It is important to note that,

• The Commonwealth Privacy Act does not apply to WA Local Governments
• WA does not have a Privacy Act, but has privacy at  common law
• There is no general right of privacy under WA common law
• There is piecemeal protection of WA person’s privacy found in tort, equity, statutes, standards
• The right to privacy is political right, which may be protected by the WA criminal code in some circumstances
• It may be a crime to share a secretly recorded phone message without the consent of the parties to that message.

Prudent Elected Members will annually FOI the information held by their LG about them to ensure it is accurate and does not contain a breach of their privacy.

https://rockingham.wa.gov.au/forms-and-publications/your-city/about-us/local-laws-council-policies-and-delegations/council-policies

However, some amendments have not yet been proclaimed which means they are not yet operative.

The former version of the LG Act annotated with the adopted amendments in blue (some of which are proclaimed), so you can find the changes easily, is  here (pdf 2Mb)

The amendments, which have been proclaimed have been operative since 19 May 2023 and some since 1 July 2023 and are in the LG Act current as at 1 July 2023 here (https://www.legislation.wa.gov.au/legislation/statutes.nsf/main_mrtitle_551_homepage.html )

You can download a free copy of the newly amended Act  in pdf, or word (easier to copy bits from), versions from the website link above. If you download a word copy and search using catchword “2023”, you should find the changes which have been proclaimed.

We do not recommend buying hard copy until all the amendments have been proclaimed and are included in the Act (to purchase a copy you can click on the trolley icon beside the LG Act title, pay for it, and it will then be mailed to you).

Some of the regulations required to give substance to some of the provisions have been tabled. – some are operative and others are not.

Prudent Elected Members and Councils will familiarise themselves as a matter of urgency with changes to the practice and procedure for Local Government elections (not yet proclaimed but shown in the marked in blue copy here (pdf 2Mb)) , which will be held in October this year.

For some information about LG elections click here

The LG Act changes to electoral laws include move to optional preferential voting,  limiting wards to LGs with large populations, limiting EM numbers in smaller LGs, changes to filling casual EM vacancies and mayoral elections https://www.legislation.wa.gov.au/legislation/statutes.nsf/main_mrtitle_551_homepage.html )

The LG Elections Regulations have been amended to implement the new LG Act voting laws see https://www.legislation.wa.gov.au/legislation/statutes.nsf/main_mrtitle_1751_homepage.html

LGs always hold elections, which can be conducted by in-person (where people have to apply for a postal vote if they wish to vote by post) or postal elections (where voters can vote by post or on on the day with their ballot paper received by post).

The Local Government Act 1995 added the postal option to in-person voting, noting both options include provision for the other in certain circumstances.

Furthermore, in-person voting is the default position where postal election requirements are unmet.

In-person voting better fosters free and fair elections in the absence of compulsory voting. Fraudulent voting is easier with postal votes, and is thus necessarily more likely to influence low voter number outcomes.

Postal voting lacks a secure chain of custody of ballot papers delivered to unsecured letterboxes through the many unmonitored movements of the ballot paper right up to counting.

Electoral manipulation was formally exposed by the 2020 City of Perth Inquiry (link here https://www.parliament.wa.gov.au/webcms/webcms.nsf/content/city-of-perth-inquiry-report ) and in the Court of Disputed Returns ( https://www.sjshire.wa.gov.au/council-meetings/special-council-meeting/special-council-meeting-11-july-2022/536/documents/611-attachment-1-court-of-disputed-returns-2021-north-ward-election-sj-written-decision.pdf ). In the Serpentine Jarrahdale 2021 election , an unsuccessful candidate was later elected after the court overturned the first result because of stolen postal ballot papers.

Postal elections may cost more than in-person elections. Only the WAEC can conduct LG postal elections, which it does on a cost recovery basis paid from the LGs’ municipal funds. WAEC postal elections costs have risen significantly, almost double, since the 2021 ordinary elections. Furthermore, the WAEC and LG CEOs do not always prosecute electoral offences, which fosters the risk of unfair election tactics to preference candidates willing to commit offences, such as stealing and fraudulently voting using stolen papers. The WAEC can hold in-person elections.

LG CEOs are the default Returning Officer to conduct LG in person elections. Many commentators believe CEOs have a conflict of interest in the outcome of the LG elections, and should never be the Returning Officer (to run the LG in person election) nor should any LG employee be engaged as an electoral officer. Councils can tender for the conduct of their in- person election (noting WAEC will have to approve the winning tender) and/or they can ask the WAEC to quote for in-person elections and for postal elections. All prudent Councils will already have a report from the CEO about their current and proposed electoral arrangements, which can be changed up to but not after a specified date.

Please note that many LG election time lines have been moved to a week sooner by the recent changes to the LG Act. The DLGSC has an online date calculator but which does not appear to take account of the Interpretation Act when a date lands on a weekend or public holiday.

Australian state and federal compulsory in-person resident preferential/proportionate voting system is envied worldwide by democracy academics. Furthermore, buildings do NOT vote in state and federal elections, as quite shockingly they do in WA local government elections through enrolments on the owner/occupier rolls as decided by CEOs.

Until the LG  Minister requires compulsory local government voting (in compliance with Labor Party policy), as it is in all other Australian jurisdictions except South Australia, prudent Councils interested in free and fair election outcomes will consider not conducting their elections using postal voting or using  CEOs as Returning Officers.

See here for DLGSC notice about changes (https://www.dlgsc.wa.gov.au/department/news/news-article/2022/09/20/local-government-election-transitions )

There is, as at 24 May 2023, no DLGSC Operational Guideline about the new framework for Local Government candidates, elections and voting.

The DLGSC “Conduct of local government elections” is out of date, as accessed at 24 May 2023.

This is a link to a WAEC webinar about the Local Government Election vote counting process here LGE 2023: Information Q&A Webinar – View the recording | Western Australian Electoral Commission (elections.wa.gov.au).

1. Concerned inappropriate use of power as presiding member: para. 156
2. Confirmed Mayor made improper use of his office as EM of the City to cause detriment to others, made comments designed to diminish reputation of another EM, did not act impartially: para.s 142, 146, 167
3. Warrants a careful read by ALL EMs to understand some of the behaviours unacceptable in LG meeting Presiding Members, and which conduct can be complained about successfully
4. minor breach of reg 4 and reg 7(1)(b) of Local Government (Rules of Conduct) Regulations 2007 (WA) – Applicable principles – Reflect adversely – Impute motive – Whether improper use of office – Whether intent to cause detriment – Whether Panel made errors of fact – Procedural fairness

https://ecourts.justice.wa.gov.au/eCourtsPortal/Decisions/ViewDecision?id=0af48ac2-8f1c-4dd9-a372-2dfc0f571da5

You can download a copy of the submission here LGEMA-Submission-DLGSC-Law Reform-FINAL (1MB pdf)

The Constitution Act 1889 (WA) Part 111B s.52(1) gives all  local government powers including but not limited to executive, legislative and administrative to the local governing body. The elected governing body is a group of elected persons that have the authority to govern the locality. Constitutionally, local government powers cannot be given to other than to or through the elected governing body. Governance encompasses the system by which an organisation is controlled and operates, and the mechanisms by which it, and its people, are held to account. Ethics, risk management, compliance and administration are governance elements.

Parliament implements these constitutional obligations by enacting a Local Government Act, which creates a local government, a Council and an administration none of which are required by the Constitution. Elected Members, who ARE the only local government constitutional requirements have no support or protection by the current Local Government Act, and no improvement in this parlous state of affairs is observed from the current reform proposals.

25 February 2022 5pm: Submissions due, but if you need an extension request one before the closing date
Submissions: Summary of proposed reforms are on DLGSC website, submissions can be made by comment on each list of specific proposals, or directly  actreview@dlgsc.wa.gov.au

Councils: Prudent Councils will workshop the proposed amendments with an expert of their choice, and not necessarily adopt employee recommendations

Elected Members: Can make their own submissions as an EM, as long as they make clear they are making on their own behalf

Employee Submissions: Employee interests in LG Act amendments are often opposite to EM and community interests. Prudent EMs will monitor and Councils will prohibit CEO and electors will ask public questions at meetings about employee submissions being made on behalf of their Local  Government without Council knowledge or endorsement.

More than one submission: Any person, EM or Council can make more than one submission, so start making small ones now, so a mammoth task does not hover in the future

Elected Member Local Government email address can be “resource” for Conduct Regulations in two senses:

• text comprising the email address
• dedicated email service provided by LG.

Local Government email address is Local Government ‘resource’ for the purposes of the conduct Regulations
Authorisation by CEO or Council to use Local Government email in certain way might be implied as finding of fact, which includes from Local Government elections policy, or Record Keeping Plan.

Informal advice from Local Government employees about using Local Government email address needs formal recognition to be relied on as “defence”, say in policy or RKP.

Local Governments RKP only required EM to create and keep records of “performance of EM functions arising from their participation in “decision-making processes” of Council and Committees of Council.

EM reliance on WALGA training course slide misplaced, and cannot exempt Elected Member from complying with rule of conduct.

Elected Members use of the City’s email address, to create and distribute the 2020 e-newsletter, met relevant test of persuasion under Conduct Regs and was minor breach.

See Kunze and Local Government Standards Panel [2021] WASAT 159

The LOCAL GOVERNMENT ACT 1995 (WA) is an example of an Act of the WA Parliament, which establishes local government throughout Western Australia. It contains the law (binding rules) of how local government operates, including the role and conduct of Councils, Councillors and employees (including the CEO).

See here about the difference between law and policy.

Explanatory Note

The text of WA laws – Acts and Subsidiary Legislation such as Regulations – can be found here.
A beginner’s guide to reading laws is here.
Some Frequently Asked Questions about WA laws are here.
A “Bill” is the document Parliament debates when deciding whether or not to adopt it as an Act.
You can follow the passage of Bills through WA Parliament here.

Act

What is an Act of Parliament?

An Act of Parliament makes law. An Act can also authorise making subsidiary legislation, for example Regulations.
See here about the difference between law and policy.
Click here to see how to find current WA Acts of Parliament.

Subsidiary Legislation – Regulations

What is a Regulation?

A Regulation is always made under the authority of the Act to which it relates. A Regulation fills in the detail of an Act, where the detail might need to be changed more often than the Act itself, which takes much longer to change.

Twelve sets of Local Government Regulations made with the authority of the LOCAL GOVERNMENT ACT 1995 fill in the details of local government law.

Click here to see how to find current regulations.

Subsidiary Legislation – Local Laws

Local Laws are binding laws made by a particular local government, which apply only to that local government’s district.
The text of all local government local laws can be found here.

Look at the local laws already in force before expending municipal fund resources. Don’t reinvent the wheel. Selectively use clauses from all of them, and make one appropriate for your local needs. Examine any local law or local law amendment proposed by your CEO against the existing local laws.

Department of Local Government Sport & Cultural Industry (DLGSC) Policies

DLGSC 39 Local Government Policies see here.

Key words: “open space” – “CEO appointment” – “Dogs” –“ burials” –“land valuations” – “council motion clarity” – “council forums” – “declaring interest” –“delegation” – “ financial interest” –“ disruptive behaviour” – “elected member induction” –“ elected members and developers” –“ financial ratios” –“ guide to planning” –“ changing boundaries” –“ lawyers / legal advice for elected members” – “ local laws” –“public question time” – “net current assets” –“ differential rates” –“ rating policies” –“ credit cards” –“ grants commission”

Inspection of records and access to documents relating to guidance to the legislative and operational requirements associated with the inspection of and access to documents relating to licensed premises that are held by the licensing authority see here.

Local Policies

Payments to employees in addition to contract or award A local government is to prepare a policy, which complies with the s5.50 requirements in relation to employees whose employment with the local government is finishing: s5.50 Local Government Act 1995.