Chapter 4 How can the community influence what a council does?

Introduction. Under this Chapter, meetings of the council and its committees are required, as a general rule, to be open to the public.

The Chapter provides for public access to information held by councils.

Apart from the provisions of this Chapter, members of the public may influence council decisions concerning matters such as the levels of rates and charges, the terms of management plans, the granting of development consents, etc (which are dealt with in later Chapters) by making submissions, including comments on or objections to proposals relating to those matters.

The Chapter also enables the council to ascertain the views of the local community on various matters through 2 types of polls which may be conducted in the area. A summary of these polls is contained in Part 3 of this Chapter.

Part 1 Open meetings

9   Public notice of meetings

(1)  A council must give notice to the public of the times and places of its meetings and meetings of those of its committees of which all the members are councillors.

(2)  A council and each such committee must have available for the public at its offices and at each meeting copies (for inspection or taking away by any person) of the agenda and the associated business papers (such as correspondence and reports) for the meeting.

(2A)  In the case of a meeting whose agenda includes the receipt of information or discussion of other matters that, in the opinion of the general manager, is likely to take place when the meeting is closed to the public:

(a)  the agenda for the meeting must indicate that the relevant item of business is of such a nature (but must not give details of that item), and

(b)  the requirements of subsection (2) with respect to the availability of business papers do not apply to the business papers for that item of business.

(3)  The copies are to be available to the public as nearly as possible to the time they are available to councillors.

(4)  The copies are to be available free of charge.

(5)  A notice given under this section or a copy of an agenda or of a business paper made available under this section may in addition be given or made available in electronic form.

10   Who is entitled to attend meetings?

(1)  Except as provided by this Part:

(a)  everyone is entitled to attend a meeting of the council and those of its committees of which all the members are councillors, and

(b)  a council must ensure that all meetings of the council and of such committees are open to the public.

(2)  However, a person (whether a councillor or another person) is not entitled to be present at a meeting of the council or of such a committee if expelled from the meeting:

(a)  by a resolution of the meeting, or

(b)  by the person presiding at the meeting if the council has, by resolution, authorised the person presiding to exercise the power of expulsion.

(3)  A person may be expelled from a meeting only on the grounds specified in, or in the circumstances prescribed by, the regulations.

10A   Which parts of a meeting can be closed to the public?

(1)  A council, or a committee of the council of which all the members are councillors, may close to the public so much of its meeting as comprises:

(a)  the discussion of any of the matters listed in subclause (2), or

(b)  the receipt or discussion of any of the information so listed.

(2)  The matters and information are the following:

(a)  personnel matters concerning particular individuals (other than councillors),

(b)  the personal hardship of any resident or ratepayer,

(c)  information that would, if disclosed, confer a commercial advantage on a person with whom the council is conducting (or proposes to conduct) business,

(d)  commercial information of a confidential nature that would, if disclosed:

(i)  prejudice the commercial position of the person who supplied it, or

(ii)  confer a commercial advantage on a competitor of the council, or

(iii)  reveal a trade secret,

(e)  information that would, if disclosed, prejudice the maintenance of law,

(f)  matters affecting the security of the council, councillors, council staff or council property,

(g)  advice concerning litigation, or advice that would otherwise be privileged from production in legal proceedings on the ground of legal professional privilege,

(h)  information concerning the nature and location of a place or an item of Aboriginal significance on community land.

(3)  A council, or a committee of the council of which all the members are councillors, may also close to the public so much of its meeting as comprises a motion to close another part of the meeting to the public.

(4)  A council, or a committee of a council, may allow members of the public to make representations to or at a meeting, before any part of the meeting is closed to the public, as to whether that part of the meeting should be closed.

(5), (6)  (Repealed)

10B   Further limitations relating to closure of parts of meetings to public

(1)  A meeting is not to remain closed during the discussion of anything referred to in section 10A (2):

(a)  except for so much of the discussion as is necessary to preserve the relevant confidentiality, privilege or security, and

(b)  if the matter concerned is a matter other than a personnel matter concerning particular individuals, the personal hardship of a resident or ratepayer or a trade secret—unless the council or committee concerned is satisfied that discussion of the matter in an open meeting would, on balance, be contrary to the public interest.

(2)  A meeting is not to be closed during the receipt and consideration of information or advice referred to in section 10A (2) (g) unless the advice concerns legal matters that:

(a)  are substantial issues relating to a matter in which the council or committee is involved, and

(b)  are clearly identified in the advice, and

(c)  are fully discussed in that advice.

(3)  If a meeting is closed during the discussion of a motion to close another part of the meeting to the public (as referred to in section 10A (3)), the consideration of the motion must not include any consideration of the matter or information to be discussed in that other part of the meeting (other than consideration of whether the matter concerned is a matter referred to in section 10A (2)).

(4)  For the purpose of determining whether the discussion of a matter in an open meeting would be contrary to the public interest, it is irrelevant that:

(a)  a person may misinterpret or misunderstand the discussion, or

(b)  the discussion of the matter may:

(i)  cause embarrassment to the council or committee concerned, or to councillors or to employees of the council, or

(ii)  cause a loss of confidence in the council or committee.

Note. Subsection (4) is in similar terms to section 59A (Public interest) of the Freedom of Information Act 1989.

(5)  In deciding whether part of a meeting is to be closed to the public, the council or committee concerned must have regard to any relevant guidelines issued by the Director-General.

10C   Notice of likelihood of closure not required in urgent cases

Part of a meeting of a council, or of a committee of the council of which all the members are councillors, may be closed to the public while the council or committee considers a matter that has not been identified in the agenda for the meeting as a matter that is likely to be considered when the meeting is closed, but only if:

(a)  it becomes apparent during the discussion of a particular matter that the matter is a matter referred to in section 10A (2), and

(b)  the council or committee, after considering any representations made under section 10A (4), resolves that further discussion of the matter:

(i)  should not be deferred (because of the urgency of the matter), and

(ii)  should take place in a part of the meeting that is closed to the public.

10D   Grounds for closing part of meeting to be specified

(1)  The grounds on which part of a meeting is closed must be stated in the decision to close that part of the meeting and must be recorded in the minutes of the meeting.

(2)  The grounds must specify the following:

(a)  the relevant provision of section 10A (2),

(b)  the matter that is to be discussed during the closed part of the meeting,

(c)  the reasons why the part of the meeting is being closed, including (if the matter concerned is a matter other than a personnel matter concerning particular individuals, the personal hardship of a resident or ratepayer or a trade secret) an explanation of the way in which discussion of the matter in an open meeting would be, on balance, contrary to the public interest.

10E   (Repealed)

11   Public access to correspondence and reports

(1)  A council and a committee of which all the members are councillors must, during or at the close of a meeting, or during the business day following the meeting, give reasonable access to any person to inspect correspondence and reports laid on the table at, or submitted to, the meeting.

(2)  This section does not apply if the correspondence or reports:

(a)  relate to a matter that was received or discussed, or

(b)  were laid on the table at, or submitted to, the meeting,

      when the meeting was closed to the public.

(3)  This section does not apply if the council or committee resolves at the meeting, when open to the public, that the correspondence or reports, because they relate to a matter specified in section 10A (2), are to be treated as confidential.

Part 2 Access to information

12   What information is publicly available?

(1)  Everyone is entitled to inspect the current version of the following documents free of charge:

•  the model code prescribed under section 440 (1) and the code of conduct adopted by the council under section 440 (3)

•  the council’s code of meeting practice

•  annual report

•  annual financial reports

•  auditor’s report

•  management plan

•  EEO management plan

•  the council’s policy concerning the payment of expenses incurred by, and the provision of facilities to, councillors

•  the council’s land register

•  register of investments

•  returns of the interests of councillors, designated persons and delegates

•  agendas and business papers for council and committee meetings (but not including business papers for matters considered when part of a meeting is closed to the public)

•  minutes of council and committee meetings, but restricted (in the case of any part of a meeting that is closed to the public), to the resolutions and recommendations of the meeting

•  the register of current declarations of disclosures of political donations to councillors kept in accordance with section 328A

•  the register of councillor voting on planning matters kept in accordance with section 375A

•  any codes referred to in this Act

•  register of delegations

•  annual reports of bodies exercising delegated council functions

•  development applications (within the meaning of the Environmental Planning and Assessment Act 1979) and associated documents

•  local policies adopted by the council concerning approvals and orders

•  records of approvals granted, any variation from local policies with reasons for the variation, and decisions made on appeals concerning approvals

•  records of building certificates under the Environmental Planning and Assessment Act 1979

•  plans of land proposed to be compulsorily acquired by the council

•  leases and licences for use of public land classified as community land

•  plans of management for community land

•  environmental planning instruments, development control plans and contributions plans made under the Environmental Planning and Assessment Act 1979 applying to land within the council’s area

•  the statement of affairs, the summary of affairs and the register of policy documents required under the Freedom of Information Act 1989

•  Departmental representatives’ reports presented at a meeting of the council in accordance with section 433

•  the register of graffiti removal work kept in accordance with section 67C.

(1A)  Despite subsection (1) and the other provisions of this Act, a person does not have the right to inspect so much of a development application as consists of:

(a)  the plans and specifications for any residential parts of a proposed building, other than plans that merely show its height and its external configuration in relation to the site on which it is proposed to be erected, or

(b)  commercial information, if the information would be likely:

(i)  to prejudice the commercial position of the person who supplied it, or

(ii)  to reveal a trade secret.

(2)  Everyone is entitled to inspect free of charge:

(a)  a document that was replaced by a current document referred to in subsection (1), and

(b)  if a document referred to in subsection (1) is produced annually—the corresponding document produced for the previous year.

(3)  The documents may be inspected at the office of the council during ordinary office hours.

(4)  (Repealed)

(5)  The council must allow inspection of versions of the documents other than the current and immediately preceding versions if those other versions are reasonably accessible.

(6)  The council must allow inspection of its other documents free of charge unless, in the case of a particular document, it is satisfied that allowing inspection of the document would, on balance, be contrary to the public interest.

(7)  However, subsection (6) does not apply to the part (if any) of a document that deals with any of the following:

(a)  personnel matters concerning particular individuals (other than councillors),

(b)  the personal hardship of any resident or ratepayer,

(c)  trade secrets,

(d)  a matter the disclosure of which would:

(i)  constitute an offence against an Act, or

(ii)  found an action for breach of confidence,

(e)  that part of a draft or adopted plan of management that is the subject of a resolution of confidentiality under section 36DA.

(8)  For the purpose of determining whether allowing inspection of a document would be contrary to the public interest, it is irrelevant that the inspection of the document may:

(a)  cause embarrassment to the council or to councillors or to employees of the council, or

(b)  cause a loss of confidence in the council, or

(c)  cause a person to misinterpret or misunderstand the information contained in the document because of an omission from the document or for any other reason.

Note. Subsection (8) is in similar terms to section 59A (Public interest) of the Freedom of Information Act 1989.

Note. A council could also make copies of the documents available at other places, for example, at libraries.

A council may have other information available for inspection free of charge: for example, the rate record, the valuation list and the register of dog registrations.

12A   Restriction of access to information

(1)  If the general manager or any other member of the staff of a council decides that access to a document or other information held by the council should not be given to the public or a councillor, the person concerned must provide the council with written reasons for the restriction.

(2)  The reasons must be publicly available.

(3)  The council must review any such restriction no later than 3 months after it is imposed.

(4)  The council must, at the request of any person made after the expiry of a period of 3 months after that review (or of a period of 3 months after the most recent of any subsequent reviews), carry out a further review of the restriction.

(5)  The council must remove the restriction if, at any time:

(a)  it finds that there are no grounds for the restriction, or

(b)  access to the relevant document or other information is obtained under the Freedom of Information Act 1989.

(6)  A review is not required under this section if the restriction concerned has been removed.

12B   Copies of documents

(1)  A right under this Act to inspect a document includes the right to take away a copy of the document.

(2)  Accordingly, a council must have a copy of all relevant documents available for copying by, or on behalf of, any person who asks for one.

(3)  The copies may be taken away either free of charge or on payment of reasonable copying charges, as the council chooses (except as otherwise specifically provided by or under this Act).

(4)  This section does not apply to the following:

(a)  the residential roll of electors referred to in section 302 (1),

(b)  the information sheets of candidates for election referred to in section 308,

(c)  building certificates.

Note. Section 174 (3) provides that a person may obtain a copy of a building certificate from the council’s record with the consent of the owner of the building (and on payment of the approved fee).

13   Retention and preservation of records

The council must retain, preserve and destroy its records in accordance with any approved standards.

Part 3 Expressions of community opinion

Division 1 Council polls

14   Council polls

A council may take a poll of electors for its information and guidance on any matter.

Division 2 Constitutional referendums

15   What is a constitutional referendum?

A constitutional referendum is a poll initiated by a council in order to give effect to a matter referred to in section 16.

16   What matters must be dealt with at a constitutional referendum?

A council may not do any of the following unless approval to do so has been given at a constitutional referendum:

(a)  divide its area into wards or abolish all wards in its area,

(b)  change the basis on which the mayor attains office (that is, by election by the councillors or by election by the electors),

(c)  increase or decrease the number of councillors in accordance with the limits under section 224,

(d)  change the method of ordinary election of councillors for an area divided into wards.

(e)  (Repealed)

17   What is the effect of a constitutional referendum?

(1)  The decision made at a constitutional referendum binds the council until changed by a subsequent constitutional referendum.

(2)  However, such a decision does not apply to a by-election held after the constitutional referendum and before the next ordinary election.

Division 3 General provisions concerning a council poll or constitutional referendum

18   What provisions apply to the conduct of a council poll or constitutional referendum?

Part 1 and Part 6 (except Divisions 3, 4 and 5) of Chapter 10 (How are people elected to civic office?) apply to a council poll, and Part 1 and Part 6 (except Divisions 3 and 5) of that Chapter apply to a constitutional referendum, with such modifications as may be necessary, in the same way as they apply to an election.

Note. Part 1 of Chapter 10 identifies the people who are entitled to vote in council elections, and Part 6 governs the conduct of those elections.

Division 3 of Part 6 of that Chapter deals with nominations for election, Division 4 with failure to vote and Division 5 with miscellaneous matters such as irregularities of form or procedure in elections, overdue elections and those declared void.

19   Day for taking council poll or constitutional referendum

A council poll or constitutional referendum may be taken on any Saturday, including the Saturday of an ordinary election.

20   When is a question at a council poll or constitutional referendum carried?

(1)  The question at a council poll or constitutional referendum is carried if it is supported by a majority of the votes cast.

(2)  The reference to votes in subsection (1) does not include a reference to any vote that, pursuant to the regulations, is found to be informal.

 

Expressions of community opinion

Types of expression
Council Poll		Constitutional Referendum
Question to be determined
Any question		•  Creation or abolition of all wards •  Change in the way in which the mayor is chosen •  Change in number of councillors •  Change in the way councillors are elected for an area divided into wards
Result of Poll
If Yes	If No	If Yes	If No
Council chooses whether or not to proceed		Change must proceed	Change cannot proceed until passed by a later constitutional referendum