Answering your questions on the new reforms.
This is the most significant reform of the local government sector in more than 25 years. It is a complex task and it makes sense to split the reform bill into tranches and finalise electoral reforms such as optional preferential voting before the October local government elections.
To bring the reforms in the Local Government Amendment Bill 2023 into effect, regulations will need to be made.
The first set of regulations will be focused on the electoral changes needed for the 2023 Ordinary Elections on 21 October 2023. This will occur as soon as possible prior to the election.
Further regulations will be made to address non-electoral matters such as communications agreements, CEO performance reviews and uniform meeting procedures.
Consultation on these reforms started in November 2021 with webinars, newsletters, forums and meetings. In particular, these reforms drew from the Phase 2 Local Government Act review consultation conducted in 2017-2018 and were further developed as part of working group sessions in 2022 with WALGA and LG Professionals WA.
These changes are dependent on regulations which will be developed in consultation with the sector. Local governments will be regularly updated about the progress of the regulations and when they can anticipate implementing the changes for communications agreements, meeting procedures and council plans.
The establishment of a new Office of the Local Government Inspector will be included in the second tranche of reform, which is intended to be introduced into Parliament in the 2023-24 financial year.
Register your email to be included in regular communications. The DLGSC will also issue regular alerts directly to all WA local governments. There will also be regular webinars which will be promoted to all WA local governments. There has been a number of webinars which were promoted to all WA local governments
If you still have questions regarding the Bill and local government reform email us at actreview@dlgsc.wa.gov.au or you can even speak to a real person at 1300 762 511. Your question may even make it to this list.
Preferential voting is the same method used in state and federal elections. Optional preferential voting means you are not required to provide all preferences in casting your vote.
Optional preferential voting means that to be elected you need to either achieve a majority of votes in the count for a single vacancy or a quota of votes where there is more than one vacancy to be filled. As a result, the candidates elected are more representative of the majority of voters.
Under the current first-past-the-post voting system candidates have been elected with as little as 4.71% of the vote.
Councils will be more representative of the majority of voters with greater opportunities for a diversity of representation and views on council.
A webinar on optional preferential voting was delivered on 27 April 2023.
The process of the election will remain the same, the key difference being how you complete your vote on your ballot paper, instead of ticking a box or boxes, you will number a box or boxes.
Multiple vacancy elections under optional preferential voting will require additional steps where preferences need to be distributed.
Elections can be conducted using the CountWA computer system where your local government uses the Western Australian Electoral Commission.
Alternatively, the local government CEO would need to manually calculate the quota, transfer values and surplus fractions as part of a potential distribution of preferences. As a result, local governments are strongly encouraged to engage the Western Australian Electoral Commission to conduct the election.
As with current state and federal elections, it’s the candidate’s decision to issue a how-to-vote card as part of their election campaign.
There will be no ‘group voting tickets’ in this voting system.
A candidate could suggest preferences for another candidate on their campaign material. However, it is ultimately you as the voter who decide where, if anywhere, you want your preferences to go.
Where the election is for a single vacancy, in the current first-past-the-post voting system you need to be the candidate with the most votes, but do not require majority support. This has created situations where positions such as the mayor of a major city have been elected with as little as 20% of the vote.
Under the optional preferential voting system, a candidate will need the support of a majority of voters to be elected. In order to achieve this, if no candidate has a majority of the first preferences, the lowest placed candidate would be eliminated and their preferences would be distributed to the voter’s next most preferred candidate. This is the same allocation of preferences that occurs in elections for the Legislative Assembly and House of Representatives.
As a result, the elected candidate is the most preferred candidate of a majority of voters.
Where the election is for a two or more councillors, in the current first-past-the-post voting system you need to be the candidate with the most votes, second most votes and so on. When a significant number of vacancies need to be filled, this has created situations where councillors are elected with as little as 5% of the vote. It has also created situations where a group of candidates can run as a ’ticket’ and for example all 4 seats up for election, but with only 40% of the vote.
Under the optional preferential voting system, the councillors elected will be representative of a proportion of the vote by achieving a quota of vote. This is the same as elections for the Legislative Council and Senate.
Where a candidate has more votes than this quota, their excess votes will be distributed at a reduced value according to their voter preferences, if any. Likewise, if no candidate has met the quota, the lowest placed candidate is eliminated and their voter preferences are then given to the next most preferred candidate, if any.
For example, where four councillors need to be elected, the quota for election is 20%+1 of the vote. This means that the councillors that are elected will be representative of 80% of voters preferences.
As a result, our councils will be more representative of a wider range of community views.
Will Optional Preferential Voting be applied to the election of the mayor or president, deputy mayor or president and committee presiding and deputy presiding members?
Yes — Optional Preferential Voting will be applied to all local government elections including elections for:
Given that these elections will always be for a single vacancy and the maximum number of votes to be cast is 15, these elections will be straightforward for local governments to implement.
Local governments that are classified as a band 1 or 2 (larger local governments) under the current determination of the Salaries and Allowances Tribunal will be required to elect the mayor or president by a vote of the electors, if they were not already.
The mayor or president is in a position of leadership and heightened responsibility on the council. In our larger local governments it is appropriate that they be elected by and accountable to the electors of the entire local government.
Local governments that are classified as a band 3 or 4 by the Salaries and Allowances Tribunal will not be allowed to have wards.
Councillors who were part of abolished wards will instead become councillors for each district.
Changes to local government representation
Local governments will have a maximum and minimum numbers of council members based upon their population. Namely:
Each council’s situation is different, and your local government may have undertaken a ward and representation review which may have addressed how and when the council membership will be changed.
Councils that did not undertake a review will be placed onto the ‘reform election pathway’, which may result in all seats on the council being vacated at the October 2023 Local Government Elections to provide a fair pathway for reducing the membership.
The Inquiry into the City of Perth identified that there are flaws with the existing rules regarding people who occupy property claiming to be able to vote in specific local government elections. For example, the inquiry found instances of sham leases to appear to be eligible to nominate as a candidate for council elections.
It is intended to tighten these rules to ensure people genuinely use the properties they occupy and that the claim they make is for an appropriate place.
This will include:
The detail of these and other requirements will be set out in regulations.
Commencement: 1 July 2024.
In State and Federal Government the government enters what is called a caretaker period when a general election is held. This period means that crucial decisions that would bind a new government are not made while the electors are deciding who the new government should be. Many local governments currently also carry out a caretaker period for their ordinary elections, however this is decided on a case by case basis.
Just like State and Federal Governments, local governments should not be making significant decisions while an election is underway, particularly decisions that would bind a future council to a particular course of action. Many local governments already implement caretaker periods through their own council policies and decisions.
While the administration of a local government is not changed by an election, an administration is subject to the direction of the council chosen by the electors. As such, entering major contracts, changing the CEO and similar significant decisions should not be made until after the local government election concludes. This allows a potential new council to choose the course of action that best reflects the electors they represent.
This reform intends to standardise a caretaker period across all local governments in Western Australia.
The caretaker period will apply to all ordinary local government elections from 2025 onwards.
The caretaker period runs from the close of nominations to declaration of the poll.
It will also apply to any election to elect a council after it has been declared vacant or dismissed.
It will not apply to extraordinary local government elections.
During a caretaker period a local government must not do a significant act unless an exception applies.
The first exception relates to decisions which were made prior to the caretaker period but not yet actioned. In this circumstance a local government can implement a decision made prior to the caretaker period, such as signing a major contract, but it must first give local public notice of the details of the:
This local public notice must also be provided to the Director General of the DLGSC.
The second exception provides that a local government may do a significant act to comply with the law, an order of a court of tribunal or a contractual obligation arising from a contract entered into by a local government before the caretaker period. This ensures that a local government’s legal obligations can be met (s.3.73(5)).
The third and final exception allows a local government to undertake a significant act in an emergency with the approval of the Director General of the DLGSC. This ensures that emergency responses can be undertaken during this period.
The Act and Functions and General Regulations set out several matters which constitute a significant act. It is a significant act to both make the decision to undertake a significant act and to undertake that significant act. For example, both the decision of the council to enter into a major contract and the CEO signing the contract are significant acts.
The list below may assist in understanding the what are the significant acts not permitted during the caretaker period.
Prescribed significant act and example:
Currently each local government makes its own meeting procedures or standing orders, typically through a local law. This means each local government can have different processes for how motions are to be moved or for the public to ask questions or make statements.
A uniform set of regulations would be made to ensure that local governments meetings all operate in a comparable way. This means that when you attend a council meeting at a different local government there would not be a different process for you to have your say.
This change is intended to simplify how local government meetings are conducted, improve the transparency and public involvement in some local governments and promote a uniformity throughout the sector.
Based upon a local government’s banding by the salaries and allowances tribunal the band 1 and 2 local governments will need to live stream meetings of council. Band 3 and 4 local governments would need to record their meetings and publish that recording on their website.
This change is intended to make local governments meeting more transparent and improve the accountability of council members by ensuring records are available of what council members said at meetings of council on items for debate.
A communications agreement in the State Government is the agreement between a Minister and the agency assisting them with their responsibilities. This agreement sets out how the Minister and agency will communicate with each other, how requests for information can be made and who in the agency a Minister and their staff may contact.
Each council would be required to enter into a communications agreement with their CEO. If the council and CEO cannot agree they would be placed onto a default agreement determined by the Minister.
This agreement must address how the council members may seek information and assistance from the local government administration in carrying out their role. This could include councillors seeking a briefing about an ongoing community issue, speech notes for a civic function or assistance with their statutory obligations. This communications agreement would set out how this assistance would be provided and timelines for when the local government would respond.
Local governments currently have inconsistent approaches as to how information is to be sought. In some local governments this information may only be sought through a specific inbox. In other local governments council members can call most of the staff to seek information.
It is intended by standardising this matter we can promote the appropriate separation of the council and administration while also ensuring that local government administrations are responsive and professional in the provision of advice.
Local governments currently enter into many agreements that involve the expenditure of ratepayer funding or use of local government property. To ensure good record keeping and public visibility of these decisions it is proposed local governments keep public registers on matters such as leases, grants, sponsorship and goods and services contracts.
This change is intended to make local governments more transparent and provide public information about what local governments are doing with their leases, grants, sponsorship and contracts for goods and services.
The employment of a CEO is a very important decision by a local government. The community should have confidence in their performance. Consistent with previous reforms regarding the introduction of the CEO Standards for recruitment, performance review and termination, the State Government is proposing to introduce requirements to publish:
Approval can be obtained to restrict certain matters from publication that may be sensitive.
This change is intended to make local governments more transparent and provide public information about the performance of the local governments CEO and wider administration.
A council plan would replace some of the existing key plans of your local government. Instead, a council plan adopted by the council will set the high level priorities of the local government for the future.
The existing integrated planning and reporting framework is quite complex and is requiring significant resourcing by local governments. By simplifying the framework local governments can better focus their resources towards service delivery instead of extensive planning.
Commencement: immediately.
The number of signatures required to call a special electors’ meeting has increased to 300 from 100 and allow a mayor or president to direct that a special electors’ meeting not be held on the same subject more than once in a 12-month period. However, if there is a refusal, the local government is still required to refer the matter to be included on the agenda of the next council meeting.
The new meeting procedures regulations will also apply to electors' meetings, including the annual electors meeting. This will enable the presiding member to maintain order while ensuring members of the public have a clear right to ask questions.
Local governments are required to review all internal documents, including procedures and any public facing information, to reflect the changes.
Commencement: 1 July 2023.
Council members are now entitled to parental leave when themselves, or their spouse or de facto partner, either:
A council member is entitled to 6 months of parental leave beginning on the day on which the council member, or their spouse or de facto partner, gives birth, adopts or becomes a guardian or foster parent.
The Act does not allow for the period of parental leave to be deferred to a later date.
The period of parental leave can be less than 6 months if desired.
A council member does not need to apply for a leave of absence for their entitlement to take effect.
As the Act automatically provides for the entitlement, there is nothing required from a local government to implement the change.
Local governments do need to be aware that while a council member is on parental leave, their office on council is not to be counted when determining quorum for a meeting. For example, if a council comprises of 9 council members and 1 is on parental leave, at least 50% of the number of offices of the council is to be counted as 4, making the quorum for a council meeting 4 council members.
Commencement: 1 July 2023
Local governments are now required to record voting information against each motion voted on at a council or committee meeting. This information includes the:
It is the responsibility of the person presiding at the meeting to ensure that the information is recorded.
An example of how this might look is included below.
Moved: Cr Pink
Seconded: Cr Orange
That Council adopts [insert motion here].
For: Cr Pink, Cr Orange, Cr Purple, Cr Grey, Cr Red, Cr Yellow and Mayor Violet
Against: Cr Blue and Cr Green
This change does not apply for situations where voting is conducted by secret ballot, such as when a council elects a mayor, president, deputy mayor or deputy president.
From 1 July 2023, voting information should be included against each motion voted on at a council or committee meeting. This includes procedural motions, amendment motions and alternative motions, but does not include those situations already mentioned where voting is conducted by secret ballot.
If the required information isn’t already captured, local governments should update templates and systems used for the purposes of taking minutes to allow for it to easily occur.
Persons presiding at council or committee meetings should also be made aware of the new requirement so they can support minute takers by presiding over meetings at a pace and using a method that allows for information to be captured.
The Act now allows for local governments to make applications to the Minister to grant exemptions to not comply with provisions in the Act, under limited circumstances.
These limited circumstances include:
The term 'emergency' is defined by the Act to include:
A local government cannot be granted an exemption if the matter relates to the following, or any related orders or regulations:
To have an exemption considered, a local government may apply to the Minister. On receipt of an application, the Minister may grant the exemption, for a specified period only, if the Minister is satisfied that:
If granted, an exemption may only apply for specified activities, conditions or any other type of limitation.
Applications for exemption should be directed to the Minister and should detail:
If an exemption is granted, the local government must give local public notice of the exemption unless specified by the Minister.
The Department of Local Government, Sport and Cultural Industries is developing further support resources in relation to this issue and these policies will be available for public viewing once in place.
Councils are no longer permitted to allow a council member, that has disclosed an interest under section 5.65 of the Act, to be present during any discussion or decision-making procedure, if the disclosure relates to:
Councils must ensure that they do not resolve to allow for a council member to be present when the situation above applies.
Chief executive officers can assist the council by making themselves aware of gift registers and interests disclosed at each meeting, to allow for advice to be provided if council consider allowing participation.