Governance and Regulatory Services – Councils under investigation and the Minister’s New Powers

As many of you will be aware, the final tranche of amendments made by the Local Government (Accountability Framework) Amendment Act 2009 (the amendments) commenced operation on 10 December 2011.

Some of the major changes with potentially the greatest effect on are those to the Minister’s investigatory powers, arising from deficiencies identified during the course of the Burnside investigation.

The Minister’s investigatory powers have been substantially increased by the amendments. The amendments insert two new provisions in the Local Government Act 1999 (the Act): Section 271A about the provision of information to the Minister; and, Section 271B enabling the Minister to request a council take steps to ensure reasonable standards are observed by the council.

Under the new section 271A, the Minister can now request, in writing, information relating to the affairs or operations of a council before commencing an investigation. Section 271B gives the Minister powers to specify the specific action that councils would need to undertake to satisfy the Minister that they are meeting appropriate standards of conduct or administration
These provisions may result in the imposition of new administrative burdens on councils.

It is also likely that, as with all new legislative provisions, there will be some disagreement about the actual scope of the powers now vested in the Minister under these provisions and how these new provisions fit within the legislative scheme governing the Minister’s powers to conduct investigations, of both a preliminary nature and full investigation under section 272 of the Act.
Another important new provision is the Minister’s new power to expand the terms of the investigation if additional matters arise that warrant investigation.

These broader and less formal investigatory powers mean that councils, more than ever, will be under the microscope. Councils should ensure that their processes are open, transparent and accountable and that they are achieving not only legislative compliance, but also best practice in the conduct of their business or face public scrutiny. We recommend that councils consider designating relevant officers for the purpose of dealing with requests and recommendations from the Minister, and implementing appropriate procedures for this purpose.

For further information on any of the material contained in this article please contact Felice D'Agostino on 8210 1202 or fdagostino@normans.com.au or George Karzis on 8210 1217 or gkarzis@normans.com.au

Governance and Regulatory Services - Supported Residential Facilities – Your Obligations

The recent Quakers Hill Nursing Home fire in New South Wales provides a timely reminder to ensure that regulatory controls to protect the safety of residents at supported residential facilities.

Eleven people died and 32 people were injured after a fire, allegedly lit by a registered nurse employed by the nursing home, ravaged the outer western suburbs facility.

Under the Supported Residential Facilities Act 1992 (the Act), councils have a responsibility to grant licences to supported residential facilities within their area.  Councils are also required to inspect such premises to ensure they remain compliant with the Act and the Supported Residential Facilities Regulations 2009 (the Regulations).

When granting a licence, councils are able to require the licensee to meet certain conditions, either prescribed in the Regulations, or otherwise considered necessary or expedient by the council for advancing the purposes of the Act.

Regulation 23 of the Regulations provides that the proprietor of a supported residential facility must ensure that reasonable precautions are taken to protect the safety of the residents of the facility from fire.  The Regulations provide minimum standards that each facility must meet to achieve compliance.  To that end, it is appropriate for councils to include conditions relating to fire safety in any licences granted by them under the Act, and to monitor the compliance with those conditions, and the Regulations, on a regular basis.

If they have not already done so, councils should review licences granted under the Act to ensure that the conditions imposed meet the minimum requirements of the Regulations, and are otherwise sufficient to ensure the safety, comfort and convenience of residents.

For further information on any of the material contained in this article please contact Kate Oliver on 8210 1226 or koliver@normans.com.au or Dale Mazzachi on 8210 1221 or dmazzachi@normans.com.au.

Employment - The Work Christmas Party - Some Common Sense Tips for Employers to Avoid Litigation and Still Have a Good Time

Yes, it’s that time of year again.  Law firms and consultants are releasing flyers designed to scare you witless about the risks associated with work Christmas functions in the modern legislative and litigious environment. Makes you wonder whether the spirit of Christmas is dead?

It is too simplistic to just advise you not to do numerous fun things to celebrate the festive season with your employees and co-workers to avoid the possibility of sexual harassment, bullying, discrimination or workers’ compensation claims.

We at Norman Waterhouse do not believe that such advice is practical. If you accepted all of the warnings, no-one would have Christmas functions at all.

The simple fact is that employers arrange Christmas functions for their staff. There are positive morale and team building benefits to be obtained from properly organised and appropriate celebrations. If an employer exercises a reasonable degree of responsibility and common sense in hosting an end of year function, this will go a long way towards minimising any potential “liability”. 

Here is a list of suggested “Dos” and Don’ts” that we recommend you consider as a starting point.

Do

• Have a definitive start and finish time for your function.
• Monitor any individual alcohol excesses.
• Ensure food is provided and (hopefully) consumed.
• Consider providing cab charge vouchers or some kind of alternative transportation methods to driving for employees leaving the function.
• Instruct and advise managers, supervisors and/or owners of the business to keep an eye out for inappropriate behaviour by employees towards others.
• If “Kris Kringles” are arranged, advise employees to keep their Kris Kringles appropriate and to generally be aware of cultural, religious or other sensitivities that not only the recipients of the gifts may have, but also others who may see the gifts.
• Consider having a theme with prizes and/or a raffle (to punctuate the event in a fun way and also to help slow down the alcohol consumption).
• Remind all staff beforehand that the Christmas party remains a workplace event and all OH&S, sexual harassment and other codes of conduct apply.

Don’t

• Serve alcohol to staff who are not yet 18 years of age.
• Continue serving alcohol to someone who appears to be intoxicated.
• Provide drinks after the designated finish time.
• Allow intoxicated people to drive.
• Require employees to sit on Santa’s knee to receive their Christmas gift, or kiss Santa, or “kiss the boss”.
• Place mistletoe anywhere.
• Allow inappropriate tomfoolery or conduct towards others.
• Arrange “after parties”.

These are a few simple suggestions to balance festivities with the need to be a responsible employer.  Simple planning and some common sense in line with the above is a good way to approach Christmas functions.

For further information on any of the material contained in this article please contact Michael Foley on 8217 1355 or mfoley@normans.com.au.

Property, Infrastructure and Development - The Final Accountability Framework Provisions Are Now Here

Contemporary local government legislation reflects South Australia’s growth in recent years.  It attempts to strengthen and support local government to maximise opportunities for the expansion of initiatives while being mindful of the transparency and probity requirements that must be, and be seen to be, undertaken by local government in their day-to-day dealings.

Over the last 24 months the Local Government (Accountability Framework) Act 2009 (Amending Act) has substantially amended parts of the Local Government Act 1999 (Act).  These amendments have necessitated some extensive reforms by councils to their internal processes. The reforms arose from a need to build stronger local governments that are better able to deliver on their long term plans for sustainability and viability and to meet community service obligations.

The prACTicalities

The remaining inoperative provisions of the Amending Act came into force by default on 10 December 2011. These provisions complete the implementation of the South Australian Government’s measures to increase the transparency of local government operations, particularly in relation to the expenditure of public funds, and to improve councils’ financial management and accountability. 

As councils’ use of public funds is under scrutiny in the current economic climate now more than ever, it is important that councils comply, and are seen to be complying, with these new legislative requirements.  Below, we summarise the changes that will have the greatest impact on the property, infrastructure, development and procurement sectors of local government.

Section 48 (aa1) of the Act

A new sub section (aa1) is inserted into the current section 48 of the Act.  This new section requires each council to develop and maintain prudential management policies, practices and procedures to be applied to all council projects, regardless of a project’s size.

These policies, practices and procedures are intended to ensure that a council:

• acts with due care diligence and foresight;
• identifies and manages risks associated with a project;
• makes informed decisions; and
• is accountable for the use of council and other public resources.
• These changes are designed to enhance councils’ prudential management.  Councils’ role includes providing and co-ordinating various public services and facilities and developing community resources in a socially just and ecologically sustainable manner. 

This requires a balanced focus on community outcomes and financial sustainability. This amendment requires that projects are managed in a manner that captures the proposed benefits, while minimising, offsetting or otherwise taking account of the foreseeable risks. This amendment seeks to balance the value of community outcomes against the cost of achieving those outcomes.

Section 49 (a1) of the Act

A new sub section (a1) is inserted into Section 49 of the Act which requires councils to develop and maintain procurement policies, practices and procedures directed towards:

• obtaining value in the expenditure of public money;
• providing for ethical and fair treatment of participants; and
• ensuring probity, accountability and transparency in procurement operations.

The purpose of this amendment is to ensure transparency and accountability for council decisions in relation to procurement.  It makes it even more important for councils to ensure good probity practices in all of their procurement processes. 

As one size does not fit all, the legislation may enable councils to implement processes to suit their particular size, location and administrative circumstances. Whilst this provides some flexibility, it will be subject to any base level requirements prescribed by the anticipated Regulations for section 49 of the Act.  It is our understanding that the intention behind the new legislation is to balance this increased discretion for councils by prescribing consistent integrity, accountability and transparency requirements for local governments generally. This will generate a more uniform approach to councils’ business especially where councils are contracting with third parties.

Section 155 (11) of the Act

The new sub section (11) will be inserted into section 155 of the Act. This sub section provides that if a prescribed service (which includes the collection of waste and the treatment or provision of water) cannot be accessed by a piece of land in a council area, a council may not impose a service rate or annual service charge in relation to that piece of land unless authorised by regulation or the charge complies with a scheme prescribed by regulation.

Section 270 (a1) and (a2) of the Act

The implementation of subsections (a1) and (a2) into section 270 of the Act requires councils to develop and maintain policies, practices and procedures for dealing with requests for the provision of, or improvement of services. This amendment requires councils to deal with requests or complaints in a timely and fair manner and use the information gained from the community to improve services and operations.

Accompanying Regulations

It should be noted that the Amending Act stipulates in a number of sections that it will be supplemented by Regulations that will govern essential but subordinate operational and administrative issues. It is our understanding that there may be a delay in relation to the implementation of some of those Regulations and we will keep you appraised of the progress made in relation to this.

For further information on any of the material contained in this article please contact Lisa Hubbard on 8217 1369 or lhubbard@normans.com.au or Trevor Gormley on 8210 1246 or tgormley@normans.com.au.

Merry Christmas from Normans.

Normans will be closed from 5pm Friday 23rd of December 2011 and will reopen Tuesday 3rd of January 2012.