The inability to raise a quorum may cause problems. In the next few months councils will need to prepare and adopt Budgets. Valuations will need to be returned. Major contracts may need to be entered into.

Most Victorian councils delegate generously to their Chief Executive Officers. Delegation ‘by exception’ ensures that just about every decision that Council can make by Resolution the Chief Executive Officer can make as a delegate. The Chief Executive Officer (and organisation) can, therefore, generally carry on the business of a council.

But there are exceptions, such as those set out in s 98(1) of the Local Government Act 1989. And typically, Instruments of Delegation to Chief Executive Officer exclude adoption of Budgets, returns of valuations and contracts over a specified value from what is delegated. Such decisions can only be made by Councillors collectively.

In the next couple of weeks councils should consider whether those exclusions are best removed or modified now that COVID-19 means that a Council meeting might not be held. It may just be a case of modification – varying the delegations so the Chief Executive Officer can only exercise the power in defined circumstances.

Where a council delegates directly to senior planning and other staff, the same imminent review of delegations should be considered. Again, in this way continuity of decision-making can be assured.

If Council meetings are held in the short or medium term, there are some practical steps that councils might take to minimise the exposure of the public, and their Councillors. In particular, councils might:

• Remove from their agendas any items that can safely be deferred to another meeting, to minimise the time spent in the Chamber
• If not already doing so, implement mechanisms to livestream Council meetings – this could be as basic as an iPhone on a tripod live streaming a Council meeting via social media
• Release public statements advising that, while Council meetings will be proceeding, they will be proceeding with:
  • Pared back agendas
  • Live streaming via specified media
  • Providing alternative means for submitting and responding to questions for public question time – such as by providing written responses via social media channels, email and council meeting minutes
• If considering a matter in respect of which submissions have been sought under s 223 of the Local Government Act 1989:
  • Write to any submitters wishing to be heard in support of their submissions to assure them that their written submissions have been provided to, and will be considered by, Councillors if they no longer wish to attend a public meeting
  • Consider whether submitters still wishing to be heard in support of their submissions might be asked to appear one at a time, rather than all being present in the Chamber for the duration of the council’s consideration of the matter.

These measures are far from perfect, however, they should assist councils in continuing to meet their obligations under the Local Government Act 1989 while also providing, to an extent at least, for the social distancing imperative to be fulfilled.

Maddocks has produced guides to a range of legal issues raised by the coronavirus (COVID-19). You can access these guides here.