Presented to Moorabool Shire Council by Terry Bramham Macquarie Local Government Lawyers 9 November 2016
Local Government is part of the 3-tiered government structure operating in Australia As with federal and state parliaments, decisions of Councils must be made in a formal setting Compliance with meetings procedure ensures uniform and orderly decision-making
Meetings procedure is the mechanism for governing governing the conduct of meetings For local government, the Local Government Act 1989 and each Council’s relevant local law determine the meetings procedure for meetings of Council and special committees
A Council must must make local laws local laws governing the conduct of meetings of the Council (and special and special committees committees) (s91(1) LGA)
Open and closed, ordinary and special, Council meetings Meetings of special committees Does not not apply to: ◦ Advisory or audit committee meetings Advisory or audit committee meetings ◦ Council staff exercising delegated authority Council staff exercising delegated authority ◦ Assemblies of Assemblies of Councillors (Councillor briefings) Councillors (Councillor briefings)
Mayor to chair all meetings of the Council New functions of Mayor (s73AA) extend to – ◦ guiding Councillors about conduct ◦ supporting good working relations between Councillors ◦ reinforcing with Councillors their statutory role obligation to observe principles of good governance and act with integrity
Primary role is to conduct the business of the meeting and to preserve order under the LGA and meetings procedure local law The Chairperson must therefore understand the legislative requirements and be familiar with the agenda items To maintain impartiality and respect, the Chairperson should avoid debating motions and making concluding remarks
Disclosure to occur either either – ◦ to CEO in writing before in writing before the meeting advising – type type of interest (direct or indirect) class class of interest if indirect (1 of 6) description of description of the nature the nature of the interest and ◦ at the meeting, stating the class of the interest only ◦ to Council at the meeting immediately before consideration of the matter stating – type type of interest (direct or indirect) class class of interest if indirect (1 of 6) description of description of the nature the nature of the interest Exit from chamber Minutes to record
Direct Interest (s77B) ◦ Reasonable likelihood of direct altering of person’s circumstances Indirect Interests – ◦ close association (s78) ◦ indirect financial interest (s78A) ◦ conflicting duties (s78B) ◦ receipt of applicable gift (s78C) ◦ becoming an interested party (s78D) ◦ impact on residential amenity (s78E) Conflicting personal interest Interests
Personal interest in conflict with public duty Discretionary Discretionary application for exemption from voting (negated by voting no longer mandatory) Council may not unreasonably refuse Deemed conflict of interest if application approved No criminal consequences
Natural justice/procedural fairness Applies only where a person’s rights are affected Bias caused by pre-determination Possible civil consequences
At an ordinary meeting, general and urgent business of the Council may be transacted At a special meeting, only the business specified in the notice calling the meeting may be transacted unless all all Councillors are present and unanimously unanimously agree to deal with additional business
Meetings must be open to the public - s89(1) Unl Unless ss Council has resolved resolved to close the meeting (‘go into camera’) if discussing – ◦ personnel matters ◦ the personal hardship of any resident or ratepayer ◦ industrial matters ◦ contractual matters ◦ proposed developments ◦ legal advice ◦ matters affecting the security of Council property ◦ any other matter which could prejudice the Council or any person ◦ a resolution to close the meeting to members of the public – s89(2) The reason for closure must be recorded in the minutes of the meeting - s89(3)
One vote entitlement save for Mayor if voting equal Voting no longer compulsory* Show of hands No secret voting at open meetings Majority of Councillors present present voting in the affirmative required to make decision – abstaining Councillors counted Second (casting) vote of Chairperson if affirmative votes half the number of Councillors present
Recommendation Recommendation – contained in an officer report Motion Motion – moved by a Councillor Resolution Resolution – the decision of the Council
A motion can – be carried be lost be withdrawn, or lapse
A matter cannot be debated by the meeting until first moved by a motion A further motion cannot be moved until the previous motion is disposed of A motion must be moved and seconded A motion can be amended If carried, a motion becomes a resolution
An amendment to a motion being debated must be considered by the meeting if – ◦ it is moved and seconded by two Councillors who have not already debated the motion ◦ it does not contradict the motion Debate cannot resume on the motion until the amendment is disposed of by either being carried or lost A carried amendment will alter the motion which must continue to be debated until voted on
A foreshadowed motion is a proposed alternate motion to the one being considered by the meeting It has no status in the meeting It is commonly relied on to flag to other Councillors for support that an alternate motion will be proposed if the one being considered by the meeting is defeated
Debate may commence after a motion has been moved and seconded The mover and seconder speak first unless they request to defer speaking All Councillors may speak for or against the motion Unless the motion is amended, the mover has a right of reply
A point of order is an allowable interjection which directs the Chairperson’s attention to an apparent or alleged breach of meetings procedure (LGA or local law) The Chairperson must stop the meeting (including interrupting a speaker) and rule on the point of order, either upholding or dismissing the point of order A point of order must be genuinely raised
The local law will prescribe the behaviour required of Councillors and visitors Some local laws make it an offence for a breach Either the Chairperson or the meeting by resolution* may direct that a visitor or Councillor leave the meeting for disorderly conduct Summary Offences Act 1966 Prohibited person orders
Procedural motions, as the name suggests, relate to matters of procedure e.g. – ◦ Suspend/resume standing orders ◦ Change the order of the agenda ◦ Adjourn the meeting They are not substantive motions which result from consideration of general business items listed on the agenda
A division is a call for the motion/amendment to be put to the vote again It annuls the decision Councillors are not constrained by their original vote All Councillors’ names voting for or against the motion/amendment must be read out and recorded in the minutes
All local laws provide for time limits for debate Chairpersons generally do not enforce the time limits which may result in prolonged meetings Consistency of application is the main rule
A Council resolution can be rescinded or amended provided that it has not been implemented The process is initiated when a Councillor submits a Notice of Rescission/Amendment with the CEO for listing on the agenda for the next Council meeting A resolution cannot be rescinded/amended at the same meeting it was passed
A Notice of Motion is the process for allowing a Councillor to place an item of business on the agenda Unlike an officer report, a NoM does not provide background information and is generally confined to the proposed motion
Most local laws include provisions for public participation at the meeting by permitting questions to be asked The questions are generally filtered beforehand and therefore impose lodgement deadlines Council may answer the questions at the meeting or take them ‘on notice’
Presented to Moorabool Shire Council by Terry Bramham Macquarie Local Government Lawyers 9 November 2016
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