In 2020 Local Government had to respond quickly to support their communities in dealing with the unprecedented emergencies of the bushfires and COVID-19. As a result, legislative changes were made to support Local Government to effectively operate during the emergencies, and support their communities with recovery.
This article gives an update on Local Government operations and procurement during the emergencies and into recovery including
- Special COVID-19 measures; and
- Aftermath of the 2020 bushfires.
Update on special COVID-19 measures
Multiple amendments were made to the Local Government Act 1993 (NSW) (the Act) and Local Government (General) Regulation 2005 (the Regulation) in 2020 in response to the pandemic1.
These amendments were in relation to social distancing requirements and attendance at Council and committee meetings, as well as other operational matters including:
- Extensions for Councils to adopt their Operational Plan, submit audited financial reports and publish annual reports; and
- Allowing Councils to delay issuing rates notices to ratepayers and waive or reduce fees under a “COVID-19” category.
Further amendments have been made to the Act and Regulation as follows:
- An extention of the period during which the special COVID-19 pandemic provisions of the Act apply, and
- Postponement of the repeal of the COVID-19 pandemic regulation-making power in the Act to 25 March 2021.
What does this mean for Local Councils?
The Regulation extends the “prescribed period” for the purposes of sections 747A and 747AB of the Act to the end of 25 March 2021.
- Section 747A provides that during the prescribed period, a requirement for councillors or others to attend a meeting is satisfied if the meeting is held in whole or in part remotely using audio visual links; and
- Section 747AB limits the ability of councils to commence proceedings to recover unpaid rates and charges during the prescribed period unless certain steps have been taken to identify and address financial hardship.
With 25 March 2021 fast approaching, the Office of Local Government (OLG) advises in Circular 21-01 published on 9 March 2021, that the Regulations in relation to Council meetings will be further amended to allow councils to permit individual (but not all) councillors to attend meetings by audio-visual link. The amendments will be temporary and will expire on 31 December 2021.
In the meantime, the OLG is also seeking the views of councils on proposed amendments to the Model Meeting Code to allow councils to permit individual councillors to attend meetings remotely by audio-visual link in certain circumstances. The proposed new provisions will not be mandatory, and councils will be able to choose whether to include them in their adopted codes of meeting practice. Councils who wish to make a submission on the Model Meeting Code can email firstname.lastname@example.org by 3 May 2021.
This recognises that most Councils have successfully implemented remote meetings and wish to have the option of remote attendance at meetings available on an ongoing basis to encourage greater diversity of representation.
Plans, Reports and Advertising
The measures prescribed on 17 April 2020 under section 747B of the Act (notified in circular 20-12) relating to extensions for Councils to adopt or submit plans or reports, and delay rates notices, automatically expired on 18 October 2020.
Finally, the amendments made to the Regulation removing requirements for newspaper advertising for tender processes are ongoing and will continue to apply after the COVID-19 pandemic passes, reflecting a long-needed change to some of the outdated procurement provisions in the Act and Regulation.
Procurement and Recovery in the aftermath of the 2020 bushfires
Local Councils impacted by the 2020 bushfires needed to take urgent bushfire protection, recovery and remediation operations to help their communities recover and rebuild.
To help facilitate this from a procurement perspective, amendments were made to the Regulation to temporarily increase the tendering exemption threshold to $500,000 for contracts entered into primarily for the purpose of bushfire-related response and recovery work before 31 December 2020.
A further amendment was made to the Regulation to extend this period by 6 months to 30 June 2021.
This means that until 30 June 2021, Councils will not be required to go to open tender prior to entering into contracts with a value of up to $500,000 that are primarily for the purpose of bushfire-related response and recovery.
Councils must ensure they continue to comply with their overriding obligation to achieve value for money and uphold appropriate standards of probity for all procurements.
After 30 June 2021, the usual $250,000 tendering exemption threshold will apply, unless further extended prior to this date.
This reflects the Government’s recognition that recovery efforts have been made more challenging as a result of the impact of the COVID-19 pandemic and other natural disasters.
In further recognition of the recovery efforts, the Bushfire Local Economic Recovery Fund, jointly funded by the Commonwealth and NSW Government, also committed $250 million of further funding to support the social and economic recovery of communities affected by bushfires in 47 regional NSW Local Government Areas. Successful projects under that program are set to be announced from June 2021.
The year 2020 was a difficult year for all Australians, local councils had to respond quickly to emergencies to support their communities, and continue to operate as effective organisations.
As a result, multiple amendments were made to the Local Government legislation, requiring Councils to familiarise themselves with these changes and quickly implement them.
Many of the amendments made to the Act and Regulations continue to be updated and extended, and Councils need to remain astute and agile to the ongoing changes.
Some initial temporary changes are also becoming long term or permanent, including doing away with newspaper tender advertisements and keeping available virtual council meetings (pending the outcome of the OLG submission process), with the pandemic being the catalyst needed to improve some efficiencies and update outdated provisions to reflect the current times.
This article was written by Scott Alden, Partner and Victoria Gordon, Senior Associate.
1 These are summarised in the following circulars published by the Office of Local Government (OLG):
- 20-09 Compliance with social distancing requirements to limit the spread of the COVID-19 virus at council and committee meetings
- 20-12 Modification of statutory requirements in response to the COVID-19 pandemic
- 20-28 Rules on attendance at council and committee meetings during the COVID-19 pandemic as of 1 July 2020