Western Australian Numbered Acts Western Australian Numbered Acts Delete
section 5.23 and insert:
5.23. Meetings generally open to public
(1) The following are
to be open to members of the public —
(a) all
council meetings;
(b) all
meetings of a committee.
(2) Despite
subsection (1), if any of the following matters is to be dealt with at a
meeting, the council or committee must close the meeting to members of the
public to the extent necessary to ensure that the matter is dealt with at the
meeting on a confidential basis —
(a) a
matter that a committee of a House of Parliament, or a joint committee of both
Houses, has advised the local government must be dealt with on a confidential
basis;
(b) a
matter relating to the recruitment or employment of the CEO or a senior
employee, including the following —
(i)
the termination of employment;
(ii)
a review of performance under section 5.38;
(c) a
prescribed matter;
(d) a
matter that is the subject of a direction given under section 5.23AA(1).
(3) Despite
subsection (1), the council or committee must close a meeting to members
of the public to the extent necessary to ensure compliance with a requirement
(however formulated) —
(a) that
is imposed under a written law, excluding this Act and local laws; and
(b) that
prohibits or restricts the making public of information.
(4) Despite
subsection (1), if any of the following information is to be dealt with
at a meeting, the council or committee may close the meeting to members of the
public to the extent necessary to ensure that the information is dealt with at
the meeting on a confidential basis —
(a)
legal advice, or other information, over which the local government holds
legal professional privilege;
(b)
information relating to the personal affairs of an individual;
(c)
information contained in a tender received by the local government for a
contract to the extent that the information —
(i)
is a tendered price; or
(ii)
a tendered methodology for calculating a price;
(d)
information contained in a tender received by the local government for a
contract to the extent that —
(i)
the information discloses any technology, or any
manufacturing, industrial or trade process, that the tenderer proposes to use
in performing the contract; and
(ii)
the information has not previously been made public; and
(iii)
the making public of the information would be likely to
have an adverse effect on the tenderer’s business interests;
(e)
information the making public of which would be likely to endanger the
security (including cyber-security) of any of the local government’s
property or operations;
(f)
information the making public of which would be likely to impair the
effectiveness of any lawful method or procedure for preventing, detecting,
investigating or dealing with any contravention or possible contravention of
the law;
(g)
prescribed information;
(h)
information that is the subject of a direction given under
section 5.23AA(2).
(5) For the purpose of
deciding whether to close a meeting to members of the public under
subsection (4) in relation to any information, the following matters are
irrelevant —
(a)
whether making the information public would cause embarrassment to any of the
following —
(i)
the local government;
(ii)
the council or a council member;
(iii)
a committee of the council or a member of a committee of
the council;
(iv)
an employee;
(b)
whether making the information public would —
(i)
cause a loss of confidence in the local government; or
(ii)
make the local government susceptible to adverse
criticism;
(c)
whether the information relates to a matter that is controversial in the
district;
(d) a
prescribed matter.
(6)
Subsection (5) does not prevent other matters from being regarded as
irrelevant.
(7) A decision to
close a meeting to members of the public under subsection (2), (3) or (4)
must be made (including voted on if necessary) at the meeting and while the
meeting is open to members of the public.
(8) If a decision is
made to close a meeting to members of the public under subsection (2),
(3) or (4), the following must be recorded in the minutes of the
meeting —
(a) the
decision;
(b) the
subsection under which the decision is made and, if that subsection is
subsection (2) or (4), the paragraph of that subsection under which
the decision is made;
(c) if
the provision recorded under paragraph (b) is subsection (2)(c) or
(4)(g) — the applicable regulation (including any applicable
subregulation or paragraph);
(d) if
the provision recorded under paragraph (b) is subsection (2)(d) or
(4)(h) — a statement that a direction was given under
section 5.23AA(1) or (2) (as the case requires);
(e) an
explanation of how the matter or information to which the decision relates
falls within the scope of the provision recorded under paragraph (b);
(f) a
summary of the steps taken to ensure that the closure to members of the public
is for no longer than required or authorised under the provision recorded
under paragraph (b);
(g) any
prescribed information.
(9)
Sections 5.95(3) and 5.96A(2) do not apply to information that is
required to be recorded in the minutes of a meeting under subsection (8).
5.23AA. Powers of Inspector and Departmental CEO
relating to closing of meetings
(1) The Inspector, or
a person authorised by the Inspector, may, in relation to a particular matter,
direct a local government for the purposes of section 5.23(2)(d) that a
meeting must be closed to members of the public to the extent necessary to
ensure that the matter is dealt with at the meeting on a confidential basis.
(2) The Departmental
CEO, or a person authorised by the Departmental CEO, may, in relation to any
particular information, direct a local government for the purposes of
section 5.23(4)(h) that a meeting may be closed to members of the public
to the extent necessary to ensure that the information is dealt with at the
meeting on a confidential basis.
(3) A direction under
subsection (1) or (2) may be expressed to apply to a particular meeting
or to meetings of a particular class.
(4) If the Inspector
is satisfied that a meeting, or part of a meeting, was closed to members of
the public in contravention of section 5.23, the Inspector may direct the
local government to do 1 or more of the following —
(a)
despite section 5.95(3), make available for inspection under
section 5.94 any information to which section 5.95(3) would
otherwise apply because the meeting, or part of the meeting, was closed to
members of the public;
(b)
despite section 5.96A(2), publish on the local government’s
official website under section 5.96A(1) any information to which
section 5.96A(2) would otherwise apply because the meeting, or part of
the meeting, was closed to members of the public;
(c)
despite section 5.23A(3) and any provision of regulations made for the
purposes of section 5.23A, make publicly available, in accordance with
the direction, any recording, or any part of a recording, that was made of the
meeting or part of the meeting.
(5) In
subsection (4)(c) —
recording means a video recording, or an audio
recording, made under regulations made for the purposes of section 5.23A.
(6) A local government
must comply with a direction given to it under subsection (4) within the
time specified in the direction.