Abetz Curtis

1.  INTRODUCTION

1.1.  The Local Government (Meeting Procedures) Regulations 2005 (Tas) (‘Regulations’) set out the procedures that all councils and council committees in Tasmania should adhere to when conducing meetings.

1.2.  By default, council meetings and council committee meetings are open to the public.[1]  This rule enforces the principle that the business of councils and council committees should be open and transparent.

1.3.  However, the legislature recognises that both councils and council committees may be called upon, from time to time, to consider matters that ought to be discussed behind closed doors.

1.4.  Accordingly, the Regulations grant the power to close all, or part of, a council meeting or council committee meeting to the public in certain circumstances.[2]

2.  APPLICABLE LAW

 2.1.  The basic statutory preconditions to closing a meeting to the public are as follows:

(a) all or part of the meeting must involve the discussion of one or more of the subject matters set out in r.15(2) of the Regulations which are as follows:

(i) personnel matters, including complaints against an employee of the council;

(ii) industrial matters relating to a person;

(iii) contracts for the supply and purchase of goods or services;

(iv) the security of property of the council;

(v) proposals for the council to acquire land or an interest in the land or for the disposal of land;

(vi) information provided to the council on the condition it is kept confidential;

(vii) trade secrets of private bodies;

(viii) matters relating to actual or possible litigation taken by or involving the council or an employee of the council;

(ix) applications by councillors for leave of absence; or

(x) the personal affairs of any person.

(b) having identified the relevant subject matter(s) in r.15(2), the council (or council committee) must resolve by absolute majority to close all or the relevant part of the meeting to the public;[3] and

(c) the grounds upon which the meeting were closed must be clearly recorded in the minutes of the meeting.[4]

3.  PROHIBITION & EXCEPTIONS

3.1.  Notwithstanding the three basic rules set out above, the Regulations strictly prohibit the closing of a meeting in circumstances where the council or council committee is:

(a) acting as a planning authority under the Land Use Planning and Approvals Act 1993 (Tas) (’LUPA’); or

(b) considering whether or not to grant a permit under LUPA; or

(c) considering proposals for dealing with public land under section 178 of the Local Government Act 1993 (Tas).

3.2.  The only exception to this prohibition is if the subject matters set out in paragraphs 1 to 3 above are being considered specifically in the context of actual or possible legal action taken by, or involving, the council, in which case a meeting can be closed in order to discuss these matters.[5]

3.3.  Once all or part of a meeting is closed to the public the chairperson has the power to:

(a) exclude the general public from the closed meeting;

(b) if necessary, exclude the council’s General Manager from the meeting;

(c) invite any person to remain at the meeting to provide advice or information to council;

(d) authorise the removal of any person if that person refuses to leave and, if necessary, request the assistance of police in this respect.[6]

4.  ADDITIONAL CONSIDERATIONS

4.1.  Once discussion of the subject matter of the closed meeting has concluded the meeting can be re-opened to the public by a simple majority resolution.[7]

4.2.  All discussions, decisions, reports or documents relating to a closed meeting are required to be treated as confidential unless the council or council committee, after considering any relevant privacy and confidentiality issues, authorises the release of some or all of these materials to the public.[8]

4.3.  Generally speaking, a member of the public cannot access closed meeting materials by way of a request for information made under the Right to Information Act 2009 (Tas), however any such request must be carefully considered against the relevant test.[9]

For further information in relation to the issues discussed in this paper, please contact Roger Curtis.