LOCAL GOVERNMENT (RATEPAYER PROTECTION AND RELATED MEASURES) AMENDMENT BILL 2018

Commission or Local Government Commission means the South Australian Local Government Grants Commission established under the South Australian Local Government Grants Commission Act 1992

;

5—Insertion of section 8A

After section 8 insert:

8A—Annual review of performance of councils

(1) The Local Government Commission must prepare and publish a document to be called the Annual Review of SA Council Performance setting out—

(a) quantitative performance indicators relating to the delivery of services to the community by councils; and

(b) requirements relating to the keeping and provision of information by councils which can be used for cross-council performance comparisons.

(2) Without limiting subsection (1)

, the quantitative performance indicators will be based on the following:

(a) quality and cost standards for services;

(b) equity of service delivery;

(d) complaint handling processes (including the timeliness of dealing with and resolving complaints);

(e) any other indicators considered relevant by the Commission.

(3) The Commission may from time to time alter the Annual Review of SA Council Performance document, or substitute a new Annual Review of SA Council Performance document.

(4) However, before publishing, altering or substituting the Annual Review of SA Council Performance document, the Commission must consult with the LGA on the document or alteration and consider any submission made by the LGA within a period (of between 3 and 6 weeks) specified by the Commission.

(5) A council must provide an annual report to the Commission by a date determined by the Commission that—

(a) sets out the information required by the Commission in the manner and form required by the Commission; and

(b) complies with any other requirements of the Commission.

(6) If, in the opinion of the Commission, the performance indicators provided by a council raise significant concern about the performance of the council, the Commission may refer the matter to the chief executive of the designated administrative unit.

(7) On a referral under this section, the chief executive of the designated administrative unit must inquire into and provide a report to the Minister on the performance of the council, having regard to the performance indicators provided by the council.

(8) A report under subsection (7)

must be published on a website determined by the chief executive of the designated administrative unit at the same time as it is provided to the Minister.

(9) In this section—

designated administrative unit means—

(a) the administrative unit of the Public Service known as the Office of the South Australian Productivity Commission; or

(b) if the administrative unit referred to in paragraph (a)

ceases to exist—the administrative unit of the Public Service that is responsible for assisting a Minister in the administration of this Act.

6—Amendment of section 50—Public consultation policies

Section 50(4)—after paragraph (a) insert:

(ab) the prominent publication on Internet platforms (such as social media) of notification of—

(i) the fact of publication of the notice under paragraph (a); and

(ii) the website address at which the notice is available for inspection; and

7—Amendment of section 56—General election to be held in special case

(1) Section 56—after subsection (1) insert:

(1a) If the prescribed number of members of a council, other than an exempt council, pass a resolution of no confidence (however described) in the principal member of the council, the chief executive officer of the council must, by notice in the Gazette, declare that the council is a council to which this Division applies.

(2) Section 56(2)—after "subsection (1)" wherever occurring insert in each case:

or (1a)

(3) Section 56(3)—before the definition of prescribed number insert:

exempt council means a council constituted on the basis that the principal member is to be chosen by the members of the council;

8—Amendment of section 62—General duties

(1) Section 62—after subsection (2) insert:

(2a) If a prescribed authority determines that a complaint lodged with the prescribed authority by a member of a council alleging that another member of the council has contravened or failed to comply with the code of conduct under section 63 is a frivolous or vexatious complaint, the member that made the complaint is guilty of a breach of this subsection.

(2b) Subject to subsection (2c)

, a member of a council must not undertake overseas travel that is or will be funded in whole or in part by the council, unless the council has, prior to the commencement of the travel, passed a resolution approving the travel.

(2c) It is not a breach of subsection (2b)

if a member of a council undertakes overseas travel of a kind referred to in that subsection without prior approval in accordance with subsection (2b)

if—

(a) as a result of exceptional circumstances, it was not reasonably practicable for the travel to be approved in accordance with subsection (2b)

; and

(b) the travel is approved by resolution of the council passed within 7 days of conclusion of the travel.

(2d) If a member of a council undertakes overseas travel that is or will be funded in whole or in part by the council, the member must ensure that a report prepared by the member setting out the actual cost of the travel and the outcomes achieved by the undertaking of the travel is submitted to the council for consideration at a meeting of the council occurring within 2 months of the conclusion of the travel.

(2e) If the period of 7 days referred to in subsection (2c)

or 2 months referred to in subsection (2d)

would, but for this subsection, expire in a particular case during an election period for a general election, that period will be extended by force of this subsection so as to expire 7 days or 2 months (as the case requires) from the conclusion of the election period.

(2) Section 62—after subsection (7) insert:

(8) In this section—

cost of the travel includes accommodation costs and other costs and expenses associated with the travel;

election period, for a general election, means the period commencing on the day of the close of nominations for the election and expiring at the conclusion of the election;

prescribed authority—each of the following is a prescribed authority:

(a) the Local Government Commission;

(b) the Ombudsman;

(d) the Office of Public Integrity;

(e) the Minister;

(f) a council;

(g) a chief executive officer of a council.

9—Insertion of sections 79A to 79C

After section 79 insert:

79A—Publication of credit card expenditure

(1) A council must, within 14 days after the end of each month, publish in a prominent location on its website the following details in relation to each credit card provided by the council for use by a member of the council:

(a) the name of each member entitled to use the credit card;

(b) a statement of expenses for the month incurred using the credit card.

(2) Any details published under subsection (1)

must remain available on the website for inspection by members of the public for a period of 5 years from the date of publication.

(3) A council must ensure that a link to the website address at which the details published under subsection (1)

are available for inspection is prominently published on Internet platforms (such as social media).

79B—Publication of travel by members

(1) A council must, within 14 days after the end of each month, publish in a prominent location on its website information as to the particulars (including the cost) of any travel beyond the limits of South Australia undertaken by a member of the council during the month that was, or will be, funded in whole or in part by the council, and for the purposes of this section, cost of travel—

(a) includes accommodation costs and other costs and expenses associated with the travel; but

(b) does not include land based travel costs.

(2) Any details published under subsection (1)

must remain available on the website for inspection by members of the public for a period of 5 years from the date of publication.

(3) A council must ensure that a link to the website address at which the details published under subsection (1)

are available for inspection is prominently published on Internet platforms (such as social media).

(4) In this section—

land based travel costs means costs of travel attributable to transportation by road, rail or other means of transport on land.

79C—Publication of certain gifts funded by council

(1) A council must, within 14 days after the end of each month, publish in a prominent location on its website information as to the particulars (including the cost) of any gift provided to a member of the council during the month that was, or will be, funded in whole or in part by the council.

(2) Any details published under subsection (1)

must remain available on the website for inspection by members of the public for a period of 5 years from the date of publication.

(3) A council must ensure that a link to the website address at which the details published under subsection (1)

are available for inspection is prominently published on Internet platforms (such as social media).

10—Amendment of section 90—Meetings to be held in public except in special circumstances

(1) Section 90(3)(b)—delete paragraph (b)

(2) Section 90(3)(d)—delete paragraph (d) and substitute:

(d) commercial information of a confidential nature (not being a trade secret) the disclosure of which—

(i) might reasonably be expected to prejudice the future supply of such information to the council; and

(ii) would, on balance, be contrary to the public interest;

(3) Section 90(7)—after paragraph (c) insert:

; and

(d) the name of each member who voted on the resolution in relation to the making of the order and whether the member voted in favour of or against that resolution.

(4) Section 90—after subsection (7) insert:

(7aa) If a resolution is passed at a meeting while an order is in force under subsection (2), a note must be made in the minutes specifying—

(a) the fact that the resolution was passed; and

(b) the name of each member who voted on the resolution and whether the member voted in favour of or against that resolution.

11—Amendment of section 91—Minutes and release of documents

Section 91(8)—after paragraph (c) insert:

; or

(d) to prevent the disclosure of a note made in minutes for the purposes of section 90(7)(d) or (7aa).

12—Amendment of section 95—Conduct at meetings

Section 95—after its present contents (now to be designated as subsection (1)) insert:

(2) A member of a council or council committee must not, while at a meeting of the council or council committee—

(a) behave in an improper or disorderly manner; or

(b) cause an interruption or interrupt another member who is speaking.

(3) Subsection (2)(b)

does not apply to a member who is—

(a) objecting to words used by a member who is speaking; or

(b) calling attention to a point of order; or

(4) If the presiding member considers that a member may have acted in contravention of subsection (2)

, the member must be allowed to make a personal explanation.

(5) If the presiding member considers that a contravention of subsection (2)

has occurred, the presiding member may—

(a) censure the member; or

(b) suspend the member for a part, or for the remainder, of the meeting.

(6) A member must not enter a meeting in contravention of a suspension under subsection (5)

13—Insertion of section 95A

After section 95 insert:

95A—Petitions

(1) A council must not refuse to receive a petition submitted to the council on the basis that the petition does not comply with a requirement of the regulations, unless the council is satisfied that the failure to comply with the requirement was calculated to mislead the council.

(2) A council must, within 60 days of receipt of a petition to the council, ensure that—

(a) the petition is considered at a meeting of the council; and

(b) a response to the petition is provided to the petitioner listed first in the petition.

14—Insertion of sections 99A and 99B

After section 99 insert:

99A—Remuneration of chief executive officer

(1) Subject to any relevant Act or industrial instrument, the remuneration of a chief executive officer must only be comprised of 1 or more of the following:

(a) salary and superannuation contributions;

(b) a vehicle (or vehicle allowance);

(c) information and communications technology (ICT) equipment reasonably required for the performance of the chief executive officer's functions (or an allowance for reasonably required ICT equipment).

(2) Nothing in this section affects a chief executive officer's entitlement to recreation leave, sick leave, long service leave or other leave (or to any payment in lieu of such leave).

(3) This section only applies to the remuneration of a chief executive officer appointed, or reappointed following the completion of a term of office, after the commencement of this section.

99B—Publication of employment contract of chief executive officer

(1) A council must, within 14 days after entering into or renewing a contract of employment with a chief executive officer, publish the contract in a prominent location on its website .

(2) A contract published under subsection (1)

must remain available on the website for inspection by members of the public for a period of 5 years from the date of publication.

(3) A council must ensure that a link to the website address at which a contract published under subsection (1)

is available for inspection is prominently published on Internet platforms (such as social media).

(4) This section applies to a contract of employment with a chief executive officer whether the contract was entered into before or after the commencement of this section.

15—Amendment of section 105—Register of remuneration, salaries and benefits

Section 105(3) and (4)—delete subsections (3) and (4) and substitute:

(3) The chief executive officer must ensure that the Register of Salaries is published in a prominent location on the council's website.

16—Insertion of sections 105A and 105B

After section 105 insert:

105A—Publication of credit card expenditure

(a) the title of the position of each employee entitled to use the credit card;

(b) a statement of expenses for the month incurred using the credit card.

(2) Any details published under subsection (1)

must remain available on the website for inspection by members of the public for a period of 5 years from the date of publication.

(3) A council must ensure that a link to the website address at which the details published under subsection (1)

are available for inspection is prominently published on Internet platforms (such as social media).

105B—Publication of certain gifts funded by council

(1) A council must, within 14 days after the end of each month, publish in a prominent location on its website the following details in relation to each gift provided to an employee of the council during the month that was, or will be, funded in whole or in part by the council—

(a) the title of the position of the employee to whom the gift was given;

(b) a description (including the cost) of the gift.

(2) Any details published under subsection (1)

must remain available on the website for inspection by members of the public for a period of 5 years from the date of publication.

(3) A council must ensure that a link to the website address at which the details published under subsection (1)

are available for inspection is prominently published on Internet platforms (such as social media).

17—Amendment of section 109—General duty

Section 109—after subsection (2) insert:

(3) Subject to subsection (4)

, an employee of a council must not undertake overseas travel that is or will be funded in whole or in part by the council, unless the council has, prior to the commencement of the travel, passed a resolution approving the travel.

(4) It is not a breach of subsection (3)

if an employee of a council undertakes overseas travel of a kind referred to in that subsection without prior approval in accordance with subsection (3)

if—

(a) as a result of exceptional circumstances, it was not reasonably practicable for the travel to be approved in accordance with subsection (3)

; and

(b) the travel is approved by resolution of the council passed within 7 days of conclusion of the travel.

(5) If an employee of a council undertakes overseas travel that is or will be funded in whole or in part by the council, the employee must ensure that a report prepared by the employee setting out the actual cost of the travel and the outcomes achieved by the undertaking of the travel is submitted to the council for consideration at a meeting of the council occurring within 2 months of the conclusion of the travel.

(6) If the period of 7 days referred to in subsection (4)

or 2 months referred to in subsection (5)

(7) In this section—

cost of the travel includes accommodation costs and other costs and expenses associated with the travel;

election period, for a general election, means the period commencing on the day of the close of nominations for the election and expiring at the conclusion of the election.

18—Amendment of section 115—Form and content of returns

(1) Section 115(1)—delete "A" and substitute:

Subject to subsection (1a), a

(2) Section 115—after subsection (1) insert:

(1a) A return must include information as to the particulars (including the cost) of any travel beyond the limits of South Australia undertaken by the person submitting the return during the return period that is, or is to be, funded in whole or in part by the council, and for the purposes of this paragraph cost of travel includes accommodation costs and other costs and expenses associated with the travel.

19—Insertion of Chapter 7 Part 4 Division 2A

Chapter 7 Part 4—after Division 2 insert:

Division 2A—Travel by employees

119A—Travel by employees

(1) A council must—

(a) within 14 days after the end of each month, publish in a prominent location on its website information as to the particulars (including the cost) of any travel beyond the limits of South Australia undertaken by an employee of the council during the month that was, or will be, funded in whole or in part by the council; and

(b) within 3 months after the end of each financial year, publish in a prominent location on its website information as to the particulars (including the cost) of any travel beyond the limits of South Australia undertaken by an employee of the council (other than a person to whom Division 2 applies) during the financial year that was, or will be, funded in whole or in part by the council.

(2) Any details published under subsection (1)

—

(a) must not disclose the name of the employee who undertook the travel, but must instead refer to the title of the position of the employee; and

(b) must remain available on the website for inspection by members of the public for a period of 5 years from the date of publication.

(3) A council must ensure that a link to the website address at which the details published under subsection (1)

are available for inspection is prominently published on Internet platforms (such as social media).

(4) In this section—

costs of travel—

(a) includes accommodation costs and other costs and expenses associated with the travel; but

(b) does not include land based travel costs;

land based travel costs means costs of travel attributable to transportation by road, rail or other means of transport on land.

20—Amendment of section 123—Annual business plans and budgets

(1) Section 123(2)—after paragraph (b) insert:

(ba) identify activities or works relating to the maintenance, replacement or development of infrastructure outlined in 1 or more of the 3 preceding annual business plans or budgets adopted by the council that have not been substantially completed in accordance with the relevant plan or budget; and

(2) Section 123(2)—after paragraph (e) insert:

(ea) include estimates of the revenue and expenses, and the financial position, of the council over the 3 financial years following the financial year to which the annual business plan relates; and

(3) Section 123(2)—after paragraph (f) insert:

(fa) if the council proposes—

(i) to provide a service or facility in the financial year that it has not provided previously the total cost of which (calculated based on the period over which the council estimates the service or facility will be provided) will be $500 000 or more (a new service); or

(ii) to undertake (or commence undertaking) a project in the financial year the total cost of which will be $1 million or more (a new project),

set out, for each new service or new project—

(iii) details of the new service or new project in a prominent position in the annual business plan; and

(iv) an estimate on the impact of the new service or new project on ratepayers, including—

(A) the amount of revenue required to be raised from rates under Chapter 10 to fund the new service or new project; and

(B) if relevant, whether that amount will be recovered—

• from ratepayers as a whole equally; or

• in a greater or lesser proportion from different classes of ratepayers; and

(4) Section 123(4)—before paragraph (a) insert:

(aaa) the prominent publication, at least 21 days before the publication of the notice under paragraph (a), on Internet platforms (such as social media) of notification of the fact that the council is preparing its draft annual business plan and calling for members of the community to submit proposals on activities or projects that should be included in the annual business plan for the financial year;

(aa) the council to ensure that any proposals submitted are considered at a meeting contemplated by paragraph (a)(i);

(5) Section 123—after subsection (11) insert:

(11a) A council must, within 14 days after adopting an annual business plan and a budget, also ensure that a report is published in a prominent location on its website setting out a detailed response to each proposal of a kind referred to in subsection (4)(aaa) submitted by a member of the community.

(11b) The council must ensure that a link to the website address at which the report published under subsection (11a)

is available for inspection is prominently published on Internet platforms (such as social media).

(6) Section 123(13)—after "required by" insert:

subsection (13a) and

(7) Section 123—after subsection (13) insert:

(13a) The chief executive officer of a council must provide a report to the council as soon as is reasonably practicable after a designated event occurs setting out the details of the designated event.

(13b) A council must, within 30 days after receiving a report provided by its chief executive officer under subsection (13a)

, publish the report in a prominent location on its website.

(13c) The council must ensure that a link to the website address at which the report published under subsection (13b)

is available for inspection is prominently published on Internet platforms (such as social media).

(8) Section 123—after subsection (14) insert:

(15) In this section—

designated event—a designated event occurs if the council has incurred expenses during a financial year in respect of a new service or new project (both within the meaning of section 123(2)(fa)) that exceed 110% of the amount allocated in the council's annual business plan or budget for the new service or new project (as the case requires) for that financial year.

21—Amendment of section 126—Audit committee

Section 126(2)—delete subsection (2) and substitute:

(2) The membership of an audit committee may only be comprised of persons selected from a list of persons established by the Auditor-General for the purposes of this section.

(3) The list of persons established by the Auditor-General—

(a) must not include a member or employee of the council; and

(b) must comply with any other requirements prescribed by the regulations.

(3a) Nothing in this section is to be taken to prevent—

(a) an employee of a council from attending a meeting of the council's audit committee if appropriate; or

(b) a person (on the list established by the Auditor-General) from being appointed as a member of the audit committee of more than 1 council.

22—Amendment of section 264—Complaint lodged in District Court

(1) Section 264(1)—delete "A" and substitute:

Subject to this section, a

(2) Section 264(1)—after paragraph (b) insert:

; or

(3) Section 264—after subsection (2) insert:

(2a) A complaint alleging a contravention or failure to comply with section 62(2b) or (2d) may only be lodged by the Local Government Commission or a person authorised in writing by the Commission.

23—Amendment of section 265—Hearing by District Court

Section 265(2)(a)—after "Corruption" insert:

, the Local Government Commission

24—Insertion of Chapter 13 Part 1A

Chapter 13—after Part 1 insert:

Part 1A—Conduct—complaints to Local Government Commission

269A—Preliminary

In this Part—

designated behaviour, in relation to a member of a council, means a failure by the member to observe a prescribed provision of the code of conduct for members under section 63;

prescribed provision of the code of conduct for members means—

(a) if the regulations prescribe provisions, or a class or classes of provisions, of the code of conduct for the purposes of this Part—the provisions so prescribed; or

(b) if no provisions are prescribed under paragraph (a)

—each provision of the code of conduct is a prescribed provision.

269B—Local Government Commission may deal with certain complaints relating to members' code of conduct

(1) The Local Government Commission may—

(a) investigate and take action in relation to designated behaviour of members of councils; and

(b) receive and deal with complaints in relation to designated behaviour of members of councils.

(2) In connection with subsection (1)

—

(a) any person may make a complaint to the Commission about designated behaviour of a member of a council; and

(b) the Commission may, on its own initiative or on receipt of a complaint, inquire into and investigate designated behaviour of a member of a council (in accordance with section 16 of the South Australian Local Government Grants Commission Act 1992

(3) Nothing in this section prevents—

(a) a person from making a complaint to the Ombudsman; or

(b) the Ombudsman from carrying out an investigation,

in accordance with section 263A or the Ombudsman Act 1972

(4) Nothing in this section affects the operation of the Independent Commissioner Against Corruption Act 2012

, including the obligation to comply with any relevant directions and guidelines issued by the Independent Commissioner Against Corruption under that Act in relation to the reporting of a matter that could raise a potential issue of corruption or serious misconduct or maladministration in public administration.

269C—Action that Local Government Commission may take

(1) The Local Government Commission may, after inquiring into and investigating designated behaviour of a member of a council—

(a) reprimand the member (including by means of a public statement); or

(b) require the member to attend a specified course of training or instruction, to issue an apology in a particular form or to take other steps; or

(d) if the Commission considers that the designated behaviour of the member involved a serious failure to observe a prescribed provision of the code of conduct for members—

(i) suspend the member from any office under this Act for a period determined by the Commission; or

(ii) disqualify the member from any office under this Act.

(2) If the Commission disqualifies a member from an office under this Act under subsection (1)(d)(ii)

—

(a) the office immediately becomes vacant; and

(b) the Commission may also prohibit the member from becoming a member of a council, a council committee or a subsidiary of a council for a period not exceeding 5 years.

(3) If a member of a council fails to comply with a requirement made by the Commission under subsection (1)(a)

to (c)

, the member will be taken to have failed to comply with Chapter 5 Part 4 and a complaint will be lodged (by or on behalf of the Commission) against the member with SACAT.

269D—Delegation

(1) The Local Government Commission may delegate to a person (including a person for the time being performing particular duties or holding or acting in a particular position) a function or power under this Part.

(2) A delegation—

(a) must be by instrument in writing; and

(b) may be absolute or conditional; and

(d) is revocable at will.

(3) A delegated function or power may, if the instrument of delegation so provides, be further delegated in accordance with that instrument.

25—Amendment of Schedule 3—Register of Interests—Form of returns

Schedule 3, clause 2(2)—after paragraph (c) insert:

(ca) particulars (including the cost) of any travel beyond the limits of South Australia undertaken by the member during the return period that is, or is to be, funded in whole or in part by the council, and for the purposes of this paragraph cost of travel—

(i) includes accommodation costs and other costs and expenses associated with the travel; but

(ii) does not include land based travel (as defined in section 79B(4));

26—Review of Local Government Act 1999 and Local Government (Elections) Act 1999

(1) The Local Government Commission must, as soon as practicable after section 24

of this Act comes into operation, conduct a comprehensive review of the Local Government Act 1999

(as amended by this Act) and the Local Government (Elections) Act 1999

to be undertaken and submit a report on the results of the review to the Minister.

(2) Without limiting subsection (1)

, the review must consider the following:

(a) the scheme for reviews and complaints under Chapter 13 of the Act, including amendments that would achieve efficient and effective processes in relation to complaints relating to council members and employees;

(b) rebates on and exemptions from rates under Chapter 10 of the Act;

(d) the codes of conduct for members and employees;

(e) matters connected with the establishment of a register of State-owned land under the care, control and management of councils;

(f) the introduction of compulsory voting in council elections;

(g) amendments that could be made with a view to the simplification of the Act;

(h) efficiencies that may be achieved from cross-council collaboration, including by identifying legislative barriers to such collaboration.

(3) The review and the report must be completed within 12 months of the day on which section 24

of this Act comes into operation.

(4) The Minister must cause a copy of the report submitted under subsection (1)

to be laid before both Houses of Parliament within 6 sitting days after receiving the report.

(5) In this section—

Minister means the Minister to whom the administration of the Local Government Act 1999

is committed.

Schedule 1—Transitional provision

1—Transitional provision

(1) The requirement under section 126(2) of the Local Government Act 1999

(as in force immediately after the commencement of section 21

this Act) that the membership of an audit committee of a council may only be comprised of persons selected from a list of persons established by the Auditor-General does not apply until the beginning of the financial year immediately following the year in which that commencement occurs (the designated day).

(2) A person who, on the designated day—

(a) holds office as a member of an audit committee of a council; and

(b) is not on the list of persons established by the Auditor-General,

ceases to hold office as a member of the audit committee.

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