on 1 July 2018.

The whole Act is up for review, and so if your Council has encountered any issues whatsoever under the Act—whether about obtaining licences, billing customers, protecting infrastructure, limits on the powers and immunities of water industry entities and officers, accessing land, dealing with ESCOSA, the Department or the Technical Regulator, or anything else—now is the time to raise them. The period for submissions closes on 24 May 2019.

4. Public Interest Disclosure Act 2018 commencement

We have written several times about the significance of the impending repeal and replacement of the Whistleblowers Protection Act 1993 by the Public Interest Disclosure Act 2018 (see most recently here), and have delivered briefing sessions on the subject to representatives from many councils.

Now, we have a date for the commencement of the Public Interest Disclosure Act 2018: 1 July 2019. By that time, we expect that there will be final ‘guidelines’ published by the Independent Commissioner Against Corruption, and any online portal for reporting information to the Office for Public Integrity (envisaged in the draft guidelines) should be operational.

Council CEOs will have 3 months from the commencement of the Public Interest Disclosure Act 2018 to ensure that he following is done (that is, these things must be done by 1 October 2019):

  • One or more officers or employees of the council are designated as ‘responsible officers’ of the council for the purposes of the Act; and
  • The name and contact details of each responsible officer of the council are made available to officers and employees of the council.

It is also noted that the Public Interest Disclosure Regulations 2019 were recently proclaimed. They provide that responsible officers must undertake any training courses approved by the Independent Commissioner Against Corruption.

Public sector agencies must also implement certain procedures by 1 October 2019, but this does not apply to councils. Nevertheless, councils ought to be preparing appropriate policy and procedural frameworks as soon as possible after commencement of the new regime.

5. Independent Commissioner Against Corruption (Investigation Powers) No 2 Amendment Bill 2018

Finally, avid readers are likely wondering what is happening with the Independent Commissioner Against Corruption (Investigation Powers) No 2 Amendment Bill 2018 (Bill).

Since our last update on the topic, the Bill has passed the Legislative Council and been introduced in the House of Assembly. There were some amendments in the Legislative Council, notably including:

  • a requirement that any public inquiry must be headed by the ICAC himself (not a deputy);
  • a requirement that certain rules of evidence must be observed in public inquiries (originally, the Bill expressly provided that the rules of evidence would not apply); and
  • a proposal to amend the victimisation provision of the Independent Commissioner Against Corruption Act 2012(SA) to make it consistent with the equivalent provision in the Public Interest Disclosure Act 2018 (SA) (including a substantial increase in the applicable criminal penalty).

However, of course, the Bill is still not yet law. The Bill may undergo further amendment as it continues its passage through Parliament. As always, we continue to watch this matter closely.

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