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Norman Waterhouse

5 things to think about in December 2018

1. Important deadlines: Campaign donation return and Primary return

Campaign donation returns must be lodged within 30 days after the conclusion of elections. Readers will be aware (as mentioned in our October update, which can be accessed here) that this is true for all candidates—not just the successful ones.

All newly-elected council members (i.e. not those returning to office) must also submit a primary return within six weeks after their election.

While the precise deadline for each document will differ from council to council (as elections formally ‘conclude’ at different times for different councils, depending on when the results are certified), those deadlines will have already fallen due or are about to fall due at the time this article is published. The chief executive officer is required to notify any council member and/or candidate who misses either deadline, as soon as practicable.

Critically, if a council member continues in their failure to submit their campaign donation return and/or, if required, their primary return, for more than one month after the statutory deadline, then they will automatically lose office. It is therefore fundamentally important that campaign donation returns and primary returns are followed up sooner rather than later.

2. Questions lying on the table

Most readers will be aware that one meeting-procedural impact of the general election is that all resolutions pre-dating the general election are now ‘fair game’ for revocation or amendment by motion without notice.

However, another perhaps less well known impact of general elections on meeting procedure is that all questions which were ‘lying on the table’ at the time of the election have now lapsed. That is, if a question was lying on the table as a result of a formal motion passed before the general election, it is now no longer necessary for the question to be ‘retrieved’ by a new resolution. The question can simply be moved afresh by any member.

The chief executive officer is required, at the first ordinary meeting after the general election, to report on any question which was lying on the table and which lapsed. Many councils will have had no questions lying on the table, and therefore no report is needed. However, any council which did have questions lying on the table should receive a report from their chief executive officer at their first ordinary meeting.

3. Committee meeting procedures

As many councils are in the process of establishing committees following the general election, it is opportune to remind the sector of the importance of determining which meeting procedures should apply to committees. In particular, councils should turn their minds to whether the requirements of Part 2 or Part 3 of the Local Government (Procedures at Meetings) Regulations 2013 should apply to any given committee.

The ‘Part 2 procedures’ are the same formal procedures which apply to meetings of councils. The ‘Part 3 procedures’ are a more relaxed set of procedures. Part 3 is the default set of procedures which applies to any committee, except for a committee performing regulatory activities (Part 2 will always apply to a regulatory committee). While Part 3 is the default, a council can nevertheless impose the more strict Part 2 procedures on any committee, by resolution. If Part 2 is to apply to a committee, it is prudent that this should be clearly enshrined in the Committee’s terms of reference, as well as any code of practice for meeting procedures which may apply to the committee.

4. Principal member of council as a committee member

While on the subject of establishing committees, it is also worthwhile to point out that the principal member is not an ex officio member of every committee as of right. The principal member has no entitlement to participate in a committee meeting unless they are a committee member. A principal member can be appointed to a committee either in an ex officio capacity, or a permanent capacity.

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

Now leaving aside election-related issues—as readers may recall from our update in September, the Independent Commissioner Against Corruption (Investigation Powers) Amendment Bill 2018 was referred to the Parliament’s Crime and Public Integrity Committee for inquiry and a report was delivered on 20 September 2018, which can again be found here.

On 15 November 2018, the Independent Commissioner Against Corruption (Investigation Powers) No 2 Amendment Bill 2018 was introduced into the Legislative Council. This new Bill is similar to the original, but now includes further amendments following on from the Committee’s recommendations. For example, all persons giving evidence in an examination into serious or systemic maladministration and misconduct in public administration, or otherwise allowed to appear or make submissions before an examination, will be entitled to legal representation. Privilege against self-incrimination is inserted, and the role of legal professional privilege is clarified to some extent. A number of other amendments were also made, ostensibly to improve some operational and practical aspects of the legislation.

This new bill has not yet been the subject of any debate, and Parliament will not sit again until mid-February. The progress of these proposals through Parliament will therefore continue for at least some months yet.

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