In my last post, I looked at the powers of local government in NSW and described how they are generally quite limited compared to many other jurisdictions around the world. This post looks at how those powers are shared and how local Councils operate.
Firstly, one point of view is that local Councils are not "government" in the strictest sense of the word, but rather a system where "the government" ie. the Government of New South Wales, delegates some of its powers to members of the local community. This is set out in section 220 of the Local Government Act which describes the legal status of a Council as follows:
(1) A council is a body politic of the State with perpetual succession and the legal capacity and powers of an individual, both in and outside the State.
(2) A council is not a body corporate (including a corporation).
(3) A council does not have the status, privileges and immunities of the Crown (including the State and the Government of the State).
(4) A law of the State applies to and in respect of a council in the same way as it applies to and in respect of a body corporate (including a corporation).
All powers that Councils have are essentially those that are delegated to them by the state government. These are predominantly contained in the Local Government Act 1993, although also in other Acts eg. the Environmental Planning and Assessment Act 1979, Protection of the Environment Operations Act 1997, Companion Animals Act 1998 etc.
The elected representatives called "Councillors" comprise the governing body of a local Council. The role of the governing body is set out in section 223 of the Local Government Act as follows:
(a) to direct and control the affairs of the council in accordance with this Act,
(b) to provide effective civic leadership to the local community,
(c) to ensure as far as possible the financial sustainability of the council,
(d) to ensure as far as possible that the council acts in accordance with the principles set out in Chapter 3 and the plans, programs, strategies and polices of the council,
(e) to develop and endorse the community strategic plan, delivery program and other strategic plans, programs, strategies and policies of the council,
(f) to determine and adopt a rating and revenue policy and operational plans that support the optimal allocation of the council’s resources to implement the strategic plans (including the community strategic plan) of the council and for the benefit of the local area,
(g) to keep under review the performance of the council, including service delivery,
(h) to make decisions necessary for the proper exercise of the council’s regulatory functions,
(i) to determine the process for appointment of the general manager by the council and to monitor the general manager’s performance,
(j) to determine the senior staff positions within the organisation structure of the council,
(k) to consult regularly with community organisations and other key stakeholders and keep them informed of the council’s decisions and activities,
(l) to be responsible for ensuring that the council acts honestly, efficiently and appropriately.
A Council must have at least 5 and not more than 15 Councillors (including a Mayor). All Councils must have a Mayor. The role of a Mayor is set out in section 226 of the Local Government Act as follows:
(a) to be the leader of the council and a leader in the local community,
(b) to advance community cohesion and promote civic awareness,
(c) to be the principal member and spokesperson of the governing body, including representing the views of the council as to its local priorities,
(d) to exercise, in cases of necessity, the policy-making functions of the governing body of the council between meetings of the council,
(e) to preside at meetings of the council,
(f) to ensure that meetings of the council are conducted efficiently, effectively and in accordance with this Act,
(g) to ensure the timely development and adoption of the strategic plans, programs and policies of the council,
(h) to promote the effective and consistent implementation of the strategic plans, programs and policies of the council,
(i) to promote partnerships between the council and key stakeholders,
(j) to advise, consult with and provide strategic direction to the general manager in relation to the implementation of the strategic plans and policies of the council,
(k) in conjunction with the general manager, to ensure adequate opportunities and mechanisms for engagement between the council and the local community,
(l) to carry out the civic and ceremonial functions of the mayoral office,
(m) to represent the council on regional organisations and at inter-governmental forums at regional, State and Commonwealth level,
(n) in consultation with the councillors, to lead performance appraisals of the general manager,
(o) to exercise any other functions of the council that the council determines.
The role of a Councillor, other than the Mayor is set out in section 232 of the Local Government Act as follows:
(1) The role of a councillor is as follows:
(a) to be an active and contributing member of the governing body,
(b) to make considered and well informed decisions as a member of the governing body,
(c) to participate in the development of the integrated planning and reporting framework,
(d) to represent the collective interests of residents, ratepayers and the local community,
(e) to facilitate communication between the local community and the governing body,
(f) to uphold and represent accurately the policies and decisions of the governing body,
(g) to make all reasonable efforts to acquire and maintain the skills necessary to perform the role of a councillor.
(2) A councillor is accountable to the local community for the performance of the council.
As can be seen above, the role of a Mayor in NSW is something of a "figurehead" rather than a position with a strong executive role like a state government Minister or a Mayor in many other jurisdictions - like parts of America.
A Council is required to hold at least 10 meetings a year. These meetings are required to be open to members of the public, although certain items may be discussed confidentially.
All Councils are required to appoint a general manager, with functions set out as follows:
(a) to conduct the day-to-day management of the council in accordance with the strategic plans, programs, strategies and policies of the council,
(b) to implement, without undue delay, lawful decisions of the council,
(c) to advise the mayor and the governing body on the development and implementation of the strategic plans, programs, strategies and policies of the council,(d) to advise the mayor and the governing body on the appropriate form of community consultation on the strategic plans, programs, strategies and policies of the council and other matters related to the council,
(e) to prepare, in consultation with the mayor and the governing body, the council’s community strategic plan, community engagement strategy, resourcing strategy, delivery program, operational plan and annual report,
(f) to ensure that the mayor and other councillors are given timely information and advice and the administrative and professional support necessary to effectively discharge their functions,
(g) to exercise any of the functions of the council that are delegated by the council to the general manager,
(h) to appoint staff in accordance with the organisation structure determined under this Chapter and the resources approved by the council,
(i) to direct and dismiss staff,
(j) to implement the council’s workforce management strategy,
(k) any other functions that are conferred or imposed on the general manager by or under this or any other Act.
While as can be seen, the Councillors are the governing body of a Council, in reality, the staff and General Manager tend to wield great influence over the direction of a Council. This is true at all levels of government, although probably most so in local government, due to the part-time nature of Mayors and Councillors and the way that Councils are structured under the local government Act.
The structure of accountability with regard to Councils functions under the Environmental Planning and Assessment Act (eg. Development Applications, rezonings) has become a lot more complicated in recent years with many unelected panels of appointed officials taking the place of Councillors in making decisions. At the same time, staff performing these functions are accountable to the elected Council via the General Manager and Councillors control the budget of the staff performing these functions.
The state government also has the power to appoint administrators in replace Mayors and Councillors and does this from time to time. In these cases, the Administrator takes on the functions of the Mayor and Councillors until new elections are held.
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