Local Government (Administration) Amendment Regulations 2022

Temporary provisions to enable councils to hold meetings electronically, and to enable councillors to attend via electronic means, were introduced in 2020 as part of the State Government’s immediate and world-leading response to the COVID-19 pandemic.

As part of the State Government’s package of local government reforms, the Local Government (Administration) Regulations 1996 (Regulations) have been amended to enable local governments to continue to conduct council and committee meetings electronically outside of emergency situations.

From 9 November 2022, the new provisions will:

• Enable councils to hold up to half of all council meetings by electronic means in a 12-month period.
• Provide for council members to, with the approval of the mayor, shire president, or majority of the council, attend a council meeting by electronic means. There will be a cap in the number of council meetings that a councillor can attend by electronic means, which will not apply to councillors living with a disability (as defined in the Disability Services Act 1993).

The cap applies to in-person meetings conducted from 9 November 2022 onwards. This means that meetings held entirely by electronic means, and meetings that have previously been conducted under the State of Emergency will not be counted towards the cap.

In light of these amendments, local governments should maintain a record of electronic meetings held, and each individual council member’s attendance by electronic means at in-person meetings. The 50% cap for members attending electronically is determined by counting the number of meetings the member has already attended by electronic means in the preceding 12 months.

While these provisions have been introduced, and provide flexibility to the sector, local governments should, where practical, make every effort to hold their meetings in person.

In addition to the provision of electronic meetings, other amendments to the Regulations provide for:

• reimbursement of travel and childcare costs associated with mandatory training
• updated local government training course codes and names in accordance with national accreditation standards
• the removal of references to previous employee gift disclosures that are no longer required.

The regulatory amendments will be reviewed after a 12-month period. There will be a public consultation process, and members of the public will have the opportunity to provide feedback on how council meetings have operated under these regulations.

New provisions relating to livestreaming and recording of council meetings are also being progressed as part of the State Government’s local government reforms.

For further information, please see a copy of the Regulations and the explanatory notes below.

Local governments with any queries can contact DLGSC at info@dlgsc.wa.gov.au

Guidelines for Developing Policies on Electronic Attendance and Meetings

Explanatory notes

Citation

This clause sets out the citation title of the instrument — Local Government (Administration) Amendment Regulations 2022.

Commencement

This clause provides that the regulations will come into operation as follows:

• Part 1 and 2 — on the day on which the Local Government (Administration) Amendment Regulations 2022 are published in the Government Gazette.
• The rest of the regulations will take effect on the following day.

Regulations Amended

These regulations amend the Local Government (Administration) Regulations 1996.

Regulation 4

This regulation deletes regulations 14A and 14B which are outdated. These regulations deal specifically with attendance at a council or committee meeting by telephone. Instead, regulation 14C replaces regulations 14A and 14B and deals with attendance by electronic means, which may include attendance by telephone. As a result, the reference to a suitable place under regulation 14A is deleted. To assist with the decision-making process to authorise remote attendance, the mayor, shire president or council is required under subregulation (5) to consider whether the location from which the person intends to attend the meeting, and the equipment used, will enable effective communication during the meeting.

Regulation 5

Regulation 5 amends regulation 14C which deals with electronic attendance at council or committee meetings by inserting an additional provision that provides for attendance by electronic means outside of a declared emergency, by agreement. This amendment provides increased flexibility in relation to attendance at meetings and assists with achieving meeting quorums. The 50% cap on the number of meetings that an elected member, or committee member is permitted to attend remotely (by electronic means) is intended to strike a balance between the benefits of in-person meetings with the flexibility of remote attendance.

Regulation 14C(1) inserts a definition of a natural disaster, and a backward-looking test for determining how many council meetings a council member, or committee member has attended remotely by electronic means. The definition of a natural disaster is based on the description under repealed regulation 14B(1).

Regulations 14C(2) and (3) are deleted and replaced. Regulation 14C(2)(a) incorporates the previous provisions for electronic attendance due to a public health emergency or natural disaster. New regulation 14C(2)(b) enables a person to attend a meeting by electronic means outside of a declared public health emergency, state of emergency, or natural disaster with authorisation from either the mayor, shire president, or council. Regulation 14C(3) provides that a member may attend up to 50% of meetings by electronic means in a 12-month period. The 50% cap is determined by counting the number of meetings the member has already attended by electronic means in the preceding 12 months. The proposed meeting for which the member has requested to attend remotely is included in the calculation. A decision by the local government to authorise attendance by electronic means, can be made with a simple majority.

Regulation 14C(4) provides that the cap on electronic attendance does not apply to a person with a disability as defined in section 3 of the Disability Services Act 1993.

Regulation 14C(5) inserts the decision-making criteria that underpins the basis for a decision in response to a person’s request to attend a meeting by electronic means. The authorising authority (the mayor, shire president or council) is required to consider the person’s request with regard to the suitability of the person’s intended location and their equipment, to enable effective engagement in council deliberations. In effect, this regulation replaces the previous requirements for a suitable place under regulation 14A.

Regulation 6

Regulation 6 inserts regulation 14CA which sets out requirements in relation to attendance at meetings by electronic means. Regulation 14CA(1) refers to the types of meetings the regulations apply to. 14CA(2) requires the mayor, president or council to determine the electronic means by which a person may attend a meeting. This incorporates the existing options which include telephone, video, or any other form of instantaneous communication. 14CA(3) clarifies that a person is regarded as in attendance at a meeting, whether or not they are physically located in the State of Western Australia, provided they are in instantaneous contact with each other person in attendance at the meeting.

14CA(4)(a) and (b) relate to requirements under subregulations 14CA(5), (6) and (7) and relate to maintaining confidentiality during closed parts of meetings.

14CA(5) requires an elected member to declare before commencement of the meeting that they can maintain confidentiality during the meeting, or the closed part of the meeting, as the case requires, to discuss confidential agenda items. If the member cannot commit to maintaining confidentiality, they are required to remove themselves from the meeting prior to the closed part of the meeting.

Regulation 14CA(6) provides that an elected member who, after making a declaration is no longer able to maintain confidentiality, is required to leave the meeting prior to the closed part of the meeting.

14CA(7) requires the member’s declaration to be recorded in council minutes.

Regulation 7

Regulation 7 inserts additional provisions for meetings that are conducted entirely by electronic means under regulation 14D. Regulation 14D provides for a meeting of council or committee to be conducted by electronic means outside of a declared state of emergency. Regulation 14D(1) defines a relevant period in relation to the backward-looking test used to calculate how many electronic meetings a local government has conducted over the previous 12 months relative to the proposed meeting, and the 50% cap provided by regulation 14D(2A). Subsection 14D(2)(a)(ii) is amended to require the mayor, president or council to consider the requirements under subregulation 14D(2B) in deciding whether to conduct an electronic meeting. Regulation 14D(2B) requires the local government to consider the suitability of a person’s location and their equipment with respect to effective communication and confidential matters during a meeting.

Regulation 14D(2A) applies the 50% cap to the number of electronic meetings that a local government (council) may authorise outside of an emergency situation under subregulation (2)(c) over a 12-month period. The backward-looking test used to determine how many meetings have already been held by electronic means in the preceding 12 months applies in the same way it does for electronic attendance at in-person meetings.

Regulation 14D(2B) inserts the criteria that the authorising authority (the mayor, president or council) are required to consider before deciding to hold an electronic meeting. The authorising authority is required to consider each council or committee member’s ability to maintain confidentiality during closed parts of the meeting and the suitability of each person’s intended location and equipment to enable effective engagement in council deliberations. The authorising authority must have regard to these matters when deciding to hold and authorise electronic meetings. Electronic meetings held outside of emergency circumstances under subregulation 2(c) may only be approved by council.

Subregulations 14D(5)(a) and (b) insert subsections (6) to (8) that apply to closed parts of electronic meetings. Subsection (6) requires each member in attendance to make a declaration that they can maintain confidentiality during the closed part of the meeting. Subsection (7) requires that if a member makes a confidentiality declaration but is unable to maintain confidentiality subsequent to the declaration, they are required to leave prior to the closed part of the meeting. Subsection (8) requires a member’s declaration to be recorded in the meeting minutes.

Regulation 8

Regulation 8 amends regulation 14E which deals with modifications to the Act in relation to electronic meetings under section 5.25(2). Regulation 14E(1) inserts definitions that relate to a local government’s band allocation in accordance with the Salaries and Allowances Tribunal’s (SAT) band allocations. Regulation 14E(3) clarifies that regardless of a member’s physical whereabouts, a person who attends a meeting by the electronic means, as determined by the local government, is taken to be present for the purposes of the meeting regardless of whether they are in the state of Western Australia and provided they are in contact by those electronic means with each other member present.

Regulation 14E(3A) provides that an electronic meeting is considered to be open to the public in accordance with section 5.23(1) of the Act provided that:

1. in the case of a local government with a salary band 3 or 4 allocation, the requirement to publish unconfirmed meeting minutes within 14 days is complied with; or
2. in any case the council or committee broadcasts the meeting on a website, or the meeting, or a broadcast of the meeting is accessible to the public.