Posted on March 24, 2020 by Lindsay Taylor
Council Delegations & Emergency Decision-Making During COVID-19 Crisis
Council delegations are an important governance tool at any time. During the current Novel Coronavirus (COVID-19) crisis, delegations provide a means of enabling councils to continue functioning in a timely and responsive manner as events unfold quickly and urgent decisions need to be made. This is particularly so where meetings of the governing body are suspended, disrupted or unable to occur or because of the effects of COVID-19. It is also the case where urgent decisions need to be made between council meetings and the calling of an extraordinary meeting would not be a sufficiently responsive or feasible way of making the decision.
Section 377(1) of the Local Government Act 1993 (‘LG Act‘) enables a council, by resolution, to delegate to the general manager or any other person or body (not including another employee of the council) any of the functions of the council under the LG Act or any other Act with 21 specific exceptions.
A number of councils are using what could possibly be their last scheduled ordinary meeting for the foreseeable future to confer broad ‘emergency‘ delegations on their general managers and mayors as a contingency measure in order to ensure, so far as is practicable, that the council is able to continue to provide goods, services and facilities, and carry out activities, appropriate to the current and future needs within its local community and the wider public in an effective manner during the crisis.
General managers typically have broad operational delegations from the governing body of the council, although these are usually subject to conditions and limitations, notably expenditure limitations. During the COVID-19 crisis, there is a strong case for the general manager’s delegations to be broadened and restrictions relaxed in relation to any decision-making involving operational matters of the Council.
Mayors typically have narrower delegations. During the COVID-19 crisis, there is a strong case for governing bodies to delegate to mayors as a contingency measure all of the functions of the council which are not delegated to the general manager. Such a delegation would be complimentary to a mayor’s role under s226(d) of the LG Act Act ‘to exercise, in cases of necessity, the policy-making functions of the governing body of the council between meetings of the council’.
It is important that emergency delegations to general managers and mayors are drafted to be only exercisable in any period during which the holding of meetings of the governing body of the council and council committees are suspended, disrupted or unable to occur by reason of COVID-19 or where, in cases of necessity between meetings of the council, the general manager or mayor considers that it is in the interests of the local community or the wider public or the effective functioning of the council that an emergency delegation is exercised.
Further, in relation to the mayors’ emergency delegations, councils may wish to impose a requirement that the mayor consults with the general manager before exercising an emergency delegation relating to any operational matter of the council.
Emergency delegations to general managers and mayors, while clearly warranted during the COVID-19 crisis, are no panacea. They cannot be a complete substitute for decision-making by the governing body and council committees while ever some of the most important functions of councils, including the levying of rates, the making of charges, the fixing of fees, the borrowing of money, and the voting of money for expenditure on works, services or operations, are excluded from delegation under s377(1) of the LG Act. Legislation would be needed to enable general managers and mayors to be given delegations to exercise these functions during the current crisis.
Any emergency delegations granted to general managers and mayors will, of course, be subject to any legislation, or any proclamations, directions, orders, notices or the like of the Minister administering the Local Government Act 1993 made or given to address Council decision-making during the COVID-19 crisis.
LTL is able to assist councils prepare emergency delegations on short notice. Please contact Dr Lindsay Taylor on T.82359701 or M.0417997880 or by email on firstname.lastname@example.org