Agenda of Extraordinary Council Meeting - Wednesday, 12 January 2022

Councillor Contact Details

Granville Ward
Clr Steve Christou	0419 651 187	Steve.Christou@cumberland.nsw.gov.au
Clr Joseph Rahme	0418 995 471	Joseph.Rahme@cumberland.nsw.gov.au
Clr Ola Hamed	0405 070 007	Ola.Hamed@cumberland.nsw.gov.au
Greystanes Ward
Clr Eddy Sarkis	0418 306 918	Eddy.Sarkis@cumberland.nsw.gov.au
Clr Greg Cummings	0417 612 717	Greg.Cummings@cumberland.nsw.gov.au
Clr Diane Colman	0400 279 200	Diane.Colman@cumberland.nsw.gov.au
Regents Park Ward
Clr Kun Huang	0418 911 774	Kun.Huang@cumberland.nsw.gov.au
Clr Sabrin Farooqui	0400 322 999	Sabrin.Farooqui@cumberland.nsw.gov.au
Clr Helen Hughes	0400 264 534	Helen.Hughes@cumberland.nsw.gov.au
South Granville Ward
Clr Paul Garrard	0414 504 504	Paul.Garrard@cumberland.nsw.gov.au
Clr Glenn Elmore	0418 459 527	Glenn.Elmore@cumberland.nsw.gov.au
Clr Mohamad Hussein	0400 281 726	Mohamad.Hussein@cumberland.nsw.gov.au
Wentworthville Ward
Clr Michael Zaiter	0418 432 797	Michael.Zaiter@cumberland.nsw.gov.au
Clr Suman Saha	0419 546 950	Suman.Saha@cumberland.nsw.gov.au
Clr Lisa Lake	0418 669 681	Lisa.Lake@cumberland.nsw.gov.au

For information on Council services and facilities please visit www.cumberland.nsw.gov.au

Extraordinary Council Meeting

12 January 2022

Item No: EC01/22-1

Commencement of Council Term - Councillor Oath of Office

Responsible Division: General Manager

Officer: Executive Manager General Manager's Unit

File Number: 9200755

Community Strategic Plan Goal: Transparent and accountable leadership

Summary

This item of business relates to Councillors undertaking the Oath of Office prior to considering any Council business at the commencement of the Council term.

Recommendation

That all Councillors yet to formally undertake the Oath or Affirmation of Office now do so at the commencement of the meeting, in accordance with Section 233A of the Local Government Act 1993.

Report

This item of business relates to Councillors undertaking the Oath or Affirmation of Office prior to considering any Council business at the commencement of the Council term.

Section 233A of the Local Government Act 1993 states that:

(1) A councillor must take an oath of office or make an affirmation of office at or before the first meeting of the council after the councillor is elected.

(2) The oath or affirmation may be taken or made before the general manager of the council, an Australian legal practitioner or a justice of the peace and is to be in the following form--

Oath I [name of councillor] swear that I will undertake the duties of the office of councillor in the best interests of the people of Cumberland Council and the Cumberland Council and that I will faithfully and impartially carry out the functions, powers, authorities and discretions vested in me under the Local Government Act 1993 or any other Act to the best of my ability and judgment.

Affirmation I [name of councillor] solemnly and sincerely declare and affirm that I will undertake the duties of the office of councillor in the best interests of the people of Cumberland Council and the Cumberland Council and that I will faithfully and impartially carry out the functions, powers, authorities and discretions vested in me under the Local Government Act 1993 or any other Act to the best of my ability and judgment.

(3) A councillor who fails, without a reasonable excuse, to take the oath of office or make an affirmation of office in accordance with this section is not entitled to attend a meeting as a councillor (other than the first meeting of the council after the councillor is elected to the office or a meeting at which the councillor takes the oath or makes the affirmation) until the councillor has taken the oath or made the affirmation.

(4) Any absence of a councillor from an ordinary meeting of the council that the councillor is not entitled to attend because of this section is taken to be an absence without prior leave of the council.

(5) Failure to take an oath of office or make an affirmation of office does not affect the validity of anything done by a councillor in the exercise of the councillor's functions.

(6) The general manager must ensure that a record is to be kept of the taking of an oath or the making of an affirmation (whether in the minutes of the council meeting or otherwise).

The General Manager will announce at the meeting any Councillors who have undertaken their Oath or Affirmation prior to the first Council meeting and this will be noted in the Minutes along with a copy of all Councillors signed Oath or Affirmation of Office.

Community Engagement

There are no consultation processes for Council associated with this report.

Policy Implications

There are no policy implications for Council associated with this report.

Risk Implications

There are no risk implications for Council associated with this report.

Financial Implications

There are no financial implications for Council associated with this report.

CONCLUSION

Council must now proceed to undertake their Oath of Office to ensure they are compliant with the Local Government Act.

Attachments

1. Councillor Oath/Affirmation

Extraordinary Council Meeting

12 January 2022

Item No: EC01/22-2

Election of Mayor and Deputy Mayor

Responsible Division: General Manager

Officer: Executive Manager General Manager's Unit

File Number: 9200756

Community Strategic Plan Goal: Transparent and accountable leadership

Summary

This report outlines the procedures for the election of the Mayor and Deputy Mayor (if determined as required), and recommends that Council conduct an election process to accord with the requirements of the Local Government Act 1993.

Recommendation

That Council:

1. Determine if a Deputy Mayor will be elected and, determine the term of the Deputy Mayor (if required).

2. Determine the method of voting for the Election of the Mayor and Deputy Mayor (if required).

3. Elect a Mayor for the ensuing term to no later than midnight 30 September 2023.

4. Elect a Deputy Mayor for the ensuing term for the period as determined by Council (if required).

Report

Council is required to conduct a Mayoral election within 3 weeks of the Declaration of Polls of the Ordinary Council election, in accordance with Section 290 (1)(a) of the Local Government Act 1993.

Given the shortened Council term due to the previous postponement and subsequent deferral of the Local Government Elections due to the Covid-19 pandemic, Council is now required to elect a Mayor for a period to September 2023.

Deputy Mayors hold their office for the Mayoral term or a shorter term as specified by the Council’s resolution. It should be noted however, that councils are not required to have a Deputy Mayor. Council has since September 2017, had a Deputy Mayor elected.

Effectively, the Mayor elected will hold office until Council conducts a Mayoral election at a Council meeting in September 2023 as required under Section 290 of the Local Government Act. The Deputy Mayor will hold office for a period in accordance with Council’s resolution, which cannot be longer than the Mayoral term but can be shorter if Council desires.

Nominations

Under the Local Government Act 1993, Councillors may be nominated without notice for election as Mayor or Deputy Mayor. The nomination must be in writing by two or more Councillors (one of whom may be the nominee) and is not valid unless the nominee has indicated consent to the nomination in writing. The nomination forms can be delivered to the Returning Officer any time up to and including the calling of nominations for each election. A copy of the Nomination forms are attached to this report.

Procedures for Mayoral Election

The Mayoral Election will be conducted in accordance with the attached Office of Local Government – Mayoral Election Procedures and Schedule 7 of the Local Government (General) Regulation 2021. Attachment 1 to this report outlines the Office of Local Government – Mayoral Election Fact Sheet. The General Manager is the nominated Returning Officer for the election of Mayor and Deputy Mayor. The Executive Manager General Manager’s Unit will assist the Returning Officer with the election process.

The Returning Officer will indicate that the election will be conducted in accordance with the Local Government Act and Regulations. Council is to determine the method of voting to be used for the election of Mayor and Deputy Mayor.

If only one Councillor is nominated, that Councillor is duly elected. If more than one Councillor is nominated, Council is to proceed to determine the method of voting via one of the following options:

· Open voting – i.e. by show of hands.

· Ordinary ballot – i.e. a secret ballot (place an “X” against the candidate of their choice);

· Preferential ballot – i.e. place 1, 2, 3 etc. against each candidate;

Open voting is the most transparent method of voting at Council meetings. It allows the community to see and understand the voting that has occurred. It is also the voting method which reflects normal Council voting methods. If Council decided to conduct the election by preferential or ordinary ballot, then the General Manager will conduct the election as outlined in the Regulations and as per the attached Office of Local Government – Mayoral Election Procedures.

Once the Mayor is declared by the Returning Officer, the Mayor takes up his or her seat. The Mayor will then ask the General Manager to conduct the election of Deputy Mayor (if required).

The Returning Officer (General Manager) then conducts the voting for Deputy Mayor in the same method as above.

Committee Representation

Following the Mayoral election, in the event of a change in Office, any Committees where the Mayor is Council’s representative will be notified accordingly.

Community Engagement

The result of the election (including the name of the candidate elected as Mayor or Deputy Mayor) is:

(a) To be declared to the councillors at the council meeting at which the election is held by the returning officer, and

(b) To be delivered or sent to the Director-General and to the Secretary of the Local Government and Shires Associations of New South Wales.

Council will clearly publicise and communicate the results of the election as required.

Policy Implications

There are no policy implications for Council associated with this report.

Risk Implications

Council must elect a Mayor at this meeting as scheduled in accordance with the Local Government Act 1993. If Council fails to elect a Mayor in accordance with the Local Government Act 1993, the Governor may appoint one of the Councillors as Council’s Mayor in accordance with Section 290 (2) of the Act.

Financial Implications

There are no financial implications for Council associated with this report.

CONCLUSION

The Election of the Mayor and Deputy Mayor (if required) must be undertaken in accordance with the Local Government Act 1993 and the Schedule 7 of the Local Government (General) Regulation 2021 at this meeting.

Attachments

1. OLG Fact Sheet - Mayoral Election Process

2. Nomination Forms

Extraordinary Council Meeting

12 January 2022

Item No: EC01/22-3

Decision on Council Opt in for Countback Elections

Responsible Division: General Manager

Officer: Executive Manager General Manager's Unit

File Number: 9200754

Community Strategic Plan Goal: Transparent and accountable leadership

Summary

This report presents to Council for determination the ability to determine any vacancy in office in the first 18 months of this Council term by way of countback, in accordance with Section 291A of the Local Government Act 1993.

Recommendation

That pursuant to Section 291A(1)(b) of the Local Government Act 1993 (the Act), Cumberland Council declares that casual vacancies occurring in the office of a councillor within 18 months after the last ordinary election of councillors for the Council on 4 December 2021 are to be filled by a countback of votes cast at that election for the office in accordance with Section 291A of the Act and directs the General Manager to notify the NSW Electoral Commission of the Council’s decision within 7 days of the decision.

Report

Following the 2021 local government elections, Councils have the option of using a countback of votes cast at the last ordinary election to fill casual vacancies occurring in the offices of councillors in the first 18 months after the election.

This allows councils who opt in to use a countback to fill vacancies at a significantly lower cost than the cost of holding a by-election. To exercise the option of using a countback to fill casual vacancies occurring in the first 18 months following the election, councils must resolve, at their first meeting after the election, to use a countback to fill casual vacancies. If councils do not resolve this at the first meeting after the election, they will be required to fill casual vacancies through a by-election.

Where councils resolve to fill casual vacancies using a countback in the first 18 months of their terms, the general manager is required under the Local Government (General) Regulation 2021 (the Regulation) to notify the election manager of the council’s ordinary election of the council’s resolution within 7 days of the resolution. For all councils other than Fairfield and Penrith City Councils, the election manager is the NSW Electoral Commissioner.

Countbacks are not available to fill casual vacancies in the office of a councillor where:

· The councillor who vacated office was elected at an election using the optional preferential voting system (i.e. elections where only one civic office is required to be filled such as the election of popularly elected mayors), or

· The councillor was elected at an uncontested election. A by-election must be used to fill these vacancies.

A countback election is used to elect a Councillor to fill a single vacancy, where the vacating councillor was elected under the proportional representation method (i.e. where two or more candidates were elected at a local government ordinary election). If there are multiple vacancies, a separate countback election is held for each vacancy.

The Returning Officer contacts all unelected candidates from the local government ordinary election who may still qualify to be elected to the office of councillor. Where the candidate is interested, they must submit a formal application to the returning officer.

All candidates who submit and do not withdraw their application, become eligible candidates. Given Council’s 2021 ordinary election was conducted by the NSW Electoral Commission, the Returning Officer must be appointed by the NSW Electoral Commission.

Section 291A of the Local Government Act 1993 outlines the legal framework for Council and it states:

Countback to be held instead of by-election in certain circumstances

291A Countback to be held instead of by-election in certain circumstances

(1) This section applies to a casual vacancy in the office of a councillor if--

(a) the casual vacancy occurs within 18 months after the date of the last ordinary election of the councillors for the area, and

(b) the council has at its first meeting following that ordinary election of councillors, by resolution, declared that any such casual vacancy is to be filled by a countback of votes cast at the last election for that office.

(2) This section does not apply to a casual vacancy in the office of a councillor if the councillor who vacated office was elected--

(a) in an election using the optional preferential voting system (including the election of a mayor elected by the electors of an area), or

Note: See section 285 (Voting system for election of councillors).

(b) in an election without a poll being required to be held.

Note: See section 311 (Uncontested elections).

(3) A casual vacancy to which this section applies is to be filled by a countback election conducted in accordance with the regulations.

(4) A countback election to fill a casual vacancy to which this section applies must be conducted--

(a) if the election at which the person whose departure created the casual vacancy was elected was administered by the Electoral Commissioner--by a returning officer appointed by the Electoral Commissioner, or

(b) if the election at which the person whose departure created the casual vacancy was elected was administered by a returning officer appointed by an electoral services provider engaged by the council--by a returning officer appointed by the electoral services provider.

(5) If a countback election fails or the returning officer is otherwise unable to fill the casual vacancy by a countback election--

(a) the returning officer must notify the general manager of the council concerned, and

(b) a by-election in accordance with this Part must be held to fill the casual vacancy.

(5A) If an electoral services provider engaged by the council is unable to appoint a returning officer for the purposes of subsection (4)(b), a by-election in accordance with this Part must be held to fill the casual vacancy.

(6) This section does not apply to a casual vacancy in the office of a councillor if the vacancy occurs before the day prescribed for the purposes of this section by the regulations.

Importantly, Council can still opt to conduct a by-election even if it resolves to utilise the Countback method at its first Council meeting in the event of a vacancy within 18 months of the declaration of results. Council could do this via rescinding its earlier resolution to utilise countback. Council cannot, however, utilise the countback method where it has not resolved to do so at its first meeting of the Council term or utilise the countback method again once it has rescinded its resolution if made at the first Council meeting of the term.

The recommended resolution has been taken from the Office of Local Government – Council Post Election Guide.

Countback Timeline

The timeline for a countback election is:

1. The Electoral Commissioner is notified of a casual vacancy, within seven days of it occuring.

2. A returning officer is appointed within 14 days of the notification of the vacancy.

3. Casual vacancy notices are issued 2 to 14 days from the appointment of the returning officer.

4. Where a candidate is interested, they must submit a formal application to the returning officer. The application period closes after 10 days of the notices being issued.

5. The countback is conducted within 14 days of the vacancy notices being issued.

6. It may take up to a month for the results to be declared.

A countback election must be completed within 49 days, and applications for candidates to participate is open for 10 days.

If there are no eligible candidates, an attendance by-election must be held. If there is only one eligible candidate, that candidate is elected. If there are multiple eligible candidates, a countback election is conducted. In a countback election, the returning officer:

· uses preference data from ballot papers from the previous local government ordinary election

· uses the same proportional representation method used in the original election

· effectively re-runs the election making the vacating councillor ineligible and distributing each of their ballot papers to the next preference on the ballot paper

· if a non-eligible candidate would be elected, the election is re-run with that candidate’s ballot papers also distributed to their next preference on the ballot paper

· re-runs the countback until an eligible candidate is elected.

Eligible candidates and the council are then notified of the result.

If a casual vacancy occurs in office within 18 months of an ordinary election date, then Council can apply to the Minister to seek to dispense the requirement of a by-election in accordance with S.294 of the Local Government Act 1993, as undertaken in the previous term of Council.

It now recommended that Council determine whether or not it will opt in to the use of countback for the 18 months post the 4 December 2021 election.

Community Engagement

There are no consultation processes for Council associated with this report.

Policy Implications

There are no policy implications for Council associated with this report.

Risk Implications

There are no risk implications for Council associated with this report.

Financial Implications

The cost of a by-election in one ward can be upwards of $300,000 – $350,000 in cost. This cost can be alleviated by Council utilising the countback method. A small cost is associated with the appointment and payment of a Returning Officer to conduct the count back process, estimated by staff at approximately 5% of the by-election cost.

CONCLUSION

It is now recommended that Council proceed to determine this matter.

Attachments

1. OLG Circular - Countback and Post Election Activities