Compiled and published by Ian Ellis-Jones. Copyright Ian Ellis-Jones 2008. All Rights Reserved. Disclaimer: The information contained in this publication does not constitute legal advice of any kind. The author Ian Ellis-Jones does not guarantee or warrant the current accuracy, legal correctness or up-to-dateness of the information contained in the publication.
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A GUIDE TO NSW LOCAL COUNCIL MEETINGS
1. A GUIDE TO NSW LOCAL COUNCIL MEETINGS
Compiled by Dr Ian Ellis-Jones
COUNCIL AND ITS GOVERNING BODY There must be at least 10 (ordinary) The notice should “substantially put the
meetings per year, each time in a different [members] in the position to know what they
A local council (a body corporate and month: s 365, LGA. are voting about”: Baillie v Oriental
statutory corporation) is made up of elected Telephone and Electric Co Ltd [1915] 1 Ch
representatives, called “councillors”, who EXTRAORDINARY MEETINGS 503 at 514, applied in Colhoun v Green
comprise the “governing body” of the council: [1919] VLR 196 at 202.
s 222 LGA. An extraordinary meeting is called to deal
with some special matter. Once notice of meeting given, meeting
The role of the governing body is to “direct cannot be legally cancelled or even
and control the affairs of the council” in postponed: see Smith v Paringa Mines Ltd
accordance with the Act: s 223 LGA. Although there is no limit on matters that can [1906] 2 Ch 193.
be brought up at an extraordinary meeting,
A local council, being a body corporate, can an extraordinary meeting called to transact
business X cannot transact business Y. See Failure to send a notice will ordinarily not
only act by resolution or by way of delegated invalidate the proceedings: s 374(d) LGA; cf
authority granted pursuant to a validly passed cl 242(1) LGGR. However, business may be
transacted at the meeting without prior notice Myer Queenstown Garden Plaza Pty Ltd v
resolution: see Delta Properties Pty Ltd v City of Port Adelaide (1975) 33 LGRA 70.
Brisbane CC (1955) 95 CLR 11. to the councillors provided a motion is
passed to that effect and the business is
Unless otherwise disentitled, a councillor has ruled by the chairperson to be of “great AGENDA AND BUSINESS PAPERS
a statutory right and implied duty to attend urgency”: cl 242(2) LGGR.
council meetings and to take part in the The agenda must state:
proceedings, and must not be unlawfully The mayor must call extraordinary meeting all matters to be dealt with arising out of
excluded or expelled from a meeting. See (to be held as soon as practicable and within the proceedings of former meetings;
Ariansen v Bromfield (1956) 1 LGRA 1. 14 days) upon written request signed by at any matter or topic that the chairperson
least 2 councillors: s 366 LGA. Arguably, the proposes to put to the meeting (if the
Councillors must serve the interests of mayor can also call such an extraordinary mayor is the chairperson) at the time
Council as a whole; their overriding duty is to meeting of his or her own motion, but that when the business paper is prepared;
the body of which they are members and the matter should be regulated by the CMP. and
governing body itself: see Bennetts v Board any business of which due notice has
of Fire Commissioners of NSW (1967) 87 THE COUNCIL “CONSTITUTION” been given: cl 240(1) LGGR.
WN (Pt 1) (NSW) 307. See also Asher v
Secretary of State for the Environment [1974] GM must not include in the agenda any
Ch 208. Every organisation needs a constitution. In “unlawful” business (cl 240(2) LGGR) and, in
the case of NSW local councils, and, the case of an extraordinary meeting, must
WHAT IS A MEETING? specifically, the conduct of their meetings, the ensure that the agenda deals only with the
“constitution” consists of the following: the matters stated in the notice of the meeting (cl
LGA, Pt 10 of the LGGR, Council’s CMP (if 242(1) LGGR).
A meeting is a coming together of, ordinarily,
any), and the ordinary law of meetings to the
2 or more persons: see Sharp v Dawes
extent to which that law is not inconsistent OPEN MEETINGS
(1867) 2 QBD 26. However, even in local
with the foregoing.
government, a meeting can consist of 1
person (eg an appointed administrator): see s Council must ensure that all meetings are
258 LGA. NOTICE OF MEETINGS open to the public: see s 10 LGA.
Council may adopt a code of meeting Part of a meeting can be closed to the public
Public notice of times and places of meetings
practice (CMP) that incorporates the to discuss any of the matters listed in
must be given: s 9(1) LGA; cl 232(1) LGGR.
regulations made for the purposes of s 360 s.10A(2) LGA or to consider a motion to
LGA (see, relevantly, Pt 10 “Meetings” close another part of the meeting to the
LGGR) and supplements those regulations GM must send notice of meeting to each public (see s 10A(3) LGA) but not otherwise.
with provisions that are not inconsistent with councillor at least 3 days (i.e. 3 clear days, See also ss 10B and 10C LGA.
them: s 360 (2) LGA. See also ss 361-364 exclusive of the day of giving notice and of
LGA re the CMP. the day of the meeting) before each meeting The matters listed in s 10A(2) LGA are:
of Council: s 367(1) LGA; cl 262(1) LGGR. (a) personnel (i.e. Council staff) matters
Council and any committee of Council of concerning particular individuals (other than
which all the members are councillors must Less than 3 days notice is permissible in the councillors),
conduct its meetings in accordance with the (b) the personal hardship of any resident or
case of an extraordinary meeting called in an ratepayer,
CMP adopted by it: s 360(3) LGA. emergency: s 367(2) LGA; cl 262(2) LGGR. (c) information that would, if disclosed, confer a
commercial advantage on a person with
A failure to comply with the CMP does not Notice must be sent to each councillor. This whom Council is conducting (or proposes to
invalidate: s 374(e) LGA. However, the requirement cannot be waived. See cl 241 conduct) business,
position may well be otherwise where there is (d) commercial information of a confidential
LGGR. See also Young v Ladies’ Imperial nature that would, if disclosed, prejudice the
a failure to comply with the Act or the Club Ltd [1920] 2 KB 523; Re Merchants and commercial position of the person who
regulations (relevantly, Pt 10 LGGR). Shippers, Steamship Lines Ltd (1917) 17 SR supplied it, or confer a commercial advantage
(NSW) 146. on a competitor of the council, or reveal a
TYPES OF COUNCIL MEETINGS trade secret,
٠Ordinary meeting ٠Extraordinary meeting
(e) information that would, if disclosed, prejudice
The notice must issue with proper authority, the maintenance of law,
i.e. by or on behalf of the GM, and must state (f) matters affecting the security of Council,
ORDINARY MEETINGS whether the meeting is ordinary or councillors, Council staff or Council property,
extraordinary and the business to be dealt (g) advice concerning litigation, or advice that
with. See Henderson v Bank of Australasia would otherwise be privileged from production
An ordinary meeting is one held according to (1890) 45 Ch D 330; Kaye v Croydon in legal proceedings on the ground of legal
the prearranged and publicly notified Tramways Co [1898] 1 Ch 358. professional privilege (see, however, s 10B(2)
schedule. LGA)
2. 2
(h) information concerning the nature and chairperson rises, all others must remain is impermissible and must not be accepted.
location of a place or an item of Aboriginal seated and be silent: see cl 237 LGGR. (The test for determining a direct negative is
significance on community land. to enquire whether an adverse vote on the
The duty of the chairperson is: motion achieves the same result.)
The grounds on which part of a meeting is
to receive and put to the meeting any
closed: lawful motion that is brought before the A motion may be divided into separate
must be stated in the decision to close meeting (cl 238 LGGR) motions (and the chairperson may so insist)
that part of the meeting, and
to ensure that Council’s CMP and all provided its component parts are not
must specify why the part of the meeting other relevantly applicable legislation interdependent. (Alternatively, the
is being closed, including (if the matter are observed throughout the meeting chairperson may allow the motion to be
concerned is a matter other than a
to “protect the forum” (that is, ensure debated as one but then put to the vote in its
personnel matter concerning particular several parts.)
that all members have a fair opportunity
individuals, the personal hardship of a to participate and put forward their In the absence of the maker of the notice of
resident or ratepayer or a trade secret) respective points of view). motion, another councillor may move the
an explanation of the way in which motion. Alternatively, the chairperson may
discussion of the matter in an open The chairperson must rule “out of order” any defer the motion to the next meeting of
meeting would be, on balance, contrary motion that is “unlawful” or the Council. See cl 245 LGGR.
to the public interest. See s 10D LGA.
implementation of which would be “unlawful”
(see cl 238 LGGR) and may also reject any Seconding
The chairperson must make public any motion that is “redundant”, lacks certainty or
resolution to close part of a meeting to the A motion (as well as an amendment to the
finality, or is “irrelevant” to the matter before
public: cl 253 LGA. See also s 11 LGA re the meeting. motion) must be moved and ordinarily
public access to correspondence and reports. seconded before debate can occur: cl 246
The chairperson, if the mayor, may, without LGGR. Seconding may be pro forma to
See cl 273 LGGR re tape recording of notice, place a motion before the meeting in prevent the motion from “falling to the ground
meetings. See, generally, the DLG’s OMG. the form of an official (“mayoral”) minute: cl (floor)”. Neither the mover of an original
243 LGGR. The motion needs no seconding. motion nor its seconder may second an
THE QUORUM amendment to that motion. No person may
ORDER OF BUSINESS move or second more than one amendment
A meeting without a quorum has no power to to each motion. A seconder need not speak,
do anything except adjourn. Any business may speak immediately after the proposer of
The order of business may be altered if a
transacted without a quorum is invalid. See cl the motion has spoken, or may speak later if
motion to that effect (which can be moved
233 LGGR where there is no quorum. See right to do so has been reserved, subject to
without notice) is carried: cl 239 LGGR.
also Myer Queenstown Garden Plaza Pty Ltd any formal motion that may terminate
v City of Port Adelaide (1975) 33 LGRA 70. discussion.
NOTICE OF BUSINESS
The quorum for a meeting of Council is a Seconding is not required for official
Business may not ordinarily be transacted (mayoral) minutes (cl 243(2) LGGR) and
majority of the councillors who hold office for
without notice: cl 241(1) LGGR. However, closure (gag) motions (cl 250(5) LGGR).
the time being and are not otherwise
business may be transacted without notice if:
suspended from office or disentitled from
the business is already before the
voting on a matter (eg by reason of a
council (cl 241(2)(a) LGGR) or Withdrawal of motions
pecuniary interest). See s 368 LGA. See also
Levenstrath Community Association Inc v the business is the election of a
Nymboida SC (1999) 105 LGERA 362. chairperson to preside at the meeting (cl A motion, once accepted by the chairperson
241(2)(b) LGGR) or and placed before the meeting, can only be
The quorum for a meeting of a committee of the business is put to the meeting by withdrawn with the unanimous consent of the
Council is a majority of the members of the way of an official (mayoral) minute (cll meeting. If an amendment has been moved,
committee unless Council determines 241(2)(c) and 243 LGGR) or the original motion cannot be withdrawn
otherwise: cl 260(3) LGGR. the business is a motion for the unless the amendment is first withdrawn.
adoption of a committee
A decision supported by a majority of the recommendation (cl 241(2)(d) LGGR) or Dealing with amendments
votes at a meeting of the council at which a a motion is passed to that effect and the
quorum is present is a decision of the business is ruled by the chairperson to The mover of an original motion may “take on
council: s 371 LGA. be of “great urgency” (cll 241(3) and board” an amendment thus obviating the
242(2) LGGR) or need to deal with a formal amendment.
Deliberate withdrawal from a meeting to the matter is a “motion of dissent” (cl
frustrate a quorum is wrong and possibly 248(1) LGGR). Otherwise, where there is an amendment as
actionable: see Borg v Shire of Kyneton such, the chairperson, at the end of the
(1986) 26 APA 77; Ball v Pearsall (1987) 10 MOTIONS AND AMENDMENTS debate, will call for a vote upon the
NSWLR 700. amendment. If the amendment is carried,
and there be no further amendment, the
A motion is a proposal to do X (that is, take
amended motion known as the “substantive
THE CHAIRPERSON certain action), should be in affirmative form,
motion”, not the “original motion”) is open for
and is formally presented as: “I move that
further discussion or amendment before
Without a chairperson a meeting cannot …”.
being put and voted upon. (NOTE. It is not a
transact business: see Colorado case of “the amendment becomes the
Constructions Pty Ltd v Platus [1966] 2 Motions should not be made with respect to
motion”.) If the amendment is lost, discussion
NSWR 598. “Mickey Mouse” matters, that is, matters with
of the original motion continues.
which a local council has no concern: see
The mayor or, at the request of or in the Lynch v Brisbane CC (1961) 104 CLR 353 at
A motion cannot be amended after it has
absence of the mayor, the deputy mayor (if 364; Ex p S F Bowser & Co; Re Randwick
been voted on: see Montgomerie’s Brewery
any) presides at Council meetings: s 369(1) MC (1927) 27 SR (NSW) 209 at 215.
v Spencer (1898) 5 ALR 112. Also, a
LGA. If the mayor and the deputy mayor (if modification to a motion already on the floor
any) are absent, a councillor elected to chair Any member, other than the mover of the
cannot be made by the mover, prior to
the meeting by the councillors present original motion or its seconder, may move an
disposition of the motion, if any other person
presides at a Council meeting: s 369(2) LGA. amendment to that motion. An amendment
objects.
to a motion is also a motion. An amendment
The chairperson (the “first among equals”) is a proposal to change a motion. However,
No more than one motion and one proposed
has the highest priority as “mover”. If the an amendment that creates a direct negative
amendment can be before the council at any
3. 3
one time: cl 247 LGGR. See also Campbell v The motion of dissent (which requires favour of the motion or amendment and at
AMP Society (1906) 7 SR (NSW) 99. seconding) then takes precedence over all least 2 councillors have spoken against it.
However, a councillor or committee member other business which is suspended until the See cl 250(4) LGGR.
may "foreshadow" a motion or an motion of dissent is dealt with.
amendment proposed to be moved following A valid closure motion must be put
consideration of the first motion or A motion of dissent, by convention, is usually immediately to the vote without debate (cl
amendment. put to the vote in the reverse form, viz, “That 250(5) LGGR; cf Wall v London and
the chairperson’s ruling be upheld”, even Northern Assets Corp [1898] 2 Ch 469) and,
Rescission motions though it is debated as a motion of dissent. It if passed, the original motion or amendment
is ordinarily declared carried where there is must, without further debate, be put to the
See s 372 LGA. A resolution may not be an equality of votes (cf s 370(2) LGA). vote immediately after the mover of the
altered or rescinded except by a motion to original motion has exercised his or her right
that effect given with notice. Only the mover of the motion of dissent and of reply (cl 250(6) LGGR).
the chairperson can speak to the motion
If notice of motion to rescind a resolution is before it is put, and there is no right of See also “ADJOURNMENT”.
given at the meeting at which the resolution is general reply: cl 248(3) LGGR.
carried, the resolution must not be carried VOTING
into effect until the motion of rescission has See also “FORMAL MOTIONS”.
been dealt with. Each councillor has one vote: s 370(1) LGA.
DEBATE
A notice of motion to alter or rescind a The person presiding at the meeting also
resolution must be signed by 3 councillors if A councillor must not, without the consent of has, in the event of an equality of votes, a
less than 3 months has elapsed since the Council, speak more than once on a motion second or casting vote: s 370(2) LGA. That
resolution was passed. or an amendment or for longer than 5 vote need not be exercised so as to maintain
minutes at any one time: cl 250(3) LGGR. the status quo.
A rescission motion may be dealt with,
without notice, at the same meeting as the Where 2 or more rise at the same time the A person is who is present at a Council
one at which the original resolution was chairperson decides whom to recognize, meeting (and one cannot participate in a
carried only upon the recommendation of a having regard to the following: (1) the mover meeting of Council unless “personally
committee of council, including the committee of the motion or amendment takes initial present” at the meeting: cl 235 LGGR), but
of the whole but not otherwise. precedence in debate, (2) a new speaker who fails to vote on a motion (except where
takes precedence over one who has already prevented from so doing by reason of a
Certain types of resolutions, by their very spoken to the motion or amendment, and (3) pecuniary interest (see below)), is taken to
nature, are incapable of being rescinded or the provisions of cl 250 LGGR and the need have voted against the motion: cl 251(1)
altered in the absence of express statutory to allow for opposing views. LGGR.
authority so to do: see eg AG ex rel Goddard
v North Sydney MC (1973) 28 LGRA 218; The mover of a motion has a “right of general A councillor or a committee member who has
Randwick CC v Nancor Trading Co Pty Ltd reply” in relation to the motion and to any a “pecuniary interest” (see ss 442 and 448
(2002) 120 LGERA 261. Other types of amendment to it (as well as the right to LGA) in any matter with which Council is
decisions creating or affecting other persons’ speak on any such amendment): cl 250(1) concerned and who is present at a meeting
rights and interests, once communicated, are LGGR. of Council or the committee at which the
also generally incapable of being rescinded matter is being considered must disclose the
or altered. See Ex parte Wright; Re Concord nature of the interest to the meeting as soon
FORMAL MOTIONS
MC (1925) 7 LGR (NSW) 79; Ex parte as practicable, must not be present at, or in
Forssberg; Re Warringah SC (1927) 27 SR sight of, the meeting of Council or the
(NSW) 200; Shanahan v Strathfield MC 1. The previous question (“That the
question be not now put”). committee at any time during which the
(1973) 28 LGRA 218; Northcott Pike & matter is being considered or discussed by
Associates Ltd v Berri DC (1984) 55 LGRA 2. The closure (“That the question be now
put”). Council or the committee, or at any time
119. Specific legal advice should be sought in during which Council or the committee is
respect of these 2 types of matters which 3. Proceed to next business.
4. Adjournment of debate. voting on any question in relation to the
may involve decisions concerned with the matter: s 451(1) and (2). (This does not,
making of rates, the granting of statutory 5. Adjournment of meeting.
6. That the question lie on the table. however, apply where the interest in the
approvals, and the acceptance of tenders. matter is of a kind referred to in s 448: s
None of these motions can be moved or 451(3) LGA.) A failure of a councillor or a
Ratification committee member to disclose a pecuniary
seconded by a person who has moved,
seconded or spoken to the original motion. interest, or to refrain from the consideration
An invalid decision cannot subsequently be The chairperson has the discretion to reject or discussion of, or vote on, the relevant
ratified: see Myer Queenstown Garden Plaza the formal motion the previous question. The matter, at a Council or committee meeting
Pty Ltd v City of Port Adelaide (1975) 33 speaker cannot be interrupted in all cases does not invalidate: s 374(d) LGA.
LGRA 70. except in the case of the closure. Seconding
is required in all cases, except in the case of Voting is ordinarily by open means (eg on the
Motions of dissent the closure. Discussion is permitted (i.e. voices or show of hands): cl 251(5) LGGR.
previous speakers may speak again) in all
cases (and in the case of the formal motion The decision of the chairperson as to the
There is no such thing as a “vote of no result of a vote is final unless the decision is
confidence” (or a “no-confidence motion”) in the previous question, on the main motion as
well), except in the cases of the closure and immediately challenged and not fewer than 2
NSW local government law. Even a motion councillors rise and demand a division: cl
of dissent (see below) must relate to a proceed to next business.
251(3) LGGR.
specific ruling of the chairperson and not to
that person’s handling of the meeting. The Closure
A decision supported by a majority of the
A councillor (but not the mover or seconder votes at a meeting of the council at which a
A councillor can, without notice, move to quorum is present is a decision of the
dissent from the ruling of the chairperson on of the original motion or any amendment to
it) may move a “closure motion” (that is, that council: s 371 LGA.
a point of order: cl 248(1) LGGR. (A point of
order can be raised at any time, and the the motion or the amendment “be now put”) if
chairperson must give a ruling on it. Any the mover of the motion or amendment has ADJOURNMENT
dissent must be moved immediately after the spoken in favour of it and no councillor
chairperson’s ruling.) expresses an intention to speak against it A meeting, as well as any debate on a
OR at least 2 councillors have spoken in