Bills

Local Government (Public Health Emergency) Amendment Bill

Standing Orders Suspension

The Hon. S.K. KNOLL (Schubert—Minister for Transport, Infrastructure and Local Government, Minister for Planning) (11:05): I move:

That standing orders be and remain so far suspended as to enable the introduction of a bill without notice forthwith and passage through all stages without delay.

The SPEAKER: There is an absolute majority present. I accept the motion. Is that seconded?

Honourable members: Yes, sir.

The SPEAKER: Are there any speakers? I will put it now.

Motion carried.

Introduction and First Reading

The Hon. S.K. KNOLL (Schubert—Minister for Transport, Infrastructure and Local Government, Minister for Planning) (11:06): Introduced a bill for an act to amend the Local Government Act 1999. Read a first time.

Second Reading

The Hon. S.K. KNOLL (Schubert—Minister for Transport, Infrastructure and Local Government, Minister for Planning) (11:07): I move:

That this bill be now read a second time.

The Local Government (Public Health Emergency) Amendment Bill 2020 will amend the Local Government Act 1999 to allow the minister to make a notice that varies or suspends the operation of specified provisions of the act during a public health emergency to allow councils to continue to operate and make critical decisions.

As all members know, we are facing an unprecedented public health emergency. Like state and federal government, councils are now planning how they must operate during the COVID-19 public health emergency. It is critical that they do so that they can continue to provide the essential services that our communities rely on. It is also critical that the state government take the steps that are necessary to support councils to continue to operate and make the decisions that are so vital to our local communities.

One important action that we need to take care of is to simply ensure that councils can continue to meet and make critical decisions. The bill proposes to give the minister a power to make notices that vary or suspend the operation of specific provisions of the act to allow councils to continue to operate and make critical decisions in a public health emergency.

Councils are rightly concerned that public health measures, such as requirements for people to self-isolate or restrictions on gatherings, may prevent council meetings from meeting quorum requirements under the act and therefore prevent critical decisions being made. This concern is generated by the fact that the act requires council members to attend ordinary and special meetings of council in person.

While members of council committees and subsidiaries can participate in meetings through electronic means, this is not available to council meetings to ensure both the highest integrity of council decisions and accountability and transparency of council activities. However, in a public health emergency, our priorities must be balanced.

I therefore propose that if this bill is passed by parliament, after the commencement of the new powers, I will immediately make a notice to allow council members to participate in council meetings through electronic means and make necessary variations to other meeting procedures to enable this. I am also aware that it is possible that, whilst this notice would be made to ensure that councils can meet quorum requirements, a situation may arise where a council or a number of councils cannot make quorum due to illness or other circumstances related to the public health emergency.

As the bill allows for the minister to make a notice varying or suspending the operation of any of the provisions of the act, I would consider making a notice to allow councils to make decisions inquorate, if absolutely necessary. I expect that a notice to this effect would only be made in exceptional circumstances, where a council's ability to form a quorum has been affected by illness and critical decisions must be made, particularly decisions that, under the act, councils cannot delegate to a chief executive officer or another body.

I am also aware that councils have raised concerns regarding their ability to comply with provisions of the act that require council meetings to be open to the public or to hold public meetings as part of required community engagement if restrictions on gatherings are in place to protect public health. It is not reasonable to expect councils to prioritise compliance with these provisions ahead of public health at this critical time.

However, the proposed amendments would allow this matter—or any other that may arise through a rapidly evolving public health crisis—to be addressed through a notice, if it is reasonably necessary. It will be possible to vary or suspend the operation of any part of the act, as necessary, to address public health concerns or to support councils to continue operating as effectively as possible.

I am aware that I am asking members to consider granting the minister a very wideranging power. That is why the bill includes several critical restraints to ensure that it strikes a balance between assisting councils and their communities in a responsive and timely fashion while ensuring that this power is used appropriately.

The first of these measures is that the minister will only have the power to make a notice when a public health emergency has been declared under section 87 of the South Australian Public Health Act 2011. The bill does allow for a circumstance where a public health emergency has been superseded by a declaration under the Emergency Management Act 2004; however, a notice cannot be made until a public health emergency has been declared.

Secondly, while a notice may specify a period for which it is in effect, it is important to note that all notices cease to have effect 28 days after the cessation of all declarations relating to the emergency to which the notice relates. Therefore, it will not be possible for a minister to make a notice that has longer-term impacts on the operation of the act.

The bill also allows for notices to be disallowed by parliament, under the Subordinate Legislation Act 1978. This will ensure the proper scrutiny and, if necessary, change of any notice made by the minister. The minister will also be required to consult with the Local Government Association before making a notice and cannot make a notice that imposes restrictions or limitations on the power of a council to impose rates and charges on land within its area. Finally, the notice can also include conditions that councils must comply with. I expect that these can be used to protect the openness and accountability of council decisions, if necessary.

I emphasise that this bill is brought before members for one reason: to enable councils to continue to operate effectively and make critical decisions during periods of public health emergencies. I would also like to add that this bill has been worked out in conjunction and lock step with the Local Government Association. They were the ones who came to us seeking this amendment. We know today that there is at least one notice that we need to make under these provisions in relation to councils still being able to meet. In discussions, even in the last two hours, there have been a number of other circumstances in relation to council business that will need to be explored over the coming weeks, and notices to be made under this provision, in order for councils to continue to function.

We are seeing, for instance, that state and federal governments around the country have delayed budgets. The Local Government Act provides for some very specific budget setting and process parameters that local governments need to operate within. This is an area that may need to be looked at and where it is important that this bill is able to be utilised. There have been concerns raised in the last 24 hours in relation to consultation requirements on a number of other matters, such as disability inclusion plans and others, and local government, through the LGA, have again come to us, seeking to have those concerns looked at.

It is very clear that this is an evolving health emergency that is going to require nimble action. What this provision does is provide the ability for local government to continue to operate to provide the essential services that we need them to operate under, whilst at the time ensuring that there are appropriate safeguards in place for this. I commend the bill to members. I seek leave to have the explanation of clauses inserted in Hansard without my reading it.

Leave granted.

Explanation of Clauses

Part 1—Preliminary 1—Short title 2—Amendment provisions

These clauses are formal.

Part 2—Amendment of Local Government Act 1999

3—Insertion of section 302B

This clause inserts a new section in the Act allowing the Minister, by notice, to vary or suspend the operation of provisions of the Act if that is reasonably necessary in response to an emergency that has been declared as a public health emergency (whether or not that is subsequently also declared under the Emergency Management Act 2004). The notice may apply to specified councils, or classes of councils, or to all councils and may operate subject to conditions. The notice is disallowable and may operate for up to 28 days after the end of the period of the declared emergency, provided that the variation or suspension of the specified provisions remains reasonably necessary as a result of the declared emergency.

The Hon. A. PICCOLO (Light) (11:14): Mr Speaker, I am the lead speaker and I indicate that, subject to discussions in the committee stage and perhaps amendments by the government, which may be foreshadowed, the opposition will be supporting the bill.

This proposal was flagged in the media a week to 10 days ago. The bill does go a bit further than was originally flagged in that media statement. Having said that, as the minister has indicated, the health emergency is an evolving matter and certainly the opposition will work with the government in a very constructive way to ensure that we keep our community safe.

For local government, that means that councils must be able to act very quickly at times and respond to emerging issues. While these powers would not be granted in a normal situation to a minister, certainly under the extraordinary circumstances in which we find ourselves at the moment, and right across the globe, we will consider those things.

That said, I agree with a lot of what the minister has said, but I indicate that we have to ensure that we have appropriate checks and balances because unfettered power can actually be open to abuse. I am not suggesting that the minister or any council would do that, but we need to make sure that we scrutinise the bill appropriately without unnecessarily delaying it. I put on the record that we will not act in a way that would in any way impinge upon either the minister's or the councils' ability to react quickly to an emergency situation or an emerging crisis. We have indicated that to the minister.

We have been having ongoing discussions with the minister's office. I thank the minister's office for those discussions. It would be fair to say that we have actually brought a few improvements to the bill as well. In fact, the original draft bill, which was approved by cabinet, did have an error in it, which one of my colleagues was able to pick up, and we gave some constructive feedback to the minister.

I have also discussed this with the LGA. We have put some suggestions regarding amendments to the bill to both the minister and the LGA. Some of those amendments have already been carried and are in the bill as presented to the chamber today. I thank the minister for taking those suggestions on board. I understand that there are a couple of other suggestions that have now been discussed within his office in terms of providing those initial checks and balances, which will not in any way impinge or fetter the minister's or councils' ability to act as required.

Those are the only comments I want to make, as I do not wish to delay the bill. I ask that we go through a quick committee stage to clarify some issues and also the minister can indicate where he is at with the further amendments, which would ensure that the bill passes the chamber before lunchtime.

Mr TEAGUE (Heysen) (11:18): I rise to support the speedy passage of the bill through the house. I note the remarks of the minister on introducing the bill. I recognise and acknowledge the opposition's support for the speedy passage of the bill and the contribution of the member for Light to that end.

I want to highlight that these are measures to respond to extraordinary times. To emphasise that point I refer specifically to the provisions of section 87 of the South Australian Public Health Act 2011 that provide for public health emergencies. I do that for the purposes of the record and for those who may be following parliament in these days that are particularly testing for public authorities. Section 87 provides for the declaration relevantly of an emergency as a public health emergency. It provides for the chief executive to make that declaration, with the approval of the minister. As South Australians will be aware, such a declaration has been made in response to the emergency that faces us in dealing with the coronavirus COVID-19.

In such circumstances the new section 302B, which is the subject of clause 3 of the bill, will provide additional powers to the minister by notice in a Gazette to suspend or vary specified provisions of the Local Government Act 1999. The minister has already outlined the practical purposes for which such a notice varying or suspending those provisions would, in all expectation, go to in the first instance at least. This is all about making sure that local government continues to function. It is all about facilitating the capacity for local councils to meet in order to carry out necessary business, and that includes, as the minister has adverted to, the basic financial functioning, the making of budgets and so forth.

I note, and the minister has already made reference to this as well, the important requirement that the minister consult with the Local Government Association before making a notice under this section. I note as well that that has occurred already in relation to the formulation of this bill. I am pleased that that has occurred, and note that that provision will apply when notices are contemplated and prior to a notice being made.

It is also important to note that, in the course of addressing what these new powers will provide for in section 302B, they will apply for a period that is specified but, in all events, will end 28 days after the cessation of all relevant declarations relating to the emergency to which the notice relates. Clearly, both the power and the period during which the notice will apply, once made, are tied to the relevant public health emergency. It is for that reason that I emphasise at the outset the importance of understanding the connection to section 87 of the South Australian Public Health Act 2011 and to the relevant periods during which that may apply.

These are extraordinary circumstances. The parliament meets in these circumstances in order to enact provisions necessary for the orderly continuation of government, public and civic life. This is one such provision. I anticipate that during the course of the sitting now there will be other matters of a similar character, and I stand ready to support their passage also. With those brief remarks by way of contribution, I again commend this bill to the house.

Mr PEDERICK (Hammond) (11:24): I rise to support the Local Government (Public Health Emergency) Amendment Bill 2020. I acknowledge the way that parliament has started off today and thank the opposition and the crossbench for how we are moving forward in these interesting times. This bill proposes to amend the Local Government Act 1999 to ensure council meeting continuity during public health emergencies—and these are different times, Mr Speaker. To address concerns arising out of the COVID-19 issue, it is proposed to amend the act to insert a provision for the minister to have a power to make a notice for a specified period to vary or suspend provisions of the Local Government Act 1999 as specified in the notice.

It is proposed that the minister may only exercise this power in circumstances in which a public health emergency has been declared. The intent of this amendment is to enable councils to continue to operate effectively and make critical decisions during periods of public health emergencies. I think this is absolutely critical for our sector, that the government is at the ground floor in this state so that they can keep functioning and doing the right things for our communities.

It is proposed in the first instance that a notice will allow council members to participate in council meetings through electronic means, as this is currently not possible under the act. This will better position councils to meet quorum requirements in circumstances where measures to protect public health may otherwise prevent this.

A notice may also provide the minister with the ability to allow councils to transact business at a council meeting if a quorum is not present. As the intent of the proposed allowance of electronic attendance is to ensure that councils can continue to maintain quorum, it is expected that a notice to this effect would only be utilised as a last resort, where councils are unable to make quorum due to illness or other good reason and must make critical decisions that they have been unable to delegate.

The act requires councils to have at least monthly ordinary council meetings and also enables councils to have special council meetings and establish council committee subsidiaries and regional subsidiaries that also meet regularly. The act also allows for members of council committees, subsidiaries and regional subsidiaries to meet via electronic means such as telephone or videoconferencing. However, and this is the nub, this is not the case for council meetings, whether they be ordinary or special. Council members are required to attend council meetings in person to participate in decisions and to make quorum, which is half of the total number of council members plus one. Any public health measure that prevents the attendance in person by council members at meetings could affect councils' ability to meet this requirement.

To date, it has not been viewed as desirable to allow council members to participate in council meetings via electronic means, to ensure both the integrity of council decisions (through, for example, proper management of conflict of interest declarations) and the proper transparency and accountability of council actions. That is something at every level of government we must hold dear; I absolutely get that we have to have transparency and accountability. However, given that the public health measures that are now in place and that may increase in future pose a significant risk that councils will be unable to make critical decisions through lack of quorum, it is recommended that action be taken to allow council members to participate in council meetings via electronic means for a period of time.

It is proposed that a notice published under the proposed amendment will allow council members to participate in council meetings through electronic means for a specified period of time. This will mean that councils can meet quorum requirements without personal attendance at meetings. The bill also provides the minister with the ability to make a notice to enable councils to make decisions when the requirements for quorum are not met. It is expected that a notice to this effect would only be made in exceptional circumstances—and I stress, in exceptional circumstances—where councils cannot form a quorum due to illness and must make decisions that they are unable to delegate.

Section 90(1) of the act also requires councils to conduct council meetings in a place open to the public. Some councils have raised concerns that requirements regarding social distancing or prevention of public gatherings may cause them to be noncompliant with this requirement. This may also be true of other legislative requirements regarding public engagement such as the requirement to hold a public meeting to consult on councils' draft annual business plans, for example, and to make council offices open to the public.

However, councils would be expected to manage these matters utilising the powers they have under section 37 of the South Australian Public Health Act 2011 to have adequate measures in place within its area to ensure that activities do not adversely affect public health. It is expected that this would be a consistent approach to that taken by the state government where similar requirements apply to the operation of specific agencies or entities.

It is, therefore, not expected that it would be necessary to make a notice to suspend these legislative requirements. However, the proposed amendment does include the ability for the minister to make a notice related to any provisions under the act. These matters or any others that may arise through a rapidly evolving public health emergency can therefore be addressed if necessary. The utilisation of a notice to be published in the Gazette as the instrument to vary or suspend provisions of the act as needed will also enable swift action to be taken as necessary.

It should also be noted that the duration of any notice published under the amended act can only be made if a public health emergency has been declared under section 37 of the South Australian Public Health Act 2011 and cannot remain in force for a period that exceeds 28 days following the revocation of the relevant declaration. These limits provide assurance that any variations or suspension of legislative requirements on councils will only be made due to a public health emergency and will only be in force for the emergency period with a short additional time to readjust to normal practices if so required. I acknowledge that the Local Government Association has been consulted in regard to this legislation.

These are interesting times. It is a time when we must be strident in how we approach our health at any level. I applaud what Premier Marshall is doing, as well as the whole government, in tackling COVID-19. It is an unfolding scenario. This legislation will help keep local government operating. Part of what I say in my office and outside my office is that no matter what we are dealing with, we need to keep calm and carry on. No matter what is going on, as I saw in a letter to the editor in The Advertiser the other day, no matter what is happening with this issue or any other issue, we still need to live and we still need to function, and that is absolutely so.

We must take all advice as it comes in, as the parliament has with social distancing and having fewer members in the chamber with 20 fewer for however long we sit this week. I would like to again commend the Premier. I commend the state's Chief Public Health Officer, Dr Nicola Spurrier. She is doing a sterling job in trying conditions. Everyone involved in our health positions, whether they are in our education positions, people who have to work in the public sphere at any level are doing a sterling job in difficult times. We will get through this; it will take some time. It is legislation like this that helps the local government sector to keep functioning, as we all need to function, now and into the future, because we will have a bright new dawn not too far down the track. I commend the bill.

The Hon. S.K. KNOLL (Schubert—Minister for Transport, Infrastructure and Local Government, Minister for Planning) (11:34): I would like to thank everybody for their contributions on this bill. I would also like to thank the member for Light for his help and cooperation over the past 24 hours. It seems like a lot longer than that. It is certainly good to see that during these times we can get on and show the people of South Australia that we can work together to get stuff done.

I just want to echo the points from the member for Hammond in relation to this. We are dealing with a very difficult and evolving situation and I have no doubt it is going to get worse before it gets better. But it will get better and, at that point, because of all the work that has been done now to deal with this issue as it stands, we will come out the other side of this roaring, with a society and an economy that can get moving very quickly. I commend the bill to the house.

Bill read a second time.

Committee Stage

In committee.

Clauses 1 and 2 passed.

Clause 3.

The Hon. S.K. KNOLL: I move:

Amendment No 1 [TransInfrLocalGov-1]—

Clause 3, inserted section 302B—After subsection (7) insert:

(8) This section will expire on 31 December 2021.

(9) The Minister must cause a review of the operation of this section to be commenced at least 6 months before the day specified in subsection (8) and the Minister must cause a report on the outcomes of the review to be tabled in each House of Parliament within 12 sitting days after receiving the report (and in any case before the day specified in subsection (8)).

This amendment introduces a requirement for the minister to cause a review of the operation of this section to commence at least six months before the day specified in subsection (8), which is 31 December 2021. To speak briefly to this, there is a natural tension here in what is seeking to be achieved today, to give power and flexibility to a government to help enable the local government sector to operate, as there is a countervailing tension in that what we do not want to give is unilateral power to a minister.

I completely agree and understand that, and over the course of the past 48 hours a number of things have been inserted in relation to making the Gazette notice disallowable in excluding the ability for the government to issue a notice, causing restrictions on the ability for councils to tell them how they can collect rate revenue.

Inherent in the bill is the fact that this is only related to a public health emergency. We wanted to be very clear about that. The Local Government Act has been shown to be robust and operates effectively in all kinds of emergencies: bushfires, earthquakes, floods and the like. This is something that is different and that is why we have made it specific to a public health emergency. We have obviously given ourselves flexibility where a public health emergency turns into a major emergency declaration. In that instance, we have confined it to the public health emergency.

We have also made it that any notice made under this provision automatically expires 28 days after the lifting of that public health or major emergency declaration. We did this because anything that comes in under this section has to be temporary. It also has to be reasonably necessary. We also have to consult with the LGA. Any government or minister who thought that this was an opportunity to make a permanent policy change would find that all of that activist work would be undone as the public health emergency is lifted and the notices are then also lifted. I think we have struck the right balance here and it is something that we have worked together with the opposition on.

The Hon. A. PICCOLO: I indicate that we will be supporting this amendment. We think this strikes a reasonable balance between giving, as the minister indicated, unfettered powers to a minister and the local government to act. We understand that it is only in the context of a public health emergency. Having said that, I think that in a democratic society we always need to make sure there are appropriate checks and balances. Those appropriate checks and balances will be different for different times and different locations, and we recognise that.

Again, I put on the record my thanks to the minister and his staff for considering the concerns we raised during the briefing and subsequently in discussions. We appreciate the fact that both the minister and the LGA have taken on those proposed changes to the bill and we can support this amendment.

Amendment carried.

The Hon. A. PICCOLO: I have a couple of questions. For the purposes of the record, in terms of clause 3, what sort of conditions is the minister likely to attach to ensure transparency and accountability of local government decisions?

The Hon. S.K. KNOLL: Certainly, that is an issue. I think what we are all getting at here is the fact that the public is normally allowed into a council meeting. Quite clearly, that cannot be allowed to continue in the context of public gatherings. That is something that we are looking to explore. What we would be seeking to do is to require a video or some sort of recording of the meetings so that they can be maintained for posterity, and then to ensure obligations for that to be shared on a council website or the like.

The Hon. A. PICCOLO: Thank you, minister, for that answer. Where the councils have the capacity—and I do differentiate; some councils will have the capacity and some will not, so I do not wish to unfairly burden some of those smaller councils—in the minister's view, can that information be live, in other words, in the same way we are? There will be a number of councils that can actually do that live, and it would be great to maximise accountability and transparency to the extent possible.

The Hon. S.K. KNOLL: Essentially, yes. For those that can use video, we would be requiring that. Adelaide city council do this, for those of us who like to tune in for a bit of fun on a Tuesday night. That will obviously need to continue, and we will obviously need to make allowances for those that cannot.

Last night, we had videoconferencing set up by the LGA, with basically every council on the line. I would like to work with the LGA to help councils improve and advance that. They certainly have the technology. It is just about getting that out there as soon as possible. I agree that there is a balance here between trying to push councils to be as open and transparent as possible but also trying to get it done in a period of time.

The other thing is that what this clause allows us to do is to make a notice for a council, a class of councils or all councils. There is an ability there to split them up, so that a class of councils that has video has to do it. For the ones that do not, we will look at what other arrangements we can make.

The Hon. A. PICCOLO: I would like to make a comment in terms of the new additional clause. We have requested a review, because we think this is an opportune time. While there is an emergency to be dealt with, there is an opportunity for us to learn as well. I think this may become a feature in the future of some reform of the Local Government Act, so that we do not have to come back every time there is an emergency to do this. That review is very important, in the sense that it will give us advice and throw up any issues that come up, which means down the track we may have an ongoing provision in the act.

Clause as amended passed.

Title passed.

Bill reported with amendment.

Third Reading

The Hon. S.K. KNOLL (Schubert—Minister for Transport, Infrastructure and Local Government, Minister for Planning) (11:45): I move:

That this bill be now read a third time.

Bill read a third time and passed.