The remaining parts of the Local Government Legislation Amendment Act 2019 (WA) (LGLAA), sections 22, 25 and 48 to 51, came into operation on 3 February 2021 as detailed in the Western Australian Government Gazette.
This is the culmination of the process set in motion in 2017 to modernise the Local Government Act 1995 (WA) (LGA).
Key elements of new amendments
Recruitment, performance review and termination of CEOs
The amendment of the LGA in relation to the recruitment, performance review and termination of local government CEOs introduces the Local Government (Administration) Amendment Regulations 2021.
New model standards for the recruitment, performance review and termination of CEOs have been introduced into Schedule 2 of the Local Government (Administration) Regulations 1996.
Local governments are now required to prepare a standard for the recruitment, performance review and termination of CEOs that incorporates the comprehensive model standards. This must be done within 3 months of the new regulations coming into operation, and by no later than 3 May 2021. Until a local government adopts new standards in compliance with the regulations, the model standards, as set out in the regulations, apply to the local government.
In addition, local governments may add to what is contained in the model standards, but those additions will be of no effect if they are inconsistent with the model standards.
A key requirement, introduced for the first time by these new regulations, is the need to have an 'independent person' on a CEO recruitment panel. An independent person is defined as someone other than a council member, an employee of the local government, or a human resources consultant engaged by the local government.
In relation to the review of performance of a CEO, the new regulations set out detailed requirements for processes and procedures that local governments are required to comply with, in particular if termination is related to performance.
The model standards also introduce a requirement that if a local government terminates a CEO's employment, a notice must be given setting out the reason for the termination. Providing only written notice of termination, without reasons, will no longer be sufficient.
Code of Conduct Employees and Code of Conduct Members
The amendment relating to codes of conduct, introduces the following:
- Local Government (Model Code of Conduct) Regulations 2021, which impact council members, committee members and candidates, and repeal the Local Government (Rules of Conduct) Regulations 2007; and
- Local Government Regulations Amendment (Employee Code of Conduct) Regulations 2021, which impact local government employees.
These amendments to the LGA require local government CEOs to prepare and implement a compliant code of conduct for employees. In addition to the code for employees, a local government must prepare and adopt a separate code of conduct to be observed by council members, committee members or candidates for such positions. This must be done within 3 months of the regulations coming into effect, and by no later than 3 May 2021.
The regulations set out a model code of conduct for members that is taken to be a local government's code, until such time as it prepares and adopts its own code, in line with the regulations.
These amendments attribute responsibility for the implementation and publication of the code of conduct for employees to the CEO, unless delegated. Whereas responsibility for the code of conduct for council members, committee members and candidates, rests with the local government and ultimately the Council.
Immediate considerations for local government
There are no formal transitional provisions in respect of the introduction of the latest sections of the LGLAA. This means that the amendments to the LGA and the new regulations are in full operation from 3 February 2021.
The Department of Local Government, Sport and Cultural Industries has indicated that it is prepared to exercise some initial discretion while local governments work through the new requirements.
In terms of next steps, local governments should undertake a review of their CEO contract of employment, or any contract under negotiation or recruitment in progress, to ensure that it meets the requirements of the model standards.
In addition, any local government policies and procedures that apply to the recruitment, performance review and termination of the CEO, should be reviewed to ensure they meet with the requirements of the model standards.
A local government should also revisit its codes of conduct and decide whether or not it will adopt the model code of conduct for members or whether it will adapt this in line with its own unique requirements.
If you need assistance with meeting these new obligations please contact your local government specialist at MinterEllison.