Three top tips for drafting Local Government policies
Getting a policy document right is crucial. Policy purpose, objectives and content are obviously paramount, but good policy drafting is difficult and getting it wrong can have unexpected and troublesome consequences.
Local government officers need to draft new policies or review existing policies frequently. When the new Local Government Act commences, councils must have a number of new policies in place.
Our top three tips for drafting policies for local government are:
- Scope the policy – who and what does the policy apply to?
- Policies need to clearly communicate who the policy applies to and when the policy will be applied to a situation. Tip: Have a section in the policy that sets out who or what situations the policy will and will not apply to. Example: A leasing policy might specify whether it applies to all council-owned and council-managed land, buildings and facilities, or it might exclude some of those things (eg, leases to library corporations).
- Policies are not decision-makers!
- Policies guide the council, council officers and the community about how council’s powers and discretions should be, or are likely to be, exercised in a particular matter. But a policy does not make a decision for the council or the council officer. Tip: Policies should not be drafted so that they purport to require the council or the council officer to make all decisions on particular matters in a particular way. Example: A council’s leasing policy specifies that for-profit entities must pay a market rental, not-for-profit entities are eligible for a discounted rental, based on a sliding scale depending on their annual turnover, and others (eg, sporting clubs) are eligible for a peppercorn rental. What if a for-profit entity undertaking a social enterprise (see, for example, BRI or My Maintenance Crew) wanted to access the same discounted rental available to not-for-profit entities under the policy? Council is not obligated by the policy to refuse to agree to provide a discounted rental. The council can still consider the request, consider the policy and decide to grant a lease to the for-profit entity with a discounted rental.
- Style matters Good policies are written in clear, concise, simple language and use consistent language throughout. Tip: Have a definitions section. Give clear meanings to terms that will be used throughout the policy. Give clear meanings to terms which could have more than one meaning. Example: In a leasing pricing policy, does ‘not-for-profit’ mean only charitable organisations whose rules of association prohibit the payment of dividends to members, or, is to also include non-incorporated community groups or persons that undertake charitable or other beneficial community activities?
The new Local Government Act is going to require all councils to implement a range of new policies, including, a community engagement policy, a public transparency policy, a procurement policy and a complaints policy. These will be important policies that touch most aspects of a council’s day-to-day operations and functions.