Incident register at licensed premises

Purpose

This policy is intended to provide guidance to local governments in relation to applications to seek an exemption from a provision of the Local Government Act 1995 (the Act) or a requirement of a provision of the Act or associated regulations.

Before reading this policy

• The Minister for Local Government’s (the Minister’s) power to grant exemptions from compliance to local governments is prescribed in the Act.
• This policy should be read in conjunction with the Act. 
• This policy is not binding on the Minister, nor does it place any limitations on the Minister’s discretionary powers under the Act. 

Additional information 

If you have questions relating to this policy, please email legislation@dlgsc.wa.gov.au 

For a Translating and Interpreting Service (TIS) telephone, please call 13 14 50.

Introduction 

Section 9.63A of the Act provides that the Minister may grant a local government an exemption from a requirement of a provision of the Act or associated regulations. 

The purpose of this power is to provide flexibility in situations where a local government is unable to comply with the Act due to unforeseen and unique circumstances beyond its control. The use of this power is limited to emergencies or other ‘unusual circumstances’. Exemptions can only be temporary in nature and granted for a set period of time. 

The term ‘emergency’ is defined within the Act, to be in accordance with the Emergency Management Act 2005 section 3¹;  or the Public Health Act 2016 section 4(1)². 

The phrase ‘unusual circumstances’ although not defined means a circumstance (possibly from an event) that is not usual, common or ordinary or is of an exceptional kind that has arisen with respect to the local government. 

Examples could include unforeseen local events (such as a catastrophic loss of financial record-keeping systems in fire or ransomware incident) or major regional events (such as a widescale cyclonic or bushfire incidents impacting local government facilities and services). 

When can the Minister use this power?

The Act provides that the Minister can only use this power when the following circumstances are met:

(1) The Minister has received an application from a local government requesting an exemption;

(2) The Minister is satisfied that the exemption is not from an excluded provision or a requirement of an excluded provision and is reasonably necessary to enable a local government to:

(a) Respond urgently to an emergency; or

(b) Respond, on a temporary basis, to unusual circumstances.

(3)  In the case of an emergency – the application was made as soon as was reasonably practicable;

(4)  The exemption will not undermine good government in the local government’s district; and

(5)  The exemption is in the public interest.

Submitting an application

The Act provides that the Minister may only grant an exemption in response to an application submitted by a local government. 

A local government can submit an application, if the local government is satisfied that an exemption is required to respond to an emergency or unusual circumstances. This will require the applicant to provide: 

(a) evidence that the local government has provided authority to make the request; and

(b) the reasons for why the exemption is deemed necessary. 

When assessing the application, the Minister must be satisfied that the applicant is authorised by the local government to make the request.

As a general rule, authorisation should be demonstrated by: 

(a) a resolution of the council;  or 

(b) a signed letter from the CEO, along with evidence that the CEO is taking this action pursuant to a delegation from the council. 

It is recognised that during times of natural disaster, it may not be convenient or even physically possible to convene a council meeting. In that case, the applicant should contact the Department to discuss an alternative means of verifying council authorisation.

If a council elects to delegate the CEO with the power to make applications of this kind, 

it may not be possible for the council to consider every potential situation where the CEO may need to use this power. Nevertheless, such delegations may be useful to enable the CEO to take prompt action in an emergency. 

Any delegation should attempt to place clear boundaries on the kind of exemptions which the CEO can seek and the circumstances where they are authorised to take action (e.g. a condition could provide that the CEO can only make a request in situations where flood or bushfire is preventing the councillors from convening a meeting).

The delegation should also specify any conditions attached to the use of the power 

(e.g. the delegation may include a condition stating that if the CEO applies for an exemption without the council’s knowledge, they must notify all councillors as soon as practicable).  

What are the limitations of this power?

An exemption granted by the Minister can be for a specific period of time.

If the Minister grants an exemption which is granted subject to a condition, the Act provides that the exemption will have no effect at any point where the condition is contravened. This mechanism is automatic and is not discretionary.

The Act provides that certain sections of the Act are excluded provisions to which no exemption can be granted. The excluded provisions are as follows: 

• Part 2 — Constitution of local government
  • Schedule 2.1 — Creating, changing the boundaries of, and abolishing districts
  • Schedule 2.2 — Provision about names, wards and representation
  • Schedule 2.3 — Election of mayors, presidents, deputy mayors and deputy presidents 
  • Schedule 2.4 — Provisions about commissioners
  • Schedule 2.5 — Provisions about the Local Government Advisory Board
• Part 3 Division 2 — Legislative functions of local governments
• Part 4 — Elections and other polls
  • Schedule 4.1A — Filling extraordinary vacancy without extraordinary election
  • Schedule 4.1B — Filling office of councillor who is elected elector mayor or president
  • Schedule 4.1 — How to count votes and ascertain the result of an election
  • Schedule 4.2 — Order of retirement from office of councillors

Retrospective approvals

The Act provides that an exemption can operate retrospectively in relation to a period of time that has already passed for emergencies only. The retrospective operation cannot occur in relation to exemptions granted for unusual circumstances.

Conditional exemptions

The Act provides that an exemption granted by the Minister can be subject to any conditions the Minister deems appropriate. 

Conditions could include, but are not limited to:

• Limiting the exemption to apply to a specific thing or activity; 
• Requiring the local government to comply with the exempted provision as much as is possible in the circumstances; 
• Requiring the local government to perform some task or action in substitution for the exempted provision; or
• Requiring the local government to provide periodic reports to the Minister in relation to the matter being exempted.

The actual conditions which will be imposed on an exemption will depend on the local government’s individual circumstances and the kind of exemption being sought. 

Regional local governments

The Act provides that two or more local governments can form a “regional local government” to carry out any role or task within the collective districts that one of the members could carry out individually. 

A “regional local government” is considered a “local government” for the purposes of the Act. Accordingly, a regional local government may apply for an exemption from a requirement of a provision of the Act or associated regulations. 

In considering an application from a regional local government, the Minister will consider additional factors such as:

• Whether the emergency or unusual circumstances is occurring in all the member districts or whether it is confined to a specific district; 
• Whether the application is supported by the member councils; and
• Whether the granting of an exemption will prejudice the interests of one or more of the member councils. 

Assessment process

In assessing a request for an exemption, the Minister will generally be guided by the following:

1. Has the local government made a valid application?
   • Was the application authorised by the council (or the CEO, where delegated)?
   • Is there sufficient information contained within the application to enable the Minister to make a decision? 
2. Is granting an exemption lawfully open to the Minister?
   • Is the Minister satisfied that an emergency or unusual circumstance exists?
   • Is granting the exemption reasonably necessary to enable the local government to respond to the situation? 
   • Does the exemption relate to a non-excluded provision?
   • Is the exemption in the public interest?
3. Is an exemption appropriate in the circumstances?
   • Was the application submitted without unreasonable delay?
   • Will it undermine good governance? 
4. 4. If the granting of an exemption is lawful and appropriate:
   • Should it be subject to limitations or conditions?
   • How long should it operate?
   • Should it apply retrospectively and if so, to what extent?

Notes

[1] See Emergency Management Act 2005 section 3 for complete list although this includes (but not limited to): a cyclone, flood, storm, fire, a crash (road, rail or air), plague/epidemic and an act of terrorism.

[2] Is an event or circumstance, or a series of events or circumstances, that is causing or contributing to, has caused or contributed to or may cause or contribute to serious adverse effects on public health.