Posted on May 19, 2013 by Lindsay Taylor
Local Government Acts Taskforce Proposals for a New Local Government Act
The Local Government Acts Taskforce recently released a Discussion Paper titled, ‘A New Local Government Act for NSW’ . The Discussion Paper ‘explores matters that in the view of the Taskforce are the key elements of a new Local Government Act …and puts forward proposals for comment on how these elements might be accommodated.’
The release of the discussion paper represents the second of a three stage review process of the existing Local Government Act 1993 (‘LGA‘).
The Discussion Paper covers several ‘big picture’ issues as well as containing a number of specific proposals regarding council operations.
Integrated planning & reporting (‘IPR’)
The Taskforce considers that IPR ‘should form the central theme of the new Act and be the primary strategic tool that supports councils delivering services and facilities to their communities.‘
The Taskforce argues that this will enable councils to make the transition from their current roles of being primarily service providers to a new role of facilitators or ‘place-shapers’ in a ‘broader local government system where councils work in partnership with others, including other levels of Government, to deliver better community outcomes.’
Use of technology
Another major theme is technology. The Taskforce considers that ‘it is essential that the new Act recognises the importance of technology as a mechanism councils can use to connect with their communities more efficiently and effectively deliver services.’
However, the Taskforce also notes that the use of technology by councils should not reduce access to them by their communities.
Charter, roles and principles of local government
Another notable proposal is that the council’s charter, which is currently contained in s 8 of the LGA, be replaced with a provision setting out the roles and principles for local government.
This is an odd recommendation to the extent that it presupposes the necessity to discard the charter.
The notion of a charter is that of a constitution – something that defines or describes an organisation’s functions. The notions of an organisation’s role and the principles governing the role are quite different. Hence, the proposal by the Taskforce involves a series of statements that are far more general in nature than the existing charter and arguably of far less use as a reference point in guiding the day to day conduct of councils.
There seems to be no good reason why the charter, perhaps with some amendments, cannot co-exist with the proposed new roles and principles of local government.
Summary of proposals relating to council operations
The following are some of the Taskforce’s proposals with respect to council operations.
The Taskforce proposes some significant changes in relation to elections, including abolishing the ward-based system, reducing the circumstances for by-elections and introducing half-term elections.
The proposals are as follows:
‘(i) use of postal voting at all council elections as a means of increasing efficiency and voter participation and reducing council election costs.
(ii) the following possible improvements to electoral provisions:
• the most appropriate voting system – exhaustive preferential; optional preferential; proportional, or first past the post;
• the option of utilising electronic voting in the future;
• mechanisms for removing the need for by-elections, when a vacancy occurs either in the first year following an ordinary election or up to 18 months prior to an ordinary election;
• half term elections for councillors, similar to Senate elections;
• the ward system being abolished;
• improving the adequacy of and access to candidate information prior to elections; and,
• the enrolment process and maintenance of the non-residential roll, particularly in the City of Sydney.’
The Taskforce proposes:
‘(i) the provisions relating to council meetings be:
• reviewed, modernised and any unnecessary prescription and red tape removed;
• designed to facilitate councils utilising current and emerging technologies in the conduct of meetings and facilitating public access; and,
• consolidated into a generic mandatory Code of Meeting Practice that may if necessary be supplemented to meet local requirements, provided the amendments are not inconsistent with the provisions of the Act and standard Code of Meeting Practice.’
Appointment and management of staff
The Taskforce proposes reforms in a further attempt to demarcate the roles and responsibilities of the governing body, the general manager and council staff but makes no proposal to protect the security of employment of general managers from decisions of councils to dismiss them for reasons not based on performance. This is a notable shortcoming of the Discussion Paper and, if not dealt with, an opportunity missed.
The Taskforce proposes:
‘(i) the strategic responsibilities of the council be clearly separated from the operational responsibilities of the general manager in determining the council’s structure and be aligned with IPR by:
• the general manager being responsible for determining the organisation structure and for recruiting appropriately qualified staff necessary to fulfill each role within the structure;
• the council being responsible for determining those services and priorities required and to provide the resources necessary to achieve the Council’s Delivery Program; and,
• the general manager being responsible for the employment of all staff and there be no requirement for the general manager to consult with the council in relation to appointment and dismissal of senior staff.
(ii) all positions meeting the criteria as a senior staff position be treated as such, appointed under the prescribed standard contract for senior staff, identified as a senior staff position within the organisation structure, and the remuneration be reported in the council’s annual report.
(iii) in line with the principle of reducing prescription:
• each council to determine how it deals with regulatory responsibilities that fall outside of the Local Government Act, rather than prescribe the appointment of a Public Officer; and,
• the EEO provisions be incorporated with the IPR processes and procedures.
(iv) the current prescription in the Act relating to the advertising of staff positions and staff appointments be transferred to regulation or to the relevant industrial award.’
The Taskforce proposes that:
‘(i) the pecuniary interest provisions be reviewed to ensure they are written in plain language, easily understood and any unnecessary red tape removed.
(ii) consideration be given to utilising available technology to assist with the submission and maintenance of pecuniary interest disclosures and to facilitate appropriate access to this information.’
‘The Taskforce proposes that the provisions in the Act relating to delegations be reviewed to ensure they are streamlined; written in plain language; and are reflective of the roles and responsibilities of the council and the general manager to facilitate the efficient, effective and accountable operation of local government.’
The Taskforce proposes:
‘(i) there be greater scope for a focus on principles and the definition of financial systems/minimum standards within a new legislative framework and for assimilation with the mechanisms of IPR in line with frameworks proposed for other parts of the legislation.
(ii) there be a rebalancing of the regulatory focus of the legislative framework towards systems and risk management rather than process prescription.
(iii) to await the Independent Panel work on many of the issues associated with fiscal responsibility including: rating issues; asset and financial planning; rates and charges; management of expenditure; and audit practices before recommending legislative positions on these matters.’
The Taskforces proposes to introduce some flexibility into local government procurement, including abolishing the $150,000.00 tendering threshold and allowing delegation of tendering decisions to the general manager.
The proposals are as follows:
‘(i) the adoption of a more principles-based enabling approach to procurement combined with a medium level of regulation designed to ensure support of the principles of value for money, efficiency and effectiveness, probity and equity, and effective competition.
(ii) in relation to the current tendering threshold of $150,000 rather than the legislation setting a dollar value threshold a more flexible principles-based approach be taken to councils setting the threshold based on risk assessment of the proposed procurement.
(iii) the delegations section of the Act be reviewed to facilitate councils entering into collaborative procurement arrangements such as via ROCs and allowing councils to delegate procurement to general managers with a ‘report back’ mechanism.
(iv) any regulation of council procurement support councils utilising available technologies that can assist with efficient, effective and economic procurement processes that are accessible to all relevant stakeholders and are fair, open and transparent.’
Capital expenditure framework
‘The Taskforce proposes that a capital expenditure and monitoring framework be developed to enable the appropriate management of risk by councils. This framework should be tailored to risk levels, including significance of the project (including materiality and whole of life costs) and not based on arbitrary monetary thresholds or procurement vehicles.’
Acquisition of land
The Taskforce proposes:
‘(i) no change at this time to the acquisition of land provisions as they remain essential to council’s continued service and infrastructure delivery, are generally working well and there are no strong reasons to support change.
(ii) council plans for the acquisition of land be linked with the IPR processes, and in particular the expressed opinion of the community in the community strategic plan on the need for additional public land or the sale of public land, be included in Delivery Program provisions.’
Some significant changes are proposed in relation to public land management by councils that are intended to simplyfy the system, including ending the current two-fold land classification regime.
The Taskforce proposes:
‘(i) the current processes for council land management, being complex and inconsistent with the Crown Lands regime, be simplified and complementary.
(ii) the Local Government Act:
• require councils to strategically manage council-owned public land as assets through the IPR framework;
• balance reasonable protections for public land use and disposal where the land is identified as having significant value or importance;
• end the classification regime of public land as either community or operational land and instead, require the council resolution at the time of acquiring or purchasing land to specify the proposed use or uses;
• provide that a proposed change in the use or disposal of public land, including consultation mechanisms, should be dealt with through the council’s asset management planning and delivery program;
• retain the requirement for a public hearing to be held by an independent person where it is proposed to change the use or dispose of public land identified as having significant value or importance. The results should be reported to and considered by the council before a decision is made and proposals should be addressed through council’s community engagement strategy;
• recognise the LEP zoning processes and restrictions applying to council owned public land;
• review the prescribed uses to which public land may be applied to accommodate other uses appropriate to the current and future needs of the community;
• cease the need for separate plans of management for public land to be prepared and maintained, and in lieu, utilise the asset management planning and delivery program; and,
• cease the need for a separate report to be obtained from the Department of Planning and Infrastructure where proposed leases and licences of public land are referred to the Minister for Local Government for consideration.’
Approvals, orders, and enforcement
Some streamlining of the current functions of councils to regulate activities are proposed.
The Taskforce proposes (page 56):
‘(i) regulatory provisions be reviewed to ensure that the Act provides guidance on regulatory principles but contains flexibility and less prescription in their implementation, with statutory minimum standards or thresholds the council must meet, and councils discretionary ‘on-the-ground’ functions.
(ii) within this framework, the prescriptive processes of approvals and orders be streamlined and, subject to risk assessment, be placed into regulations where possible, allowing the Act to focus on high priority areas and principles.
(iii) certain approvals be repealed or transferred to other legislation, such as the installation of manufactured homes and the operation of caravan parks and camping grounds. Installation of domestic oil and solid fuel heating appliances should be transferred to the Environmental Planning and Assessment Act; approvals for filming activities on public land be deleted or transferred to other legislation; approvals for amusement devices be transferred to health and safety legislation; and approvals for engaging in activities on public roads be transferred to roads and transport legislation.
(iv) given that maximum penalties have not increased since 1993, penalties for offences in the Act and Regulation be reviewed to ensure they are proportionate to the seriousness and nature of the offence, and act as a deterrent to re-offending.
(v) to have regard to the findings and recommendations of the reports by IPART as they affect local government that are due mid-2013.
(vi) The Taskforce invites comments as to whether there are currently activities requiring approval that are low-risk or redundant and therefore can be removed from the legislation.’
A number of non-metropolitan councils currently exercise functions relating to water supply and sewerage through a combination of provisions in the LGA and the Water Management Act 2000.
The Taskforce proposes that it:
‘will await the report and recommendations of the Independent Panel on water management so that the regulation of water by local government in NSW can be further considered. This will involve the determination of appropriate governance structures for water and sewerage delivery in those areas currently serviced by LWUs and water county councils. It will also resolve whether the constitutional and regulatory arrangements for new structures should remain in the Act or relocated into a more appropriate integrated legislative framework. ‘