Update on COVID-19 legislation of relevance to local government

Update on COVID-19 legislation of relevance to local government

The COVID-19 Legislation Amendment (Emergency Measures) Act 2020 (COVID-19 Emergency Measures Act) commenced on 25 March 2020 and made a number of amendments to the Local Government Act 1993 (LG Act), including provisions enabling Councils to hold meetings electronically.

The NSW Government has since gone further by enabling other matters to be undertaken electronically in response to the COVID-19 crisis. This update provides details of those changes, which are of particular relevance to local government.

Electronic witnessing of documents

The Electronic Transactions Amendment (COVID-19 Witnessing of Documents) Regulation 2020 commenced on 22 April 2020 and amends the Electronic Transactions Regulation 2017 (ET Regulation). These changes allow:

(a) the signature of a document to be witnessed by “audio visual link”, and
(b) arrangements relating to the witnessing of signatures and the attestation of documents to be performed by “audio visual link”.

What is an “audio visual link”?

An “audio visual link” is defined to mean technology that “enables continuous and contemporaneous audio and visual communication between persons at different places, including video conferencing”. This can include the use of applications such as Microsoft Teams, Zoom, Skype or FaceTime.

Which documents can be witnessed by “audio visual link”?

The ET Regulation provides that the following documents can be witnessed by “audio visual link”:

(a) a will
(b) a power of attorney or an enduring power of attorney
(c) a deed or agreement
(d) an enduring guardianship appointment
(e) an affidavit, including an annexure or exhibit to the affidavit, or
(f) a statutory declaration.

Of relevance to local Councils, the ET Regulation therefore applies to all types of contractual
arrangements that local government authorities regularly enter into (such as leases, licences and
voluntary planning agreements).

Witnessing a document being signed

A person witnessing a document being signed by “audio visual link” must:

(a) observe the person signing the document (the signatory) sign the document in real time
(b) attest or otherwise confirm the signature was witnessed by signing the document or a copy of the document
(c) be reasonably satisfied the document the witness signs is the same document, or a copy of the document signed by the signatory, and
(d) endorse the document (or copy) with a statement specifying the method used to witness the signature of the signatory, and that the document was witnessed in accordance with the ET Regulation.

The ET Regulation expressly provides that the witness can either sign a counterpart of the document or sign a scanned copy of the signed document sent electronically by the signatory. We think it would also be open to a witness to sign the original signed document if it is subsequently sent to the witness by mail.

Arrangements that can be performed by audio visual link

The ET Regulation provides that the types of arrangements that can be performed by “audio visual link” include:

(a) certification of matters required by an Act or another law
(b) confirming or verifying the identity of the signatory to a document
(c) attestation of a signature
(d) swearing or affirming the contents of an affidavit, and
(e) seeing the face of the signatory.

The ET Regulation specifies that a requirement in an Act or another law for the presence of a witness, signatory or other person is taken to be satisfied if the witness, signatory or other person is present by “audio visual link”. We think this provision would apply to the requirements under clause 400 of the Local Government (General) Regulation 2005 (LG Regulation) for specified persons (for example the Mayor and General Manager) to be present and attest to the affixing of Council’s seal.

Property dealings

From 27 April 2020 certain types of paper land dealings, plans and Section 88B instruments may be signed electronically and lodged as an original of that document. These documents may also be witnessed electronically using an “audio visual link” in accordance with the updated requirements of the ET Regulation outlined above.

How long do the changes have effect?

The amendments to the ET Regulation override the provisions of any Act or other law and will expire 6 months after their commencement (that is, on 22 September 2020) or on an earlier date as resolved by NSW Parliament.

Electronic notification of planning matters

On 17 April 2020, the Environmental Planning and Assessment Regulation 2000 (EPA Regulation) was amended to allow Councils to notify certain types of planning processes or applications on the Council’s website, rather than in local newspapers.

The following planning matters are now able to be notified electronically:

(a) notice of development applications
(b) applications under sections 4.55(2) and 4.56 of the Environmental Planning and Assessment Act 1979 for the modification of certain development consents
(c) public exhibition of draft development control plans
(d) approval, amendment or repeal of development control plans
(e) public exhibition of draft contribution plans
(f) approval, amendment or repeal of contribution plans
(g) environmental impact statements, and
(h) publicly available documents.

The LG Regulation has also been amended to enable notification of draft local approval policies, approvals and local orders policies via the Council’s website.

Access to information

As of 17 April 2020, the LG Regulation was amended so that the requirements for Councils to make documents physically available for inspection will be satisfied if:

(a) in the case of a document that is “open access information” for the purposes of the Government Information (Public Access) Act  2009 (the GIPA Act), the information contained in the document is published on the Council’s website and is made available on request in an electronic form or in such other manner determined by the Council, and

(b) in the case of a document that is not “open access information” for the purposes of the GIPA Act, the information contained in the document is made available on request in an electronic form or in such other manner determined by the Council.

Financial matters and relief

Councils should also be aware that amendments to the LG Regulation have now commenced, which provide them with:

• a one-month extension to adopt their 2020-21 Operational Plans, audited financial reports and annual reports
• the option to delay issuing rates notices to ratepayers until 1 September 2020, and the collection of the first quarter rates instalment until 30 September 2020, and
• the discretion to immediately waive or reduce fees under a new “COVID-19” category.

If you have any questions in relation to this article, please feel free to contact a member of our specialised local government team.