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Intro
Section 58 of the Local Government Amendment Act 2023 (the Amendment Act) inserts a new section 5.23A into the Local Government Act 1995 (the Act) covering electronic broadcasting (livestreaming) and video and audio recording of council meetings.
Section 5.23A(2) of the Act is a power that allows regulations to be made that may require, regulate, or otherwise make provision for any of the following matters:
The requirements for livestreaming and recording of council meetings are aimed at increasing transparency and accountability in local government. This reform will also increase access to council meetings.
Requirements for livestreaming and recording apply differently depending on a local government’s class.
A list of all local governments and their respective classes are prescribed in Schedule 2 of the Local Government (Constitution) Regulations 1998 and on the Department of Local Government, Sport and Cultural Industries (DLGSC) website.
The Local Government Regulations Amendment Regulations (No. 3) was published on 18 October 2023. Section 58 of the Amendment Act was commenced on 19 October 2023, as part of the Local Government Amendment Act 2023 Commencement Proclamation (No. 3) 2023.
Part 2A of the Local Government (Administration) Regulations 1996 (the Administration Regulations), titled Electronic broadcasting and video or audio recording of council meetings, will apply to meetings of council held on or after 1 January 2025.
Local governments can livestream or record council meetings before this commencement date.
The requirements for livestreaming and recording commence on 1 January 2025.
While section 5.23A of the Act provides regulation-making powers to deal with the broadcasting and recording of committee meetings, the requirements set out in the regulations apply only to council meetings – ordinary council meetings and special council meetings.
There is no legislative requirement under the regulations to livestream or record committee meetings. However, local governments may choose to do so.
It is important to note that the existing requirements for electronic meetings and electronic attendance at meetings continue to apply to committee meetings.
Local governments are not required to livestream or record committee meetings.
Technical specifications for broadcasting and recording council meetings are not prescribed to allow local governments flexibility to use equipment that best meets their needs.
The minimum requirement is that recordings are of a standard that enable people to effectively watch (if video is required) and listen to council meeting proceedings.
Regulation 14H of the Administration Regulations requires class 1 and 2 local governments to broadcast meetings of council electronically.
Electronic broadcasting is defined in section 5.23A(1) of the Act as 'broadcasting by way of the internet or other electronic means.'' Another common term for electronic broadcasting is 'livestreaming'.
Class 1 and 2 local governments are required to broadcast (livestream) council meetings from the council’s usual meeting place. As the term suggests, this is the place where the council ordinarily holds council meetings, noting that some local governments may sometimes hold meetings in different locations.
Local governments are also required to broadcast meetings conducted entirely by electronic means (electronic meetings) in accordance with the existing requirements of the Administration Regulations.
Class 1 and 2 local governments are required to broadcast video and audio of council meetings.
Where a council member attends a council meeting remotely by electronic means, the minimum requirement is for an audio broadcast of that council member.
Although class 1 and 2 local governments are required to livestream and record both video and audio of electronic council meetings, there is no legislative requirement for a council member to participate with a live video feed (for example, webcam).
Audio participation is the acceptable minimum standard for council members attending meetings remotely. This minimum requirement acknowledges that there are certain circumstances where video participation may not be necessary or practical due to available technology or internet connectivity.
For example, if a person’s camera fails, or is turned off momentarily, the recording requirements of the meeting have been satisfied if they are in audio contact with all other meeting participants.
Regulation 14I of the Administration Regulations requires class 1 and 2 local governments to make and retain video and audio recordings of council meetings for a period of up to 5 years. Class 3 and 4 local governments are required to make and retain audio recordings of council meetings, at a minimum.
Recordings of council meetings must be published on the local government’s website or another external website with a link placed on the local government’s website.
The recording must be published within 14 days of the meeting taking place.
There may be circumstances where local governments are required to provide a copy (for instance, downloadable file) of a council meeting recording at the request of the DLGSC’s Director General.
Both audio and video recordings must be of a quality sufficient to effectively watch (if applicable) and listen to the deliberations and communications that are part of the meeting proceedings. This standard requirement is consistent with the existing requirements for electronic attendance and electronic meetings.
Meeting recordings can be regarded in a similar way to the taking of meeting minutes. It is the responsibility of council to record the meeting. However, in practice, the local government administration would be performing the task of organising the recording.
All local governments are required to retain recordings of council meetings for a period of 5 years Recordings of open proceedings are to be published on the local government’s website.
If a meeting is held outside of the council’s usual meeting place, the minimum requirement for all classes of local government is for an audio recording to be made.
If a local government regularly holds council meetings at different meeting locations where recording technology is not installed, appropriate portable recording technology should be utilised to ensure that meetings can be recorded with sufficient quality.
Portable recording technology can also be used for improvised recordings in the case of technological failure.
If livestreaming technology fails, a local government may decide to continue with the meeting. However, the local government must publish the reasons why the meeting was unable to be broadcast on its official website within 14 days of the meeting taking place.
If technology failure prevents a council meeting (or part of a meeting) from being recorded, the meeting may still proceed if the local government does everything reasonably practicable to make an improvised recording of the meeting.
The quality of the improvised recording must be of a quality sufficient to effectively watch and listen to the deliberations of the council meeting.
If a council meeting is recorded by improvised recording, the local government must publish a notice on the local government’s website stating the following:
If a local government was unable to make an improvised recording, the local government must publish a notice on the local government’s website stating the following:
In the event of a technology failure for recording, local governments are to make an improvised recording or otherwise publish the reasons why they were unable to make a recording.
Local governments must not publish recordings of closed proceedings of council meetings where confidential matters are deliberated by council (see section 5.23(2) of the Act).
As a minimum standard for all classes of local governments, audio recordings of closed proceedings of a council meeting are required under regulation 14I(2)(a)(ii) of the Administration Regulations.
Local governments must audio record closed proceedings.Local governments must not livestream or publish recordings of closed proceedings.
Local governments must provide public access to electronic broadcasts and recordings of council meetings through their website. Public access may be provided by making a broadcast or recording available to view on the local government’s website, or alternatively by providing a link on the local government’s website to the broadcast or recording on another external website. Local governments are required to provide notice to members of the public that broadcasts and recordings of council meetings will be made.
Regulation 14J of the Administration Regulations requires a local government to take reasonable steps to notify members of the public in attendance at a council meeting, that either or both of the following applies:
The notice must be provided in advance of the meeting taking place. In practice, this may take the form of a sign or notice at the entrance to the council chamber. Presiding members may also wish to notify members of the public in their announcements at the beginning of a meeting.
In the case of video broadcasts and recordings, members of the public do not need to visible but do need to be heard if they are participating in the meeting (for example, public question time).
Section 9.57A of the Act provides local governments with protections from liability for defamation in relation to broadcasts of council meetings.
Regulation 14K of the Administration Regulations provides a defamation protection for local governments in relation to the electronic broadcasting or recording requirements.
As a further practical safeguard, it is recommended that local governments do not provide the option for members of the public to provide comments in relation to livestreams or recordings (for example, turning off comments in the settings options for the livestreaming or recording platform).
Regulation 14I of the Administration Regulations requires local governments to retain recordings of council meetings for a period of 5 years.
Local governments should retain recordings of meetings in accordance with the State Records Act 2000.