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Late Items

 

Council Agenda

 

 

 

26 September 2018

 

 

 

 

 


ALL INFORMATION AVAILABLE IN VARIOUS FORMATS ON REQUEST

city@busselton.wa.gov.au

 

 


CITY OF BUSSELTON

Late Items FOR THE Council MEETING TO BE HELD ON 26 September 2018

TABLE OF CONTENTS

 

ITEM NO.                                        SUBJECT                                                                                                                              PAGE NO.

16..... Finance and Corporate Services Report. 3

16.2        Councillor Paul Carter - Remote Attendance. 3

 


Council                                                                                      4                                                           26 September 2018

16.             Finance and Corporate Services Report

16.2           Councillor Paul Carter - Remote Attendance

SUBJECT INDEX:

Council Meeting

STRATEGIC OBJECTIVE:

Governance systems, process and practices are responsible, ethical and transparent.

BUSINESS UNIT:

Governance Services

ACTIVITY UNIT:

Governance Services

REPORTING OFFICER:

Administration Officer - Governance - Kate Dudley

Manager Governance and Corporate Services - Sarah Pierson

AUTHORISING OFFICER:

Director Finance and Corporate Services  - Tony Nottle

VOTING REQUIREMENT:

Absolute Majority

ATTACHMENTS:

Attachment a   Site Map  

  

PRÉCIS

 

The purpose of this report is to recommend to Council that they consider an arrangement allowing Councillor (Cr) Paul Carter to attend specified meetings of Council and the Finance Committee by telephone (or other means of instantaneous communication) as per Regulation 14A of the Local Government (Administration) Regulations 1996 (the Regulations).  This will require Council to also determine a “suitable place”, in addition to approving an arrangement.

 

BACKGROUND

 

Cr Carter has provided written notice to the Chief Executive Officer that he has accepted a position with BHP, working at the Yandi mine site, located 90kms North West of the town of Newman, Western Australia.  Cr Carter commenced employment with BHP on 4 September 2018 and will be working a 14 days on, 7 days off roster until 1 January 2019.  Post 1 January 2019 Cr Carter expects to be working an 8 days on, 6 days off roster.

 

Based on his current roster Cr Carter will be away for the Ordinary Council meetings held on 24 October 2018, 14 November 2018 and 28 November 2018 and the Finance Committee meeting on 15 November 2018. 

 

Additionally he will be away for the Agenda Briefing / Community Access Sessions on 3 October, 7 November and 5 December, noting that Regulation 14A does not apply to these and so they are not the subject of the recommendation.

 

It is anticipated (subject to confirmation of Council / Committee meeting dates and Cr Carter’s roster) that an 8 and 6 roster would enable Cr Carter to attend the majority of Council meetings, with fly in / out days expected to be on Tuesdays.

 

STATUTORY ENVIRONMENT

 

In accordance with Regulation 14A - Attendance by telephone etc - of the Regulations, sub-regulation (1), it is the role of the Council to determine that a person who is not physically present at a meeting of a council or committee is to be taken to be present at the meeting if the person is:

 

(a)  simultaneously in audio contact, by telephone or other means of instantaneous communication, with each other person present at the meeting; and

(b)  in a suitable place, and

(c)   the council has approved of the arrangement (by absolute majority). 


A council cannot give approval under sub-regulation (1)(c) if to do so would mean that at more than half of the meetings of the council, or committee, as the case may be, in that financial year, a person (other than a person with a disability) who was not physically present was taken to be present in accordance with Regulation 14A.

 

A suitable place (as per sub-regulation (4) (b) means a place that the council has approved (again by absolute majority) as a suitable place for the purpose of the regulation and must be located -

 

i.      in a townsite or other residential area; and

ii.     150 km or further from the place at which the meeting is to be held … measured along the shortest road route ordinarily used for travelling;

 

where townsite has the  same meaning given to that term in the Land Administration Act 1997 section 3(1).  That is, a townsite constituted by the Minister for Lands. 

 

Yandi Accommodation Village (YAV) is not located in a townsite.  Independent legal advice has confirmed however that there are strong grounds to conclude that it would meet the ‘other residential area’ requirements of the regulation.  Residential area is not defined in the Regulations.  In the absence of any legislative definition, the expression must be given its natural and ordinary meaning, in the context in which it appears, including the legislative object or purpose. Commonly held definitions of residential area focus on residential areas being districts or areas where people live, where housing predominates as opposed to industrial and commercial areas. 

 

The object or purpose of regulation 14A is to enable a Council member to participate in a Council meeting while not physically present.  The ‘suitable place’ qualification appears to be intended to ensure, to the satisfaction of an absolute majority of the Council, that the Council member is in an environment that is conducive to the Council member’s proper participation in the meeting and decision making process.  In that context, and particularly noting that Landgate information shows YAV listed as a Crown Lease for the purposes of an Accommodation Village, and the actual use of the YAV by BHP as an accommodation village for its employees working at the Yandi mine site, advice supports the YAV being an ‘other residential area’.  

 

RELEVANT PLANS AND POLICIES

 

There are no relevant plans of policies.

 

FINANCIAL IMPLICATIONS

 

There are no direct financial implications associated with the officer’s recommendation. 

 

In the event that there was an ongoing approval required and provided for Cr Carter under Regulation 14A, then the City would likely look to invest in improved technology to facilitate remote attendance at meetings.

 

LONG-TERM FINANCIAL PLAN IMPLICATIONS

 

There are no long term financial plan implications.

 

STRATEGIC COMMUNITY OBJECTIVES

 

The Report links to Key Goal Area 6 – Leadership of the City’s Strategic Community Plan 2017 and specifically the following Community Objective/s:

a.   6.3 – ‘Governance systems, process and practices are responsible, ethical and transparent’.

RISK ASSESSMENT

 

Given the absence of a legislative definition for ‘other residential area’, there is a risk that a different, interpretation could be taken as to whether the YAV meets the requirements of the Regulation.  Noting the legal advice received, Officers consider this risk to be low.

 

CONSULTATION

 

The City initially sought advice from the Department of Local Government, Sport and Cultural Industries (DLGSC) and the Western Australian Local Government Association (WALGA) in relation to whether Yandi would be considered as an ‘other residential area’. 

 

Both the DLGSC and WALGA indicated there was some ambiguity and that the only way to clarify that would be to test the matter through the court system.  The DLGSC indicated that, in the meantime, so long as the City is satisfied with the supporting information / rationale, then the decision rests with the council. WALGA noted the Local Government Act 1995 is intended to be an enabling piece of legislation and that, in their view, the Regulations weren’t intended at the time they were created to restrict people’s ability to engage in employment while an Elected Member.

 

Independent legal advice was sought further to this advice, and is outlined in the Statutory Environment section of this report.

 

OFFICER COMMENT

 

It is proposed that Cr Carter would dial in via telephone (VOIP conference call) for Council meetings and additionally team viewer via a laptop into the minutes PC.  This will enable Cr Carter to be heard and hear everything that is spoken into a microphone, and to have the same view as the other councillors in the chamber.  Cr Carter would of course also continue to utilise his Ipad to access the Hub, email etc.

  

With respect to a suitable place, it is proposed that Cr Carter utilise a conference / meeting room within YAV where available or, where not available, his private accommodation lodgings.  Attachment A is a map showing the layout of the YAV and indicating Cr Carter’s accommodation lodgings and the location of the conference / meetings rooms.    

 

Officers consider the following to be relevant considerations for Council in determining a suitable place:

·    A place where instantaneous communication can be easily maintained;

·    A place reasonably free of noise, distractions or interruptions;

·    A place where, as required, confidentiality can be maintained (noting that the majority of the time Council meetings are open to the public); and

·    A place where City provided equipment can be safely used without potential of damage.

 

Officers believe that Cr Carter’s accommodation lodgings, which we understand to be a single bed donga, would satisfy most of the considerations above, noting that officers are unable to verify whether complete confidentiality can be maintained for confidential items.   While Cr Carter would be on his own in his accommodation lodgings, officers are unsure of the level of sound-proofing and whether there would be those in lodgings adjacent that may be able to hear proceedings.  The limited occurrence of confidential items mitigates this however, for these reasons it would be preferable for Cr Carter to utilise a conference / meeting room where it is available.  Cr Carter has confirmed that he has access to use these facilities. 

 

With respect to the Finance Committee meeting on the 15 November 2018, Cr Carter could video conference into this using the zoom technology in the Committee Room.  This will enable Cr Carter to visually as well as audibly attend the meeting.

 

In addition to the considerations outlined above, Councillors should also consider issues such as impacts on the effectiveness and transparency of the decision making process and public perception.  Officers make no comments or recommendations in this regard other than to note them as factors for consideration.

 

While this report and the Officers recommendation does not apply to attendance at briefing sessions or Agenda Briefing / Community Access Sessions, it is recommended that where Cr Carter is available to attend in the same fashion, Council support this.

 

CONCLUSION

 

Cr Carter is expected to revert to a 8 days on 6 days off roster in the new calendar year which will enable his attendance at the majority of Council meetings.  Officers therefore recommend that Council approve the following as a suitable place for the purpose of Regulation 14A:

 

·    a conference / meeting room or Cr Carters private accommodation lodgings at YAV

 

and that they approve the arrangement outlined in this report so that Cr Carter can attend the Ordinary Council Meeting of the 24 October 2018, 14 November 2018, and 28 November 2018 by telephone.

 

 OPTIONS

 

Council could decide to determine the proposed location as not being a suitable place and / or could decide not to approve the arrangement and instead request Cr Carter to apply for leave of absence for the Ordinary Council Meetings held on 24 October, 14 November and 28 November 2018.

 

 

OFFICER RECOMMENDATION

 

ABSOLUTE MAJORITY DECISION OF COUNCIL REQUIRED

 

That the Council resolves

 

1.       that a conference / meeting room or Cr Carters private accommodation lodgings at Yandi Accommodation Village to be a suitable place in accordance with regulation 14A of the Local Government (Administration) Regulations 1996.

 

2.    approves the arrangement outlined in this report for Councillor Paul Carter to attend by telephone etc the Ordinary Council Meetings held on 24 October, 14 November and 28 November 2018 and the Finance Committee meeting held on 15 November 2018.

 

 

 


Council

7

26 September 2018

16.2

Attachment a

Site Map