Presented to Moorabool Shire Councilby

Terry BramhamMacquarie 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 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 make local laws governing the conduct of meetings of the Council (and special committees) (s91(1) LGA)

Open and closed, ordinary and special, Council meetings

Meetings of special committees

Does not apply to:◦ Advisory or audit committee meetings◦ Council staff exercising delegated authority◦ Assemblies of 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 –

◦ to CEO in writing before the meeting advising – type of interest (direct or indirect) class of interest if indirect (1 of 6) description of 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 of interest (direct or indirect) class of interest if indirect (1 of 6) description of 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 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 Councillors are present and unanimously agree to deal with additional business

Meetings must be open to the public - s89(1)

Unless Council has 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 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 – contained in an officer report

Motion – moved by a Councillor

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 Councilby

Terry BramhamMacquarie Local Government Lawyers

9 November 2016