Local Government Bill 2018
Introduction Print
EXPLANATORY MEMORANDUM
581079
BILL LA INTRODUCTION 22/5/2018
General
The Bill provides for a contemporary legislative framework for local government in Victoria that enhances democracy, council transparency and responsiveness to community and the State.
Coverage of the Bill includes—
-
The structure and constitution of a Council, the election of Councillors and the appointment of a Council administration;
-
The role of a Council and the principles and other matters that describe the manner in which a Council must perform that role;
-
Integrated strategic planning and financial management;
-
The declaration of municipal rates, service charges and special purpose charges; and
-
The standards of conduct expected of Councillors and Council officials to support required standards of integrity and oversight and enforcement mechanisms to give effect to these standards.
The Bill repeals and re-enacts the Local Government Act 1989 (except provisions dealing with sewers and drains, drainage and transport) with amendments, repeals the City of Greater Geelong Act 1993, amends the City of Melbourne Act 2001 to give effect to changes arising from a review of the Local Government Act 1989 and amends the Victorian Grants Commission Act 1976.
Clause Notes
Part 1—Preliminary
Clause 1 sets out the purpose of the Bill. The main purpose of the Bill is to give effect to section 74A(1) of the Constitution Act 1975 which provides that local government is a distinct and essential tier of government consisting of democratically elected Councils having the functions and powers that the Parliament considers are necessary to ensure the peace, order and good government of each municipal district.
Clause 2 is the commencement clause. It provides for the introduction of the Bill in 4 stages.
The clauses listed in subclause (1) come into operation on 1 November 2018. These clauses introduce the constitution and structures of Councils, the role, powers and functions of Councils and the guiding principles for the Bill.
The clauses listed in subclause (2) come into operation on 1 January 2019. These clauses introduce key council policies, including the community engagement policy, and the Audit and Risk Committee.
The clauses listed in subclause (3) come into operation on
1 July 2019. These clauses introduce new governance processes, financial management requirements and council integrity processes.
Clauses 49 and 389 and item 80 of Schedule 1 come into operation on a day to be proclaimed and no later than 1 January 2020. These clauses relate to the long service leave entitlements of Council staff.
The remaining provisions come into operation on 1 January 2020. These clauses introduce the new rating and strategic planning requirements and the new roles and responsibilities of Councillors, Mayors and Deputy Mayors. This will ensure that the provisions relating specifically to Councillors will apply from the new Council term following the general election of all Councils in 2020.
Clause 3 provides for definitions of various terms used in the Bill. Specific definitions are described in clause notes when relevant to those particular clauses.
Clause 4 describes the objectives of this Bill. These include the continuation of local government as a democratically elected tier of government.
Clause 5 provides that this Bill is interface legislation within the meaning of the Transport Integration Act 2010. This requires Councils, when exercising powers, performing functions or making decisions under the Bill which are likely to have a significant impact on the transport system, to have regard to the transport system objectives and the decision-making principles in the Transport Integration Act 2010 among other things.
Clause 6 provides that this Bill is filming approval legislation within the meaning of the Filming Approval Act 2014. This requires Councils to comply with the film friendly principles under the Filming Approval Act 2014 when performing any functions or duties or exercising any powers under the Bill in relation to commercial filming on public land.
Clause 7 describes the obligations of a Council in relation to Yarra River land under the Yarra River Protection (Wilip-gin Birrarung murron) Act 2017. This includes behaving in a way consistent with the Yarra Strategic Plan as defined in subclause (1).
Adherence to the Yarra Strategic Plan does not apply to projects undertaken within the meaning of the Major Transport Projects Facilitation Act as described in subclause (2).
Part 2—Councils
Division 1—Role and powers of a Council
Clause 8 describes the role of a Council, which is to provide good governance for the benefit and wellbeing of the municipal community. The purpose of this clause is to ensure that Councils use their powers and abilities for the public benefit of their communities and in a manner consistent with good governance.
Good governance is defined by subclause (2) and is achieved when a Council applies the overarching governance principles described in clause 9. The provision of good governance, through the application of the overarching governance principles is a core concept in the Bill. It defines a standard to which Councils will be held accountable and a failure to provide good governance may result in Ministerial intervention under Part 8.
Subclause (3) is an enabling provision that allows a Council to perform the duties and functions and exercise the powers conferred under the Bill and any other Act as well to perform any other functions that are necessary for the Council to perform its role. This clause empowers Councils to carry out the functions needed to support their community but does not empower a Council to exercise its role in a manner that is inconsistent with laws made by the Parliament or made under the Parliament's authority.
Subclause (4) provides that if necessary for its role, a Council may perform a function outside of its municipal district. This enables a Council to make decisions and perform functions outside of the municipality, including through participation in a joint meeting of Councils under clause 60.
Clause 9 describes the overarching governance principles and states that a Council must give effect to those principles when performing its role.
The overarching governance principles are mandatory for all Councils. Councils will be required to apply these principles in their decisions and actions and particularly when adopting plans and policies required by this Bill.
The overarching governance principles define the core requirements for a Council. Among other things, they require a Council to act lawfully, give priority to the best outcomes for the municipal community, engage the municipal community in strategic planning, ensure the ongoing financial viability of the Council and ensure the transparency of Council decisions, actions and information.
Subclause (3) provides that in giving effect to the overarching governance principles, a Council must take into account the supporting principles. These supporting principles, elaborate the intent of the overarching governance principles.
Clause 10 provides the general power of Councils, subject to any limitations or restrictions imposed by this Bill or any other Act, to do all things necessary or convenient to be done in connection with the performance of their role. This is not limited by the conferring of specific powers by or under this Bill or any other Act.
Clause 11 provides for a Council to delegate powers, duties or functions to a delegated committee established under clause 61 or to the Chief Executive Officer (CEO) of the Council. This enables a Council to focus its efforts on strategic plans and policies and other matters of particular importance for the municipal community.
Subclause (2) lists the matters that cannot to be delegated. Among other things, these include the election of the Mayor and the adoption of the Council Plan and the Council Budget.
In order to ensure appropriate transparency and accountability, the delegation power is subject to the following—
-
any delegation to enter into a contract must include a financial limit;
-
Council delegations must be reviewed within 12 months after a general election; and
-
a public register of the delegations must be kept.
Until a new delegation is made under this Bill, a delegation made under the Local Government Act 1989 continues to apply as if the delegation had been made under the Local Government Act 2018.
Division 2—Constitution of a Council
Clause 12 provides that a Council consists of its Councillors who are democratically elected in accordance with this Bill. This is consistent with section 74A(1A) of the Constitution Act 1975.
Clause 13 states that a Council must have between 5 and 12 Councillors and describes the allowable structures for a Council.
Subclause (2) states that the Mayor and Deputy Mayor are Councillors. This means that any references to Councillors in this Bill or any other Act apply to the Mayor and Deputy Mayor unless otherwise stated.
Subclause (3) provides that the number of Councillors to be elected for each Council will be determined in accordance with criteria prescribed in regulations. It is intended that the prescribed criteria will be based on the population and geographic size of the municipality.
In order to ensure all Councillors elected to a Council require similar numbers of votes to be elected as Councillor, all Councils must be elected under one of the following structures described in subclause (4)—
-
all Councillors elected in an unsubdivided municipal district;
-
all Councillors elected in multi-member wards where each ward elects the same number of Councillors; or
-
all Councillors elected in single member wards.
Clause 14 provides that a Council is a body corporate with perpetual succession and an official seal. Councils may sue and be sued, acquire, hold and dispose of real and personal property, do and suffer all acts and things that a body corporate may by law do and suffer.
Subclauses (2) and (3) specify requirements for the common seal of a Council and provide that courts must presume the seal has been properly used unless proven otherwise.
Clause 15 provides for an Order in Council to be made to specify or alter the electoral structure of a Council. These Orders are necessary to establish or vary a Council's electoral structure in accordance with clause 13.
Subclause (2) provides that before seeking an Order to vary an electoral structure using wards, the Minister must seek to ensure an approximate equality of votes between Councillors. This is to maintain fair and equitable representation.
Subclause (3) specifies certain conditions and permissions for an Order in Council under this clause.
Clause 16 provides for an electoral representation advisory panel to be established by the Minister prior to making a recommendation to the Governor in Council to change to the electoral structure of a Council under clause 15.
An electoral representation advisory panel must be convened by the Minister in specified circumstances, and if a panel is convened the advice of the panel must be considered by the Minister before recommending the making of an Order in Council under clause 15.
An electoral representation advisory panel must include the Victorian Electoral Commission (VEC) and must not include persons listed in subclause (5).
If established, a panel must recommend an electoral structure that—
-
provides fair and equitable representation;
-
facilitates good governance; and
-
complies with any prescribed regulations.
The purpose of this clause is to formalise a process whereby the Minister can seek independent and expert advice on a Council's electoral structure. It is not intended that the Minister be bound to implement a recommendation of a panel.
An electoral representation advisory panel may conduct its review in any manner the panel considers appropriate with regard to any Regulations made under this clause, and must include a process of community engagement to ensure public participation.
The Council must pay the reasonable costs of the review.
Clause 17 provides for the conduct of a ward boundary review if and when the VEC advises the Minister that the number of voters in each ward will vary by more than 10 per cent by the next general election. This is the ensure that the ward boundaries of a Council continue to provide for fair and equitable representation.
The role of the VEC is to review the boundaries and report back on any recommended changes. The VEC may conduct the review in any manner it considers appropriate but must include community engagement to ensure public participation. The VEC may require the Council to pay the reasonable expenses of conducting the review.
The Minister may seek Orders in Council to implement the recommendations of the VEC.
Division 3—The Mayor and the Deputy Mayor
Clause 18 sets out the role of the Mayor and makes clear that a Mayor may not simultaneously hold the office of Deputy Mayor.
Clause 19 gives the Mayor 3 specific powers. These allow the Mayor—
-
to appoint a Councillor to chair a delegated committee, which may override an appointment made by the Council;
-
subject to the Council's Governance Rules, to direct a Councillor to leave a Council meeting if the Councillor is preventing the Council from conducting its business; and
-
to require the CEO to report to the Council on the implementation of a Council decision.
These powers support the role of the Mayor as the leader, chairperson and spokesperson for the Council.
Clause 20 describes the circumstances and times when the office of Mayor becomes vacant.
Clause 21 provides for the Deputy Mayor to exercise the role and powers of Mayor when the Mayor is unable to attend a Council meeting or is incapable of performing the duties of the office.
Clause 22 describes the circumstances and times when the office of a Deputy Mayor becomes vacant.
Clause 23 describes the process for declaring the office of a 2 year term Mayor or Deputy Mayor vacant.
This declaration can only occur if—
-
a notice of motion is signed by an absolute majority of the Councillors and lodged with the CEO at least 14 days before the meeting; and
-
at least three-quarters of the Councillors vote in favour of the motion to vacate the office of Mayor or Deputy Mayor.
This clause does not apply to Mayors or Deputy Mayors elected to serve a one year term under clause 26.
The Bill does not specify grounds for a declaration under this clause. However, this power is only intended for use in extraordinary circumstances, such as when an overwhelming proportion of Councillors have lost faith in the leadership of the Mayor or when the actions of the Mayor demonstrate a lack of fitness for the office.
Clause 24 provides that the Minister may establish a Local Government Mayoral Advisory Panel that includes at least 5 Mayors and is chaired by the Minister.
Division 4—Election of Mayor and Deputy Mayor
Clause 25 describes the process for electing the Mayor.
Subclause (2) provides that any Councillor is eligible to be the Mayor unless prohibited from holding the office as a result of a decision of a Councillor Conduct Panel under clause 201.
Subclause (2) requires the election to be chaired by the CEO and conducted in accordance with the Council's Governance Rules.
Subclause (6) states that if there is only one candidate for Mayor, that Councillor is elected.
Subclauses (4), (5) and (7) require the Mayor to be elected by an absolute majority of the Councillors and allows the Council to defer the election if an absolute majority cannot be obtained. The purpose of these provisions is the ensure that the Councillor elected to be the Mayor has the support of a majority of the Council. Without these provisions, it is possible for a Councillor to be elected Mayor and to exercise the powers of the Mayoral office without having majority support. This might occur, for example, if one or more Councillors were absent from the meeting to elect the Mayor.
Clause 26 specifies when a Mayor is to be elected and the term of office of the Mayor.
Subclause (2) requires the Mayor of the Greater Geelong City Council to be elected for a 2-year term.
Subclause (3) requires other Councils to determine by resolution whether to elect the Mayor for a 1 or 2 year term.
Subclauses (1), (4), (5) and (6) require the Mayor to be elected at the following times—
-
no later than 1 month after a general election;
-
on a day to be determined by the Council that is as near as practicable to the end of a one year or 2 year Mayoral term, as applicable; and
-
within one month after any vacancy in the office of Mayor occurs.
Subclause (7) states that the election is not invalidated by occurring after the specified time.
Subclause (8) specifies that a Mayor elected to fill a vacancy in the Mayoral office during a 1 or 2 year term only serves the remainder of that 1 or 2 year term. This is to ensure that the normal cycle of mayoral elections is maintained.
Clause 27 provides for the Deputy Mayor to be elected in the same circumstance and manner as the election of Mayor.
Division 5—Councillors
Clause 28 describes the role of a Councillor.
The role of a Councillor includes participating in the decision-making of the Council as a member of the Council. In doing this a Councillor must represent the interests of the municipal community. Municipal community is defined in clause 3 to be—
-
people who live in the municipal district;
-
people and bodies who are ratepayers;
-
people and bodies who conduct activities in the municipal district; and
-
traditional owners as defined in the Bill.
The role of a Councillor also includes contributing to the strategic direction of the Council. This is intended to ensure that Councillors take a strategic approach and do not only focus on narrow issues.
Subclause (2) describes standards that a Councillor must maintain when performing their role. This includes acting with integrity, facilitating effective communication with the community and supporting the Mayor.
Subclause (2) also requires a Councillor to consider the diversity of interests and needs of the municipal community. A Councillor should take account of the range of community interests and needs and not limit their interests to a section of the community or to the constituents of the ward in which they were elected.
Subclause (3) states that the role of a Councillor does not include any responsibility or function of the CEO. The role of a Councillor, for example, does not include staffing matters, which are a responsibility of the CEO.
Clause 29 defines the term of office of a Councillor.
Clause 30 requires a person elected as a Councillor to take the oath or affirmation of office before they may act as a Councillor. Details of the oath and affirmation will be prescribed in regulations and are intended to require a Councillor to commit to—
-
undertaking the duties of office in the best interests of the municipal community; and
-
abiding by the Councillor Code of Conduct.
Clause 31 specifies that the office of a Councillor becomes vacant if the Councillor does not take the oath or affirmation within 3 months of election.
Clause 32 lists the qualifications that a person must satisfy to be a Councillor.
Subclause (1) describes the essential requirements to be a Councillor in terms of age, citizenship and voting entitlement.
Subclause (2) describes the particular circumstances in which a person is not qualified to be a Councillor. This includes where a person holds an incompatible office or has been convicted of certain types of offences.
Clause 33 specifies circumstances when a Councillor ceases to hold office and the office of Councillor becomes vacant. This includes where the person is no longer qualified under clause 32, when the Councillor dies or resigns or where the Councillor's qualification as an enrolled voter ceases to apply.
A Councillor also ceases to hold office under subclause (1)(e) if the Councillor fails to attend a Council meeting for 4 consecutive calendar months without being granted leave by the Council, which it cannot unreasonably refuse. Subclauses (5) and (6) lists the circumstances when this does not apply, including—
-
during ouster proceedings;
-
while the Councillor is subject to suspension; and
-
during the period of 6 months after a Councillor becomes a parent and has caring responsibilities for the child.
Subclause (7) states that a Councillor cannot revoke a resignation.
Clause 34 provides for ouster proceedings in the Supreme Court where it is alleged that a Councillor holds office contrary to the Bill.
Clause 35 describes the circumstances that apply if a Councillor is suspended from office.
Clause 36 subclauses (1) and (2) make it an offence and specifies the maximum penalties for a person to act as a councillor when they know, or should reasonably know they are not qualified or have ceased to hold office.
Subclause (3) states that a person who acts as a Councillor when not qualified may be found guilty of an offence as a Councillor as if they had been qualified. This is to ensure a person cannot escape prosecution if they were not qualified to act as a Councillor at the time of the offence.
Division 6—Entitlements
Clause 37 provides for the Minister to specify the allowances payable to Mayors, Deputy Mayors and Councillors. The Minister may set allowances for different Councils or different categories of Councils and may provide for annual increments.
This clause does not preclude the Minister seeking independent advice or recommendations on allowances from an advisory panel, or other body.
Clause 38 requires the Council to pay allowances to the Mayor, Deputy Mayor and Councillors in accordance with clause 37. A Mayor, Deputy Mayor or Councillor may elect to receive no allowance or only part of an allowance.
Clause 39 requires the Council to reimburse Councillors and members of delegated committees their out-of-pocket expenses. This is subject to the expenses being bona fide, reasonably incurred and necessary to perform their role.
Subclause (2) requires the Council to notify the Audit and Risk Committee of all reimbursements made under this clause. This is intended as a check on any inappropriate use of public funds.
Clause 40 requires a Council to adopt an expenses policy in regard to the reimbursement of out-of-pocket expenses.
Subclause (2) specifies the matters that must be addressed in the expenses policy.
Subclause (3) requires that a Council adopt its first expenses policy under this clause within 6 months of commencement of this clause.
Subclause (4) makes clear that an expenses policy adopted under the Local Government Act 1989 applies until a new policy is adopted by a Council under this Bill.
Clause 41 provides that the Council must make available to the Mayor and Councillors the resources necessary for them to effectively perform their role. This includes providing support and taking account of any caring responsibilities.
Clause 42 requires a Council to indemnify Councillors and members of delegated committees.
Division 7—Chief Executive Officer and members of Council staff
Clause 43 requires that a Council must have a CEO. This is essential, as the office of CEO is a key role under the Bill, with responsibilities that include overseeing the administration of the Council and ensuring the decisions of the Council are implemented.
Subclause (1) requires the Council to appoint a natural person as CEO in accordance with its CEO Employment and Remuneration Policy.
Subclauses (2) and (3) require a CEO to be employed under a contract that does not exceed 5 years and that the CEO may be reappointed for a subsequent contract.
Subclause (4) requires the Council to appoint a person to be the acting CEO if the position is vacant or the CEO is unable to perform their duties.
Subclause (5) states that a CEO or acting CEO is a member of Council staff. This means that provisions in the Bill applying to Council staff also apply to the CEO.
Subclause (6) requires the Council to comply with any regulations made in regard to the employment of a CEO.
Clause 44 requires a Council to have a CEO Employment and Remuneration Policy that is consistent with the principles in the Government of Victoria's Policy on Executive Remuneration in Public Entities. This is intended to provide for Councils to maintain standards that are consistent with the standards applying to other public bodies.
Among other things, the CEO Employment and Remuneration Policy must provide for the Council to get independent professional advice in regard to the recruitment, remuneration and performance monitoring of the CEO. This policy must be adopted within 6 months of the commencement of this section.
Clause 45 describes the responsibilities of the CEO. These are in 2 parts dealing with supporting the Mayor and Councillors and ensuring the proper management of the Council.
Subclause (2) requires the CEO to support the Mayor and Councillors by, among other things, ensuring Council decisions are implemented, advising the Council of its legal obligations and setting the agenda for a Council meeting after consulting the Mayor.
Subclause (3) requires the CEO to have responsibility for the operations of the Council by, among other things, maintaining an organisational structure, being responsible for staffing matters, and ensuring there are protocols to support interactions between Councillors and Council staff.
Subclauses (4), (5), (6) and (7) require the CEO to develop (within 6 months of commencement of this clause) and maintain a workforce plan for at least the next 4 years. The workforce plan must include measures to ensure gender equity, diversity and inclusiveness that comply with any regulations made for the purpose.
The CEO must consult affected staff before implementing a proposed organisational restructure and must notify the Council if a proposed restructure will affect the delivery of the Council Plan adopted under clause 85.
Clause 46 provides for the CEO to delegate a power, duty or function.
Subclause (1) deals with the delegation of powers, duties and functions that have been delegated to the CEO by the Council under clause 11. Under this subclause, a CEO may delegate these powers to members of Council staff or the members of a Community Asset Committee.
Subclauses (2) and (3) deal with the delegation of powers, duties and functions conferred on the CEO. These may only be delegated to members of Council staff. They may be delegated to a named person or to the holder of a specified position.
Subclause (4) deals with delegations by the CEO to a Community Asset Committee. While a Community Asset Committee is established by the Council, its role is administrative, which is why it only receives authority to exercise powers from the CEO and must report to the CEO. When delegating a power, duty or function to a Community Asset Committee, the CEO must specify the terms and conditions that apply to the delegation, which must include the matters specified in this clause.
Subclause (5) provides that a delegation to a member of a Community Asset Committee may only be exercised while acting as a member of the Committee.
Subclause (6) requires the CEO to report to the Council annually on the performance of each Asset Management Committee that has received a delegation.
Subclause (7) requires the CEO to keep a register of delegations made under this clause.
Subclause (8) requires the CEO to make new delegations under this clause within 6 months of its commencement.
Subclause (9) provides that a delegation made under the Local Government Act 1989 continues to apply until a new delegation is made under this clause.
Clause 47 provides for the CEO to appoint members of Council staff consistent with the Council workforce plan.
Subclauses (2) and (3) require a CEO to adopt and maintain a recruitment policy based on merit within 6 months after the commencement of this clause.
Subclause (4) provides for the CEO to authorise members of staff to witness statutory declarations or take affidavits for the purpose the Evidence (Miscellaneous Provisions) Act 1958.
Subclauses (5) and (6) prohibit the appointment to Council staff of a person who has been a Councillor of the Council in the preceding 2 years.
Clause 48 requires the CEO to implement a Code of Conduct for Council staff and ensure all members of staff have access to the Code of Conduct. This must be in place within 6 months of commencement of this clause.
In order to support appropriate standards of integrity, a Code of Conduct for Council staff must include—
-
a gifts policy that includes provision for a gifts register;
-
procedures for dealing with alleged and actual conflict of interest breaches; and
-
provision for taking disciplinary action.
Clause 49 provides for the making of long service leave regulations that Councils must implement for members of Council staff.
Clause 50 provides that an action taken by a member of Council staff is not invalid only because the person's employment contract was void at the time.
Clause 51 provides for the Council to indemnify members of Council staff. This only applies to actions taken in good faith.
Division 8—Audit and Risk Committee
Clause 52 requires Councils to establish an Audit and Risk Committee.
Subclause (2) provides that an Audit and Risk Committee is not a delegated committee. This is intended to ensure that the audit and risk committee operates in an advisory capacity.
Subclause (3) provides that an Audit and Risk Committee must include members who are Councillors, must consist of a majority of members who are not Councillors, and must not include members of the Council's staff. This ensures that the majority of members of the Committee are independent of the Council.
The independent members must collectively possess expertise in financial management and risk assessment and experience in public sector governance.
Subclause (4) provides that the Audit and Risk Committee chairperson must not be a Councillor.
Subclause (5) provides that the following integrity standards apply to the independent members of an Audit and Risk Committee, even though it is not a delegated committee—
-
the prohibition on misuse of position under clause 161;
-
the prohibition on disclosure of confidential information under clause 163; and
-
the requirement to disclose conflicts of interest under Division 2 of Part 7.
Subclause (6) provides that the Council may pay a fee to the independent members of an Audit and Risk Committee.
Clause 53 requires Councils to prepare and approve an Audit and Risk Committee Charter.
Subclause (2) sets out the functions and responsibilities of the Audit and Risk Committee that must be included in the Audit and Risk Committee Charter. This is intended to ensure that the Audit and Risk Committee's scope includes monitoring policies, principles, legal requirements, reporting, risk management and fraud prevention systems and controls, and internal and external audits.
The requirement for Audit and Risk Committee's to monitor the compliance of Council policies and procedures with the overarching governance principles is a new and important requirement that supports the operation of clause 9.
Subclause (3) requires an Audit and Risk Committee to adopt an annual work program.
Subclause (4) provides for an annual assessment of its performance to be undertaken by the Audit and Risk Committee and provided to the CEO for tabling at the next ordinary meeting of the Council.
Subclause (5) provides that an Audit and Risk Committee must prepare a biannual report that describes its activities and includes its findings and recommendations. A copy of the report must be provided to the CEO for tabling at the next Council meeting.
Subclause (6) requires the CEO to ensure the preparation and maintenance of Audit and Risk Committee agendas, minutes and reports and to table the Committee's reports and annual assessments at Council meetings when required.
Subclause (7) requires that a Council approve the first Audit and Risk Committee Charter within 6 months of this clause commencing.
Division 1—Community accountability
Clause 54 requires Councils to adopt and maintain a community engagement policy. This must be done in consultation with the municipal community within 6 months of commencement of this clause. This is a key Council policy that must give effect to the community engagement principles in clause 55.
Subclause (2) describes matters that must be addressed or included in a community engagement policy, including the types of community engagement that will be used for different types of matters and how the community will be informed of the outcomes of engagement processes.
Subclause (3) requires the community engagement processes used for the Council Plan and the first Budget after a general election to be undertaken in collaboration with the community. This is intended to mean that the community engagement used for these processes must be the highest form of engagement within the hierarchy of engagement types.
Clause 55 describes the community engagement principles. These principles expand on the overarching governance principles in clause 9, and particularly the principle that states that "… the municipal community is to be engaged in strategic planning and decision making".
A Council must have regard to the community engagement principles. This is not limited to occasions where engagement or consultation is prescribed in legislation. The intent of the Bill is that Councils will actively initiate, promote and support community engagement whenever they are making strategic or significant decisions.
Clause 56 requires Councils to adopt, within 6 months of commencement of this clause, and maintain a public transparency policy.
This is a key Council policy that must give effect to the public transparency principles in clause 57.
Subclause (2) describes matters that must be addressed or included in a public transparency policy, including which documents and information will be publicly available. Publicly available documents must include all policies, plans and reports required under this Bill or any other Act unless prescribed otherwise or where public availability would be contrary to the public interest.
Clause 57 describes the public transparency principles. These principles expand on the overarching governance principles in clause 9, and particularly the principle that states that "… the public accountability of the Council must be recognised and the transparency of Council decisions, actions and information is to be ensured.".
A Council must have regard to the public transparency principles, which include facilitating transparency in decision making processes and public awareness of the availability of Council information.
Division 2—Procedure and proceedings
Clause 58 requires a Council to adopt, within 6 months of commencement of this clause, and maintain Governance Rules. The Governance Rules will provide the processes that apply to council decision making including the specific matters listed in subclause (1).
The Governance Rules must support the overarching governance principles, including the requirements regarding community engagement and transparency. To achieve this, Governance Rules must be developed with community engagement. A failure by a Council to adopt Governance Rules that give effect to the overarching governance principles may lead to the issuing of a governance direction by the Minister under clause 209.
Subclause (2) details additional requirements for Governance Rules that are intended to support the provision of natural justice. The Governance Rules must ensure that Council decision making processes provide that—
-
matters are considered fairly and on their merits; and
-
people whose rights will be directly affected by a decision can communicate their views and have their interests considered.
Subclauses (3) and (4) detail the community engagement requirements for the development of Governance Rules.
Subclause (5) states that a Council must comply with its Governance Rules.
Subclause (7) provides for Council Local Law Meeting Procedures made under the Local Government Act 1989 to apply until the Council adopts its Governance Rules in accordance with this clause.
Clause 59 defines a Council meeting and describes how the result of a Council vote is to be determined.
Subclause (1) states that a Council meeting is a meeting of the Council where all the Councillors are entitled to attend and vote, unless otherwise specified in the Bill.
Subclause (2) gives the Council discretion as to how to conduct a Council meeting, subject to the Bill and the Council's Governance Rules.
Subclauses (3) and (6) define a quorum to be an absolute majority of the Councillors.
Subclauses (4) and (5) describe the voting process and how the result of a vote is determined. A vote is to be determined in the affirmative if a majority of the Councillors in the meeting vote in favour. For the purpose of counting the votes, an abstention is counted in the negative. Unless the vote relates to the election of the Mayor or Deputy Mayor or a declaration that the office of the Mayor or Deputy Mayor is vacant, the chairperson may cast a second vote if exactly half the Councillors in the room vote in favour of a motion.
The purpose of specifying in the Bill when a motion is decided in the affirmative in a Council meeting is to remove doubt about the result of any vote.
Clause 60 provides for 2 or more Councils to conduct a joint meeting of Councils. Joint meetings constitutes a meeting of each participating Council.
The procedures for conducting a joint meeting are to be determined by the Councils holding the joint meeting.
The purpose of this clause is to facilitate cooperation between Councils in support of the overarching governance principle in clause 9 regarding collaboration with other Councils.
Clause 61 provides for a Council to appoint delegated committees to which a Council may delegate powers, duties or functions under clause 11.
Subclause (2) requires a delegated committee to contain at least 2 Councillors and to be chaired by a Councillor. A delegated committee may include people who are not Councillors.
Subclause (3) provides for the voting procedures for Council meetings, in clause 59, to apply to delegated committee unless varied by the Council's Governance Rules.
Clause 62 provides for a Council to appoint a Community Asset Committee for the purpose of managing a community asset, such as a hall, sports facility or reserve. A Community Asset Committee must not be established for any other purpose.
Once established, a Community Asset Committee receives its delegated authorities from the CEO, under clause 46, and reports to the CEO.
Clause 63 requires Council meetings and delegated committee meetings to be open to the public except in specific circumstances.
Subclauses (2), (3) and (4) describe the circumstances when a meeting may be closed to the public. These are—
-
when the meeting is to consider confidential information; or
-
when it is necessary to close the meeting for security reasons or to enable the orderly conduct of the meeting.
Confidential information is defined in clause 3 of the Bill. A meeting can only be closed to the public on confidentiality grounds when the meeting will consider one or more of the specific types of information in the definition. The definition of confidential information intends to include information that, if publicly released at the time, is likely to be inappropriately detrimental to the Council or any person.
A meeting may only be closed to the public for reasons of security or orderly conduct if arrangements have been made by the Council for the meeting to be viewed by members of the public as it is being held. This includes on the Internet or by closed circuit television. The purpose of this condition is to ensure the public transparency of decision-making.
Subclause (5) requires Council or delegated committee meetings that has been closed to consider confidential information to record the grounds for determining that the information is confidential information and why those grounds apply in publicly available minutes.
Clause 64 makes provision for occasions where a Council cannot maintain a quorum because of the number of Councillors who have conflicts of interest. The purpose of this provision is to enable Council decisions to be made while still complying with the conflict of interest requirements in Division 2 of Part 7.
Subclauses (2) and (3) require the Council, as a first step, to consider whether the decision can be dealt with in an alternative manner—
-
by dealing with the matter in separate parts; or
-
by making decisions on component parts in which conflicts arise, before the overall decision is voted upon.
Subclauses (4) and (5) provide that if a Council cannot deal with the matter in one of the alternative manners it must establish a delegated committee to make the decision. Such a committee must include all Councillors who do not have conflicts of interest and be composed in accordance with clause 61(2) after excluding councillors with a conflict.
Clause 65 provides that the proceedings of a Council or delegated committee are not invalidated by any of the circumstances listed in this clause. This does not prevent a decision being found invalid for another reason.
Clause 66 requires the Governance Rules made under clause 58 to include an election period policy dealing with decisions occurring during the election period. The purpose of this provision is to prevent the making of major decisions that would inappropriately bind an incoming Council or use Council resources to influence the election.
The election period is defined in clause 3 to be from the time when nominations close until 6:00 pm election day.
Subclauses (2), (4) and (5) provide that an election period policy must prohibit certain decisions being made during the election period for a general election. This specifically includes the following decisions, which are invalid if made contrary to this clause—
-
decisions relating to the employment or remuneration of a CEO; and
-
decisions committing to expenditure exceeding
1 per cent of the Council's rates and charges in the preceding year.
Subclause (3) prohibits decisions during the election period for any election that would enable Council resources to be used in a way that is intended or likely to influence voting.
Clause 67 prohibits Council policies that allocate funds to enable an individual Councillor to nominate to whom or where those funds will be allocated. This is intended to prevent Councillors from being able to direct the allocation of funds outside normal, transparent decision-making processes.
Division 3—Local laws
Clause 68 enables Councils to make local laws to give effect to a function or power of the Council under this Bill or any other Act.
Subclause (2) provides that a local law must be consistent with the local law requirements in clause 69.
Subclause (3) provides that a local law is inoperative to the extent that it is inconsistent with the local law requirements.
Subclause (4) provides that a local law is a subordinate instrument under the Interpretation of Legislation Act 1984. However, local laws are not legislative instruments under the Subordinate Legislation Act 1994 and do not a require a regulatory impact statement.
Subclause (5) provides that a local law is not invalid due to an error in the notice published under clauses 70 or 71.
Subclause (6) provides for a local law made under the Local Government Act 1989 to continue in force despite the repeal of powers provided under that Act.
Subclause (7) provides that the section of the Sentencing Act 1991 dealing with penalty units continues to apply to local laws made under the Local Government Act 1989, as if it were not amended by item 92 of Schedule 2 of the Bill.
Clause 69 sets out the local law requirements.
Clause 70 sets out the procedure Councils must follow when making a local law. This requires a Council to notify its community of a proposed local law and consult in accordance with the Council's community engagement policy.
Subclauses (2) to (5) requires Councils to publish a notice informing the community of a proposal to make a new local law and provide access to the proposed local law.
Subclause (6) introduces a requirement for Councils to further consult if amendments are made to a proposed local law that affects a person's rights or responsibilities.
Subclauses (7) to (9) require Councils to table a certificate from an experienced lawyer stating that the proposed local law is consistent with the local requirements in clause 69 prior to making a local law.
Subclauses (10) to (12) require Councils to publish a notice in the Government Gazette (and in any other prescribed manner) informing the community that a local law has been made and provide access to the local law.
Clause 71 enables Councils to apply, adopt or incorporate other documents into a local law by reference.
If a document incorporated by reference is amended, that amendment has no effect until notice of that amendment is published on the Council's internet site.
Clause 72 subclause (1) sets out what a local law may prescribe.
Subclause (2) enables a local law to prescribe specific fees, fee parameters or scalable fees as well as the payment of fees and the reduction, waiver or refund of fees.
Subclause (3) enables local laws that provide for a reduction, waiver or refund to be expressed to apply subject to conditions or in respect to certain matters, documents, events or people.
Clause 73 enables a local law to confer discretionary authority, duties and other matters to be determined later by the Council or confer certain powers to the CEO.
Clause 74 enables a local law to prescribe penalties for a contravention of a local law. A local law can prescribe additional penalties for each day the contravention continues and for subsequent offences.
The penalty units prescribed for a contravention cannot exceed 20 penalty units. Through consequential amendments to the Sentencing Act 1991 under item 92 of Schedule 1, the dollar amount of each of these penalty units will no longer be fixed at one hundred dollars. Each penalty unit will have the dollar amount fixed by the Treasurer each year under the Monetary Units Act 2004.
Subclause (2) provides that where no penalty unit is prescribed, a court may impose a penalty for a contravention of a local law of no more than 10 penalty units.
Clause 75 enables a local law to apply to certain times, places or cases.
Clause 76 provides for the issuing of infringement notices through a local law as an alternative to prosecution.
Clause 77 requires amounts recovered for an offence against a local law to be paid to the Council.
Clause 78 subclause (1) provides that local laws come into effect either on the beginning of the day specified in the local law or if no date is specified, the beginning of the day the local law is made.
Subclause (2) provides that a person cannot be convicted of an offence against a local law or prejudicially affected or subject to any liability under a local law if at the time the council had not yet published a public notice advising of the local law or any item incorporated by reference and made these publicly available.
Clause 79 sunsets local laws after 10 years of operation.
Clause 80 enables the Governor in Council, on the recommendation of the Minister, to revoke all or part of a local law. This power can be exercised if a local law is not considered to be consistent with the local law requirements.
Clause 81 enables the legality of a local law to be disputed and an order sought for a local law to be quashed, either wholly or in part, under the Supreme Court Act 1986 as though the local law was a by-law under that Act.
Division 4—Good practice guidelines
Clause 82 enables the Minister to issue good practice guidelines for or with respect to any matter under this Bill or under the regulations.
Subclause (2) provides that the good practice guidelines issued under subclause (1) must be published on the Department of Environment, Land, Water and Planning's Internet site.
Subclause (3) provides that a Council may use compliance with a good practice guideline as evidence that it has complied with the corresponding requirement in this Bill or in the regulations. This is intended to enable a Council to elect to either develop its policies and processes in line with the relevant good practice guideline or develop its own innovative policies and processes to suit the specific needs of its community.
Part 4—Planning and financial management
Division 1—Strategic planning
Clause 83 requires Councils to develop a Community Vision with their municipal community.
Subclause (2) provides that the scope of the Community Vision is at least the next 10 years.
Subclause (3) provides that the Community Vision must describe the community's aspirations for the future of the municipality. This is intended to include community priorities for the municipality and may cut across Federal, State and local government responsibilities.
Clause 84 subclause (1) provides that the preparation of the Council Plan and other strategic plans must be in accordance with the strategic planning principles in Subclause (2).
Subclause (2) provides the strategic planning principles. These are intended to ensure that the strategic planning documents Councils must prepare, including the Council Plan, the Financial Plan, the Asset Plan, the Revenue and Rating Plan and the Budget, are integrated and reflect the Community Vision.
Clause 85 requires Councils to prepare and adopt a Council Plan. This must be complete by 30 June in the year after a general election and must be for a period of at least the next 4 years.
Subclause (2) sets out the matters that must be included in the Council Plan, which includes the strategic vision of the Council, the strategic objectives for achieving the strategic vision and strategies for achieving the objectives, strategic indicators for monitoring the achievement of the objectives and a description of the Council's initiatives and priorities for services, infrastructure and amenities.
Clause 86 requires Councils to develop, adopt and keep in force a Financial Plan.
Subclause (2) provides that the scope of the Financial Plan is at least the next 10 years. This is intended to be a rolling plan that is updated and adjusted annually.
Subclause (3) provides what must be included in the Financial Plan. This is intended to ensure that the Financial Plan sets out the resources committed in the Council Plan and any other plan of the Council.
Clause 87 subclause (1) requires Councils to develop, adopt and keep in force an Asset Plan.
Subclause (2) provides that the scope of the Asset Plan is at least the next 10 years. This is intended to be a rolling plan that is updated and adjusted annually.
Subclause (3) sets out the information that must be included in the Asset Plan, which includes information regarding maintenance, renewal, new acquisition, expansion, upgrade or decommissioning for each class of infrastructure assets.
Clause 88 requires Councils to prepare and adopt a Revenue and Rating Plan. This must be completed by 30 June in the year after a general election and is for the next 4 years.
Dostları ilə paylaş: | 
