Local Government Bill 2018

Division 8—Restructuring Orders

Clause 264 provides for an Order in Council to be made, on the recommendation of the Minister, to alter the structure of a municipal district or a Council.

Clause 265 subclauses (1) and (2) provide for matters that may be included in an Order in Council under clause 264.

Subclauses (3) and (4) describes the application of an Order in Council that provides for the appointment of administrators to a Council.

Clause 266 subclause (1) includes general matters applying to an Order in Council under clause 264.

Clause 267 provides that the Minister may not seek an Order in Council to abolish a Council or to alter a Council's external boundaries unless—

• 
  the Minister has considered the report of a restructuring advisory panel; or
  

• 
  it is only a minor boundary change.
  

Clause 268 provides for the Minister to constitute a restructuring advisory panel.

Subclause (2) specifies certain matters that apply to the conduct of a restructuring advisory panel review. This includes considering the views of affected Councils and conducting a community engagement process.

Subclause (3) lists certain matters that must be considered by a restructuring advisory panel.

Subclause (4) requires a restructuring advisory panel to submit a final report to the Minister.

Part 9—Electoral provisions

Division 1—Voters

This Division describes who is entitled to be enrolled to vote in a local government election. It retains the existing franchise in the Local Government Act 1989.

Clause 269 provides for the continuation of the existing voter franchise at local government elections. This includes residents and ratepayers with an entitlement to be enrolled without application and ratepayers and persons appointed by corporations entitled to apply to be enrolled and their application is made in accordance with the Bill.

Subclauses (2) and (3) provide that a person can only be enrolled once on the roll and cannot choose between rights of entitlement to exercise.

Enrolments by application have effect until the close of the roll at the next general election, and the Council's CEO (or the VEC by agreement) must write to those applicants providing them with information prescribed by the regulations on their voting entitlement.

Clause 270 provides that a person who would be an elector on the roll of electors for the Victorian Legislative Assembly for an address in the municipal district is entitled as a resident to be enrolled without application for the ward where that address is located.

Clause 271 provides that up to the first 2 named owners of rateable property listed on the Council's rate records who do not have a principal place of residence in the municipal district are entitled as ratepayers to be automatically enrolled for the ward where the property is located.

Subclause (7) provides that where a person owns more than one property, they may choose which property to exercise their entitlement to be enrolled under.

Clause 272 provides that, where there are more than 2 joint owners of a property, an owner not enrolled under clauses 270 or 271 may apply to be enrolled in place of another owner.
Clause 273 provides that up to 2 occupiers of rateable property liable to pay the rates and who are not otherwise entitled to be enrolled, may as ratepayers apply to be enrolled. They are enrolled in place of the owners.

An application under this clause must be accompanied by the owners' consent unless it appears from the Council rate records that the occupiers receive the rate notices. A person may resign the enrolment and owners may withdraw their consent.

Clause 274 provides that a corporation owning rateable property or occupying a property and liable to pay the rates, may apply to appoint a director or a company secretary of the corporation to represent it and be enrolled for Council elections in the ward where the property is located.

Subclause (7) provides that only one entitlement can be exercised in respect of a municipal district.

Subclause (9) sets out when an application for a person to be appointed is void.

Subclause (10) provides that an appointment is revoked if the appointee ceases to hold the relevant office in the corporation, dies, resigns the appointment or becomes otherwise entitled to be enrolled for the municipal district in their own right.

Clause 275 provides that the CEO must enrol a person following receipt of a written application for enrolment unless she or he believes the person is not entitled to be enrolled. If an enrolment is refused, reasons for the refusal must be given.

The CEO may require information orally or in writing to enable her or him to determine a person's eligibility.

Clause 276 provides that a person entitled to be enrolled as a ratepayer may request that their address not be shown on the Council voters' roll where there is a risk to personal safety. If the request is accepted, the person's address must be removed.

Division 2—Voters' rolls

Clause 277 provides that the CEO must supply the VEC lists of voters who appear to be entitled to be enrolled as ratepayers or corporation representatives. For the purposes of clause 271, in the absence of other information as to a person's place of residence, the CEO may include in the list supplied to the VEC people whose address on the rate notice is outside of the municipal district.

Clause 278 provides that the VEC must compile a voters' roll of electors from the Legislative Assembly and lists of voters supplied by the CEO. A roll must be compiled for each ward of the municipal district, if any, and must not contain addresses that have been required to be removed. The Commission must certify the roll as being prepared in accordance with the Act not later than 5 days before the day nominations close. A voters' roll provided to any person must exclude all silent voters.

Clause 279 provides that the certified voters' roll can only be subsequently amended in limited circumstances. Amendments must be certified and detail reasons for the amendments.

Clause 280 provides that the certified voters' roll must be publicly available at times and places determined by the VEC until one month after the election day.

Clause 281 allows for candidates to be provided with a copy of the voter's roll for the ward they have contested. The copy must only be used for campaigning purposes and must be returned or destroyed within 30 days of election day. Failure to comply is an offence.

Clause 282 allows the VEC to provide a copy of a voters' roll to a person or organisation at a fee if, after taking account of advice from the Information Commissioner, it is satisfied the provision is in the public interest. Failure to comply with the requirements of use under the Bill is an offence.

Clause 283 enables the Council's CEO to use the voters' roll for communicating or consulting the local community on Council functions. The CEO may request the VEC to provide a copy of the roll for this purpose. Failure by a person or organisation given the roll for this purpose to comply with the requirements of use under the Bill is an offence.

Clause 284 provides that the validity of the voters' roll is not affected where things required to be done in connection with its preparation, printing or copying were omitted or not completed, or because of errors, misnomers or inaccurate descriptions.
Division 3—Candidate for election

Clause 285 sets out the requirements to be met for persons to be candidates at Council elections.

Subclause (1) provides that a person may nominate for any ward of the municipal district if they are qualified to become a Councillor of that Council.

A person cannot nominate if—

• 
  they are already a Councillor of any Council, unless they go out of office by the election day;
  

• 
  they have nominated as a candidate for election at another Council or in another ward.
  

Ministerial officers, Parliamentary advisers, electorate officers and members of Council staff may nominate but must take leave from that office during the election period and, if elected, they must resign before they take the oath or affirmation of office.

Division 4—Holding of general elections and by-elections

Clause 286 provides that general elections for all Councillor positions in each ward are to be held on the fourth Saturday in October every 4 years. The next general election is in 2020.

The election date may be moved to another Saturday near as possible for one or more Councils if the Minister is satisfied circumstances or events may adversely affect the election and has considered advice from the VEC.

Clause 287 Subclause (1) provides that an extraordinary vacancy in the office of Councillor occurs where a person fails to take the oath or affirmation of office within 3 months of being declared elected or the Councillor ceases to hold office under clause 33.

Subclauses (2) to (6) specify when certain vacancies are deemed to have occurred.

Subclause (7) requires the CEO to notify the Minister and the VEC of a Councillor resignation.

Clause 288 provides that extraordinary vacancies are not filled if they occur within 3 months of a general election or if the VEC determines there is insufficient time to fill the vacancy before that time.

Clause 289 provides that a by-election must be held to fill an extraordinary vacancy in a single Councillor ward or where there are no eligible candidates from the last election available to be elected by a countback.

A by-election must be held on a Saturday on a date fixed by the VEC within 100 days of the vacancy or up to 150 days if the VEC considers a by-election within 100 days would be adversely affected by public holidays or school holidays. In such circumstances, the Commission may also set a different date for close of the roll or nomination day.

Clause 290 provides that a countback must be held in multi-Councillor wards where there are any eligible candidates from the last election or countback available to be elected.

Division 5—Conduct of elections

Clause 291 provides that the system of voting for general elections and byelections—either postal voting, attendance voting or any other form of voting—is determined by the Minister on the advice of the VEC.

The voting system for the general election in 2020 and subsequent by-elections must be determined not later than 12 months before that general election. The Minister may change the voting system no later than 12 months before a subsequent general election. A general election must apply the voting system that applies under the Minister's most recent determination and a by-election must apply the voting system used for the preceding general election.

Clause 292 provides that an election must be conducted in accordance with this Act and the Regulations and that the VEC may use electronic counting equipment to count the votes.

Clause 293 provides that an election must be held when the number of candidates exceeds the number of vacancies. If the number of candidates is equal to or less than the vacancies, those candidates are declared elected. Vacancies for the remaining unfilled positions, or in the event of no candidates, are treated as occurring on nomination day.

Clause 294 provides that a person is only entitled to one vote at an election for each municipal district in which they are enrolled.

Clause 295 provides that voting is compulsory for all residents enrolled on the voters' roll unless exempted under regulations. Failing to vote is an offence.

Clause 296 enables an infringement to be served on any person for apparent failure to vote at Council elections. The Infringements Act 2006 applies. The infringement notice must contain specified details about the relevant election. Payments received in relation to enforcement and prosecution of non-voting offences must be paid to the relevant Council.

Clause 297 enables the VEC to invoice each Council for its reasonable costs in preparing the voters' roll, conducting elections and non-voting enforcement. A Council having received a quotation for the election cost 6 months ahead of the election, may request the ESC within one month of receiving the quotation to review its fairness. The VEC must have regard of the ESC's assessment of whether or not the quotation fairly represents the cost of conducting the election.

Clause 298 requires voters at Council elections to mark ballot papers 1, 2, 3 and so forth opposite the names of all candidates in order of preference in an unbroken sequence. Sufficient compliance is achieved if the numbers opposite all candidates but one, are marked. Where a voter's intention is clear, a ballot paper is to be given effect, unless otherwise provided for in the Act.

Clause 299 provides that the validity of an election is not affected by defects in appointments, irregularities in proceedings preliminary to voting, failure to hold an election at an appointed place, failure to comply with a direction or mistakes in the use of forms, where the election result is not affected.

Division 6—Counting of votes—single vacancy

Clause 300 provides that this Division applies to elections where one vacancy is to be filled.

Clause 301 provides that if there are only 2 candidates, the candidate with the greater number of first preferences is declared elected. If there is a tie in first preference votes, the result is determined by lot.

Clause 302 provides that if there are more than 2 candidates, a candidate must receive an absolute majority of votes to be declared elected. If no candidate receives such a majority, the candidate with the least amount of first preference votes is declared defeated and next preference on their ballot papers are redistributed to remaining candidates. This process is repeated until a candidate receives an absolute majority.

Division 7—Counting of votes—any election to which
Division 6 does not apply

Clause 303 provides that this Division applies to elections where more than one vacancy is to be filled.

Clause 304 provides for a proportional representation system of counting votes to elect Councillors. This is the vote counting system used for the Victorian Legislative Council.

Under the proportional representation system, a candidate must obtain a quota of votes. A quota is calculated by dividing the total number of votes by one more than the number of vacancies and then adding one vote.

Division 8—Countback process and counting of votes

Clause 305 defines terms relating to countbacks conducted under this Division.

Clause 306 provides that the election manager must exclude from a countback any candidate the manager knows has died or has ceased to be eligible to be elected.

Clause 307 provides that for multiple vacancies to be filled at a countback, the vacancy that occurred first is to be filled. If impossible to determine which vacancy occurred first, the Councillor originally elected first is deemed to have left office first. If still not possible to determine, the first vacancy is determined by lot.

Clause 308 provides that a countback fails if there are no eligible candidates.

Clause 309 provides that if there is only one eligible candidate, that person is invited to submit a declaration of eligibility within 14 days. If submitted, the candidate is declared elected; if not, the countback fails.

Clause 310 provides that if there is more than one eligible candidate, notice must be given to eligible candidates and on the VEC's website providing details on the countback, which must be held at least 14 days later.

Clause 311 provides that the candidate who would be elected following the countback must be invited to submit a declaration of eligibility within 48 hours. If submitted, the candidate is declared elected; if not, a further count is held. This process is repeated until a declaration is submitted and candidate elected.

Clause 312 provides that a by-election is held if a countback fails.

Clause 313 provides that a candidate completing a declaration of eligibility is to be publicly declared elected.

Clause 314 sets out the process for conducting a countback. The system for counting votes to elect a Councillor in a multi-Councillor ward under Division 7 is used, with preferences on ballot papers for vacating Councillors and excluded ineligible candidates disregarded. The countback does not affect the election of a previously elected candidate.

Division 9—Electoral offences

Clause 315 provides an offence and specifies a maximum penalty level for nominating at elections when not qualified to be a Councillor or not entitled to nominate.

Clause 316 provides an offence and specifies a maximum penalty level for failing to authorise electoral material. Certain types of electoral material do not require authorisation.

Clause 317 provides offences and specifies a maximum penalty level for producing material which is misleading or deceptive in relation to the casting of a vote or that is likely to induce a voter to mark a ballot paper not in accordance with directions.

Clause 318 provides an offence and specifies a maximum penalty level for failing to comply with requirements in relation to heading newspaper electoral advertisements.

Clause 319 provides an offence and specifies a maximum penalty level for failing to identify the author of an article containing electoral matter in a newspaper, circular or pamphlet.

Clause 320 provides offences and specifies a maximum penalty level for making available outside voting centres, printed electoral material other than registered how-to-vote cards.

Clause 321 enables a request for inspection of and handing over of unregistered how-to-vote cards at a voting centre, and provides an offence and specifies a maximum penalty level for failing to comply with the request.

Clause 322 provides for an indictable offence and specifies a maximum penalty level for making materially false or misleading statements in declarations and applications at elections and in relation to voter enrolment.

Clause 323 provides for indictable offences and maximum penalty levels for forging ballot-papers and other election documents, voting more than once or voting for someone else.

Clause 324 provides an offence and specifies a maximum penalty level for conducting activities within and around voting centres.

Clause 325 provides an indictable offence and specifies a maximum penalty level for tampering with ballot-papers, ballot-boxes and other material used at an election.

Clause 326 provides an offence and specifies a maximum penalty level for interfering with the secrecy of a voter's vote.

Clause 327 provides an offence and specifies a maximum penalty level for failing to post a postal ballot-paper on behalf of a voter as agreed.

Clause 328 provides an indictable offence and specifies a maximum penalty level for interfering with postal ballot materials.

Clause 329 provides indictable offences and specifies a maximum penalty level for giving and receiving bribes in relation to elections.

Clause 330 provides indictable offences and maximum penalty levels for interfering with others' political rights at an election and influencing a person's vote by violence or intimidation. Offences also apply for demonstrations and broadcasting near voting centres and interference with voters when marking ballot-papers.

Clause 331 empowers electoral officials with the aid of police officers, to maintain order and keep the peace at venues used at elections.

Clause 332 provides an offence and specifies a maximum penalty level for falsifying enrolment records and altering a voters' roll without authority by election officials and Council staff. An offence also applies in relation to impersonating an election official.

Clause 333 provides an offence and specifies a maximum penalty level if a Councillor or member of Council staff uses Council resources to affect an election, or intentionally or recklessly produces electoral material on behalf of the Council during the election period.

Clause 334 empowers the Supreme Court to grant an injunction or interim injunction restraining a person from producing unauthorised or misleading or deceptive electoral material.

Division 10—Election campaign donations

Clause 335 requires all candidates at local government elections to lodge an election campaign donation return with the Chief Municipal Inspector. A return must be lodged within 21 days of receipt of a donation, or within 7 days of nomination day where the donation was received before that day. Such donations are gifts in connection with the campaign equal to or exceeding the amount or value of the gift disclosure threshold, defined as being $500 or a higher prescribed amount.

A candidate who receives no donation must lodge an election campaign donation return with the Chief Municipal Inspector no later than 40 days after election day. Members of groups or teams must declare all donations to the team or group to which they belong.

Clause 336 provides an offence and specifies a maximum penalty level for failing to lodge an election campaign donation return as required, lodging an incomplete return or providing false and misleading information to a person required to lodge a return. A court may subsequently order that a correct return be completed and lodged.

Clause 337 prohibits candidates and those acting on their behalf from receiving gifts where the donor's name and address are unknown. Gifts unlawfully received are forfeited to the Council and may be recovered from the candidate.

Clause 338 requires the Chief Municipal Inspector to publish online a summary of election campaign donation returns lodged.

Division 11—Disputing the validity of an election

Clause 339 provides that an application may be made to VCAT for a review of a declared election result.

An application must be made within 14 days by a candidate, 10 enrolled voters or the VEC.

Clause 340 details the powers of VCAT in regard to the review of an election result.

Part 10—General provisions

Clause 341 subclause (1) provides that the Secretary, a Council or a person authorised by the Council may institute proceedings in the name of the Council.

Subclause (2) provides for the CEO or a person authorised by the Council to represent the Council.

Subclause (3) requires proceedings for a summary offence under the Act to be initiated within 3 years of the alleged offence.

Clause 342 provides for notices given to, or served on, a Council.

Clause 343 provides for notices given to, or served on, a person.

Clause 344 provides that a statutory declaration is evidence of a document having been served or given.

Clause 345 provides for the Minister or the Secretary to delegate powers, duties or functions.

Clause 346 makes it an offence to obstruct the Council or a member of Council staff.

Clause 347 deals with instances where a person aids or abets in an offence or 2 or more persons are responsible for the same offence.

Clause 348 provides for an officer of a body corporate to be guilty of an offence committed by the body corporate in certain circumstances.

Clause 349 provides for a Councillor to be surcharged if the Councillor's misconduct has resulted in expenditure being incurred in contravention of any Act, regulation or local law.

A Councillor subject to a surcharge may apply to VCAT for a review of the decision.

Clause 350 provides for the payment of a surcharge. If a Councillor fails to pay a surcharge within 3 months they cease to be a Councillor.

Clause 351 deals with evidence of ownership of land.

Clause 352 is an evidentiary provision.

Subclause (1) provides that proof is not required of listed matters unless evidence is given to the contrary.

Subclauses (2) and (3) provide for documents signed by the CEO to be admissible in evidence.

Clause 353 provides for the making of regulations under the Bill and describes certain matters that may be provided for in regulations. This includes a capacity to impose a penalty not exceeding 20 penalty units and the setting of fees.

Regulations made under the Bill may be disallowed by either House of Parliament in accordance with section 23(2) of the Subordinate Legislation Act 1994.

Clause 354 lists specific electoral matters that may be the subject of regulations.

Clause 355 provides for the making of transitional regulations consequent to the enactment of the Bill.