An Act to provide for a system of local government in Western Australia, to amend the Local Government Act 1960 2 and for related purposes.
Part 1 — Introductory matters
This Part deals with some matters that are relevant to the Act generally.
(a) section 1.2 provides for the commencement of the Act; and
(b) section 1.3 summarizes the main content of the Act and what it intends to achieve; and
(c) section 1.5 explains the legal status of italicized notes such as this; and
(d) section 1.6 states the position of the Crown; and
(e) other provisions define some terms and concepts used in the Act.
1.1. Short title
This Act may be cited as the Local Government Act 1995.
1.2. Commencement
This Act comes into operation on 1 July 1996.
1.3. Content and intent
(1) This Act provides for a system of local government by —
(a) providing for the constitution of elected local governments in the State; and
(b) describing the functions of local governments; and
(c) providing for the conduct of elections and other polls; and
(d) providing a framework for the administration and financial management of local governments and for the scrutiny of their affairs.
(2) This Act is intended to result in —
(a) better decision‑making by local governments; and
(b) greater community participation in the decisions and affairs of local governments; and
(c) greater accountability of local governments to their communities; and
(d) more efficient and effective local government.
[Section 1.3 amended: No. 49 of 2004 s. 15; No. 22 of 2023 s. 4.]
1.4. Terms used
In this Act, unless the contrary intention appears —
absolute majority —
(a) in relation to a council, means a majority comprising enough of the members for the time being of the council for their number to be more than 50% of the number of offices (whether vacant or not) of member of the council;
(b) in relation to any other body, means a majority comprising enough of the persons for the time being constituting the body for their number to be more than 50% of the number of offices (whether vacant or not) on the body;
adjudicator means the Principal Adjudicator or a Deputy Adjudicator;
Advisory Board means the Local Government Advisory Board established by section 2.44;
auditor means the Auditor General;
authorised officer has the meaning given in section 8B.42;
behavioural breach has the meaning given in section 8A.2(2);
caretaker period has the meaning given in section 1.4A(1);
CEO means the chief executive officer of a local government;
commissioner means a commissioner appointed to a local government under sections 2.6(4), 2.36A(3), 2.37(4), 2.37A(1), 8.30 or 8.33;
conduct breach has the meaning given in section 8A.3;
council means the council of a local government;
councillor means a person who holds the office of councillor on a council (including a person who holds another office under section 2.17(2) or 2.17A(2) or (3) as well as the office of councillor);
councillor mayor or president means a mayor or president elected by the council from amongst the councillors;
Crown lands means lands of the Crown —
(a) not granted or contracted to be granted in fee simple; or
(b) not held or occupied —
(i) under conditional terms of purchase; or
(ii) with a right to acquire the fee simple;
Crown lease means a lease from the Crown of Crown lands, or a licence or concession from the Crown for taking a profit of Crown lands, but does not include —
(a) an instrument executed or issued pursuant to a contract or arrangement with the Crown by virtue of which land is held or occupied with a right, whether subject to compliance with conditions or otherwise, to acquire the fee simple; and
(b) a lease under the Housing Act 1980; and
(c) an instrument by virtue of which lands are held or occupied subject to the payment of a peppercorn or nominal rental;
Crown lessee means a person entitled under a Crown lease to an interest or a right in or over Crown lands;
Department means the department of the Public Service assisting the Minister to administer this Act;
Departmental CEO means the chief executive officer of the Department;
Deputy Adjudicator means a person appointed as a Deputy Adjudicator under section 8B.19(2);
district means an area of the State that is declared to be a district under section 2.1;
election year means a year in which ordinary elections for local governments are required to be held;
elector, in relation to a district or ward, means a person who is eligible to be enrolled to vote at elections for the district or ward;
elector mayor or president means a mayor or president elected by electors of a district (including a person who is elected to an office of elector mayor or president under Schedule 4.1A);
Electoral Commissioner means the Electoral Commissioner appointed under the Electoral Act 1907;
electoral requirements has the meaning given by section 4.1;
employee means a person employed by a local government under section 5.36;
extraordinary election has the meaning given by section 4.8;
financial year means the period commencing on 1 July and ending on the next following 30 June;
inaugural election has the meaning given by section 4.2;
Independent Inquiry means an Independent Inquiry constituted under section 8.16;
Inspector means the person holding the office of Local Government Inspector established by section 8B.1;
inspectorate officer means —
(a) a public service officer appointed for the purposes of section 8B.32(1); or
(b) a public service officer referred to in section 8B.32(2);
Inspector’s website means a website maintained by, or on behalf of, the Inspector;
investigator means a person designated as an investigator under section 8B.33;
local government means a local government established under this Act;
local government property means anything, whether land or not, that belongs to, or is vested in, or under the care, control or management of, the local government;
local public notice has the meaning given by section 1.7;
member, in relation to the council of a local government, means —
(a) an elector mayor or president of the local government; or
(b) a councillor on the council (including a councillor who holds another office under section 2.17(2) or 2.17A(2) or (3) as well as the office of councillor);
metropolitan area has the same definition as metropolitan region in the Planning and Development Act 2005;
monitor means a person appointed as a monitor for a local government under section 8B.37;
municipal fund means the municipal fund established under section 6.6;
occupier where used in relation to land means the person by whom or on whose behalf the land is actually occupied or, if there is no occupier, the person entitled to possession of the land, and includes a person in unauthorised occupation of Crown land and where under a licence or concession there is a right to take profit of Crown land specified in the licence or concession, means the person having that right;
ordinary election has the meaning given by section 4.4;
ordinary elections day in relation to a local government, means a day fixed by section 4.6 or under section 4.7(2) for holding the polls for ordinary elections for that local government (whether or not any polls are actually held);
owner, where used in relation to land —
(a) means a person who is in possession as —
(i) the holder of an estate of freehold in possession in the land, including an estate or interest under a contract or an arrangement with the Crown or a person, by virtue of which contract or arrangement the land is held or occupied with a right to acquire by purchase or otherwise the fee simple; or
(ia) the owner of a lot in a leasehold scheme as defined in the Strata Titles Act 1985 section 3(1); and
(ii) a Crown lessee or a lessee or tenant under a lease or tenancy agreement of the land which in the hands of the lessor is not rateable land under this Act, but which in the hands of the lessee or tenant is by reason of the lease or tenancy rateable land under this or another Act for the purposes of this Act; or
(iii) a mortgagee of the land; or
(iv) a trustee, executor, administrator, attorney, or agent of a holder, lessee, tenant, or mortgagee, mentioned in this paragraph;
or
(b) where there is not a person in possession, means the person who is entitled to possession of the land in any of the capacities mentioned in paragraph (a), except that of mortgagee; or
(c) where, under a licence or concession there is a right to take profit of Crown land specified in the licence or concession, means the person having that right; or
(d) where a person is lawfully entitled to occupy land which is vested in the Crown, and which has no other owner according to paragraph (a), (b), or (c), means the person so entitled; or
(e) means a person who —
(i) under the Mining Act 1978, holds in respect of the land a mining tenement within the meaning given to that expression by that Act; or
(ii) in accordance with the Mining Act 1978 holds, occupies, uses, or enjoys in respect of the land a mining tenement within the meaning given to that expression by the Mining Act 1904 3; or
(iii) under the Petroleum and Geothermal Energy Resources Act 1967 holds in respect of the land a permit, drilling reservation, lease or licence within the meaning given to each of those expressions by that Act;
or
(f) where a person is in the unauthorised occupation of Crown land, means the person so in occupation;
prescribed means prescribed by regulations;
Principal Adjudicator means the person appointed as the Principal Adjudicator under section 8B.19(1);
recurrent breach has the meaning given in section 8A.3(4);
regional local government means a regional local government established under section 3.61;
regional subsidiary means a regional subsidiary established under section 3.69;
senior employee means a senior employee under section 5.37;
specified breach has the meaning given in section 8A.4;
Statewide public notice has the meaning given by section 1.8;
thoroughfare means a road or other thoroughfare and includes structures or other things appurtenant to the thoroughfare that are within its limits, and nothing is prevented from being a thoroughfare only because it is not open at each end;
WALGA means the Western Australian Local Government Association constituted under section 9.58;
ward means one of the wards into which a district is divided under section 2.2.
[Section 1.4 amended: No. 1 of 1998 s. 4 and 6(2); No. 64 of 1998 s. 4(2); No. 49 of 2004 s. 11 and 16(1); No. 38 of 2005 s. 15; No. 28 of 2006 s. 361; No. 35 of 2007 s. 99(2); No. 26 of 2016 s. 4; No. 5 of 2017 s. 4; No. 16 of 2019 s. 4; No. 30 of 2018 s. 157; No. 11 of 2023 s. 5; No. 47 of 2024 s. 4.]
1.4A. Caretaker period
(1) In this Act —
caretaker period, in relation to a local government, means a period that —
(a) begins at the close of nominations (as defined in section 4.49(a)) for a relevant election for the local government; and
(b) ends —
(i) on the day after the day on which the returning officer declares the result of the relevant election under section 4.77; or
(ii) if section 4.57(1) applies to the relevant election — on the day after the day on which the close of nominations falls; or
(iii) if section 4.58(1) applies to the relevant election — on the day after the day on which the candidate dies.
relevant election means any of the following —
(a) an ordinary election;
(b) an inaugural election;
(c) an election under section 4.11, 4.12, 4.13 or 4.14;
(d) an election under section 4.15 after an election that is a relevant election under paragraph (a), (b) or (c) or this paragraph is declared invalid.
[Section 1.4A inserted: No. 11 of 2023 s. 6.]
1.5. Descriptions in italics not part of the law
A description that is printed in italics at the beginning of a Part of this Act explaining what it is about is not part of the Act.
1.6. Crown not generally bound
This Act does not bind the Crown except to the extent expressly stated in this Act.
1.7. Local public notice
Where under this Act local public notice of a matter is required to be given, notice of the matter must be —
(a) published on the official website of the local government concerned in accordance with the regulations; and
(b) given in at least 3 of the ways prescribed for the purposes of this section.
[Section 1.7 inserted: No. 16 of 2019 s. 5.]
1.8. Statewide public notice
Where under this Act Statewide public notice of a matter is required to be given, notice of the matter must be given in accordance with section 1.7(a) and (b) and the requirements prescribed for the purposes of this section.
[Section 1.8 inserted: No. 16 of 2019 s. 5.]
1.9. Decisions by absolute majority
The footnote Absolute majority required, applying to a power conferred in this Act, means that —
(a) if the power is conferred on a local government, it can only be exercised by or in accordance with, a decision of an absolute majority of the council; or
(b) if the power is conferred on any other body, it can only be exercised by or in accordance with, a decision of an absolute majority of that body.
[1.10. Deleted: No. 16 of 2019 s. 6.]
Part 2 — Constitution of local government
This Part deals with the constitutional framework of the system of elected local government in this State maintained as required by Part IIIB of the Constitution Act 1889.
In particular it deals with —
(a) the division of the State into districts and wards for local government purposes; and
(b) the creation of local governments; and
(c) the creation and membership of elected councils; and
(d) the qualifications of members of councils; and
(e) the terms of office of members of councils and how their offices may become vacant; and
(f) commissioners of local governments.
Division 1 — Districts and wards
2.1. State divided into districts
(1) The Governor, on the recommendation of the Minister, may make an order —
(a) declaring an area of the State to be a district; or
(b) changing the boundaries of a district; or
(c) abolishing a district; or
(d) as to a combination of any of those matters.
(2) Schedule 2.1 (which deals with creating, changing the boundaries of, and abolishing districts) has effect.
(3) The Minister can only make a recommendation under subsection (1) if the Advisory Board has recommended under Schedule 2.1 that the order in question should be made.
2.2. Districts may be divided into wards
(1) The Governor, on the recommendation of the Minister, may make an order —
(a) dividing a district into wards; or
(b) creating new wards in a district that is already divided into wards; or
(c) changing the boundaries of a ward; or
(d) abolishing any or all of the wards into which a district is divided; or
(e) as to a combination of any of those matters.
(2) For the purposes of this Act —
(a) an order that divides a district into wards is to be regarded as establishing a ward system for the district; and
(b) an order that abolishes all of the wards into which a district is divided and does not create new wards, is to be regarded as discontinuing the ward system for the district.
(3) Schedule 2.2 (which deals with wards and representation) has effect.
(4) The Minister can only make a recommendation under subsection (1) if the Advisory Board has recommended under Schedule 2.2 that the order in question should be made.
(5) An order cannot be made under subsection (1) in relation to a district which, under regulations made for the purposes of section 2.2A(1)(a), cannot be divided into wards.
[Section 2.2 amended: No. 11 of 2023 s. 7.]
2.2A. Regulations may provide that district cannot be divided into wards
(1) Regulations may —
(a) provide that a district cannot be divided into wards; and
(b) if the district is divided into wards — abolish all of the wards.
(2) If regulations are made for the purposes of subsection (1)(b) —
(a) the abolition of the wards does not of itself cause a change in the number of offices of councillor on the council; and
(b) regulations may give directions to the effect that, in advance of the abolition of the wards taking effect, Part 4 applies for the purpose of preparing for, and conducting, an election as if the abolition had already taken effect; and
(c) the operation of Part 4 is modified to the extent necessary to give effect to any directions given for the purposes of paragraph (b); and
(d) regulations may give other directions, including directions modifying the operation of this Act, for the purpose of giving effect to the abolition of the wards.
[Section 2.2A inserted: No. 11 of 2023 s. 8.]
2.3. Names of districts and wards
(1) An order under section 2.1 designating an area of the State to be a district is to include an order naming the district.
(2) An order under section 2.2 establishing a ward system for a district is to include an order naming the wards.
(3) If a local government proposes under Schedule 2.2 that an order be made changing the name of the district or a ward, the Minister may recommend to the Governor that the order be made, and the Governor may make the order accordingly.
(4) The Minister can only make a recommendation under subsection (3) if the Advisory Board has recommended under Schedule 2.2 that the order in question should be made.
2.4. District to be designated city, town or shire
(1) An order under section 2.1 declaring an area of the State to be a district is to include an order designating the district a city, town or shire.
(2) The Governor may, by order, change the designation of a district.
(3) A district can only be designated a city if —
(a) the district is in the metropolitan area and has more than 30 000 inhabitants more than half of whom live in an urban area; or
(b) the district, if it is not in the metropolitan area, has more than 20 000 inhabitants more than half of whom live in an urban area.
(4) A district can only be designated a town if more than half of its inhabitants live in an urban area.
(5) A district that is not designated a city or a town is to be designated a shire.
(6) The number of inhabitants of a district at a particular time is to be taken as that established by the Government Statistician appointed under the Statistics Act 1907 according to the information then available to that person.
(7) Despite any change in the number or distribution of a district’s inhabitants, the designation of the district continues to apply until it is changed under this section.
Division 2 — Local governments and councils of local governments
2.5. Local governments created as bodies corporate
(1) When an area of the State becomes a district, a local government is established for the district.
(2) The local government is a body corporate with perpetual succession and a common seal.
(3) The local government has the legal capacity of a natural person.
(4) The corporate name of the local government is the combination of the district’s designation and name.
Example:
City of (name of district)
(5) If the district’s name incorporates its designation, the designation is not repeated in the corporate name of the local government.
Example:
district’s name : Albany (Town)
corporate name : Town of Albany
(6) Proceedings may be taken by or against the local government in its corporate name.
2.6. Local governments to be run by elected councils
(1) Each local government is to have an elected council as its governing body.
(2) The offices on the council of the local government of a city or town are those of the mayor, the deputy mayor and the councillors.
(3) The offices on the council of the local government of a shire are those of the president, the deputy president and the councillors.
(4) The Governor may, by order, appoint a person to be the commissioner of a local government until the offices of members of the council are filled for the first time and the council holds its first meeting.
2.7. Role of council
(1) The council governs the local government’s affairs and, as the local government’s governing body, is responsible for the performance of the local government’s functions.
(2) The council’s governing role includes the following —
(a) overseeing the allocation of the local government’s finances and resources;
(b) determining the local government’s policies;
(c) planning strategically for the future of the district;
(d) determining the services and facilities to be provided by the local government in the district;
(e) selecting the CEO and reviewing the CEO’s performance;
(f) providing strategic direction to the CEO.
(3) For the purpose of ensuring proper governance of the local government’s affairs, the council must have regard to the following principles —
(a) the council’s governing role is separate from the CEO’s executive role as described in section 5.41;
(b) it is important that the council respects that separation.
(4) The council must make its decisions —
(a) on the basis of evidence, on the merits and in accordance with the law; and
(b) taking into account the local government’s finances and resources.
(5) The council must have regard to the need to support an organisational culture for the local government that promotes the respectful and fair treatment of the local government’s employees.
(6) The council has the other functions given to it under this Act or any other written law.
[Section 2.7 inserted: No. 47 of 2024 s. 5.]
2.8. Role of mayor or president
(1) The mayor or president —
(a) provides leadership and guidance to the council and council members, including guidance as to the roles of the council and council members; and
(b) acts as the principal spokesperson for the local government, and carries out civic and ceremonial duties on behalf of the local government, at all times acting consistently with council decisions; and
(c) presides at meetings of the council, ensuring that meetings are orderly and held in accordance with this Act; and
(d) promotes, facilitates and supports positive and constructive working relationships among council members; and
(e) liaises with the CEO on the local government’s affairs and the performance of its functions.
The role of the mayor or president as described in this subsection can be affected by other provisions of this Act or by another written law. For example, section 5.67 prohibits the mayor or president from presiding at a meeting of the council in the circumstances described in that section.
(1A) The mayor or president has the other functions given to the mayor or president under this Act or any other written law.
(2) Section 2.10 applies to a councillor who is also the mayor or president and extends to a mayor or president who is not a councillor.
[Section 2.8 amended: No. 47 of 2024 s. 6.]
2.9. Role of deputy mayor or deputy president
The deputy mayor or deputy president performs the functions of the mayor or president when authorised to do so under section 5.34.
2.10. Role of councillors
(1) A councillor —
(a) represents the interests of the electors, ratepayers and residents of the district and takes account of the interests of other persons who work in, or visit, the district; and
(b) participates in the deliberation and decision‑making of the local government at council and committee meetings; and
(c) facilitates communication with the community about council decisions; and
(d) facilitates and maintains good working relationships with other councillors, the mayor or president and the CEO; and
(e) acts consistently with section 2.7(3) to (5); and
(f) maintains and develops the requisite skills to effectively perform their role.
The role of a councillor as described in this subsection can be affected by other provisions of this Act or by another written law. For example, section 5.67 prohibits a councillor from participating in a meeting of the council or a committee in the circumstances described in that section.
(2) A councillor has the other functions given to the councillor under this Act or any other written law.
[Section 2.10 inserted: No. 47 of 2024 s. 7.]
Division 3 — How offices on the council are filled
2.11. Alternative methods of filling office of mayor or president
(1) When an order is made under section 2.1 declaring an area of the State to be a district, the Governor is, by order, to specify whether the first mayor or president of the local government is to be —
(a) elected by electors of the district under Part 4; or
(b) elected by the council from amongst the councillors under Schedule 2.3, Division 1.
(2) A local government may change* the method of filling the office of mayor or president used by the local government from the election by the council method to the election by the electors method.
(3) A local government may exercise the power conferred by subsection (2) whether or not a proposal has been made under section 2.12.
(4) The method of filling the office of mayor or president used by a local government is changed from the election by the electors method to the election by the council method if the result of a poll declared under section 2.12A(4) is that a majority of electors of the district who voted at the poll voted in favour of the change.
(5) This section and sections 2.12 and 2.12A are subject to any regulations made for the purposes of section 2.12B.
[Section 2.11 amended: No. 49 of 2004 s. 17(1) and (2); No. 16 of 2019 s. 7; No. 11 of 2023 s. 9.]
2.12. Electors may propose change of method
(1) A proposal to change the method of filling the office of mayor or president used by a local government to the other method mentioned in section 2.11(1)(a) or (b) may be made to the local government by electors of the district who —
(a) are at least 250 in number; or
(b) are at least 10% of the total number of electors of the district.
(2) The proposal is to comply with any regulations about such proposals.
(3) If the proposal is to change the method of filling the office of mayor or president from the election by the council method to the election by the electors method, consideration is to be given to the proposal by such means as the council thinks fit after which a motion to change the method of filling the office of mayor or president is to be put to the council for decision under section 2.11(2).
[Section 2.12 amended: No. 49 of 2004 s. 17(3).]
2.12A. Procedure to change method to election by council
(1) If —
(a) electors of the district, acting under section 2.12(1), propose; or
(b) the council, by motion passed by it, proposes,
to change the method of filling the office of mayor or president of the local government from the election by the electors method to the election by the council method, the local government is to —
(c) give local public notice of the proposal stating that submissions about the proposal may be made to the local government before a day to be specified in the notice, being a day that is not less than 6 weeks after the notice is given; and
(d) consider or reconsider the proposal in view of any submissions received.
(2) Subject to section 2.13(3), if the local government decides to proceed with the proposal, there is to be a poll of the electors of the district on the proposal and —
(a) the Advisory Board is to —
(i) determine the question to be voted on by the electors of the district; and
(ii) prepare a summary of the case for each way of voting on the question;
and
(b) the Electoral Commissioner is to —
(i) make the summary available to the electors before the poll is conducted; and
(ii) be responsible for the conduct of the poll; and
(iii) appoint a person to be the returning officer of the local government for the poll;
and
(c) the local government is to meet the expenses of the Electoral Commissioner in connection with the poll to the extent required by regulations.
(3) The returning officer is to conduct the poll for and under the direction of the Electoral Commissioner.
(4) As soon as is practicable after the result of the poll is known the returning officer is to declare and give notice of the result in accordance with regulations.
(5) A poll referred to in this section is not to be held more than once in every 4 years in a district, even if a proposal has been made by the electors under section 2.12.
[Section 2.12A inserted: No. 49 of 2004 s. 17(4).]
2.12B. Regulations may require local government to use election by electors method
(1) Regulations may —
(a) provide that the method of filling the office of mayor or president used by a local government —
(i) must be the election by the electors method; and
(ii) cannot be changed to the election by the council method;
and
(b) if the method of filling the office of mayor or president used by the local government is the election by the council method — change the method to the election by the electors method.
(2) If regulations are made for the purposes of subsection (1)(b) —
(a) regulations must, for the purposes of section 2.13(4)(a), provide for the change to have effect in relation to the filling of the office of mayor or president —
(i) at the next ordinary elections for the local government that are held after a day provided for in regulations for the purposes of this subparagraph; or
(ii) subject to subsection (3), at another time that coincides with the holding of a different type of election for the local government;
and
(b) regulations may give directions, including directions modifying the operation of this Act, for the purpose of giving effect to the change.
(3) Provision can be made as referred to in subsection (2)(a)(ii) only if the Minister is satisfied that the provision is appropriate because of particular circumstances.
The offices of members of the council have been declared vacant under section 2.37 and the next election for the local government will be an election under section 4.13.
The council has been dismissed under section 8.25(1) and the next election for the local government will be an election under section 4.14.
[Section 2.12B inserted: No. 11 of 2023 s. 10.]
2.13. When new method takes effect
(1) A decision under section 2.11(2) to change to the election by electors method has effect in relation to the filling of the office of mayor or president at the next ordinary elections of the local government held after the decision is made and from then on until a change under section 2.11(4) to the election by the council method takes effect.
(2) A change under section 2.11(4) to the election by the council method has effect in relation to the filling of the office of mayor or president at the first meeting of the council after the ordinary elections of the local government in the year in which the term of office of the incumbent mayor or president ends and from then on until a decision under section 2.11(2) to change to the election by electors method takes effect.
(3) A decision under section 2.11(2) has no effect if it is made during, and a decision under section 2.12A(2) has no effect unless a poll resulting from it is held before, the period beginning on the 80th day before, and ending on, the ordinary election day in the year in which the term of office of the incumbent mayor or president ends.
(4) A change made by regulations to the election by the electors method under section 2.12B(1)(b) has effect —
(a) in accordance with regulations made as referred to in section 2.12B(2)(a); and
(b) from then on, subject to subsection (5).
(5) If a local government ceases to be subject to regulations made for the purposes of section 2.12B(1)(a), the election by the electors method must nevertheless be used for filling the office of mayor or president until a change under section 2.11(4) to the election by the council method takes effect.
[Section 2.13 amended: No. 64 of 1998 s. 19(2); No. 49 of 2004 s. 17(5)‑(7); No. 11 of 2023 s. 11.]
2.14. Extension of term in certain cases
If the method of filling the office of mayor or president of a local government is changed from election by electors to election by the council then, despite the Table to section 2.28, an elector mayor or president may continue to hold that office after the end of their term until a mayor or president is elected by the council.
[Section 2.14 amended: No. 11 of 2023 s. 12; No. 47 of 2024 s. 160.]
2.15. Filling office of deputy mayor or deputy president
The deputy mayor or deputy president is to be elected by the council under Schedule 2.3, Division 2.
[Section 2.15 amended: No. 49 of 2004 s. 18.]
2.16. Filling offices of councillors
(1) If a district is not divided into wards the councillors are to be elected by electors of the district under Part 4.
(2) If a district is divided into wards the councillors for a ward are to be elected by electors of that ward under Part 4.
Division 4 — Membership and size of the council
Subdivision 1 — Preliminary
[Heading inserted: No. 11 of 2023 s. 13.]
2.16A. Terms used
election has the meaning given in section 4.1;
election day, in relation to a local government, means a day fixed under this Act for the holding of any poll needed for an election for the local government (whether or not any poll is actually held);
ordinary election day, in relation to a local government, means a day fixed under this Act for the holding of any polls needed for ordinary elections for the local government (whether or not any polls are actually held);
population, in relation to a district, means the total number of people who reside permanently in the district, subject to section 2.16B.
[Section 2.16A inserted: No. 11 of 2023 s. 13.]
2.16B. Population estimates
(1) The Governor may, on the recommendation of the Minister, by order —
(a) specify an estimate of a district’s population; and
(b) provide that the specified estimate is taken to be the district’s population for the purposes of sections 2.17 and 2.17A.
(2) The order must provide for the provision made under subsection (1)(b) to have effect —
(a) on and from an ordinary election day for the local government; or
(b) subject to subsection (3), on and from an election day for the local government that is not an ordinary election day.
(3) Provision can be made under subsection (2)(b) only if the Minister is satisfied that the provision is appropriate because of particular circumstances.
The offices of members of the council have been declared vacant under section 2.37 and the next election for the local government will be an election under section 4.13.
The council has been dismissed under section 8.25(1) and the next election for the local government will be an election under section 4.14.
(4) Before making a recommendation under subsection (1), the Minister must consult the Government Statistician.
(5) An estimate of a district’s population recommended under subsection (1) must be either —
(a) an estimate —
(i) that has been published under the Statistics Act 1907 section 14; or
(ii) that has been approved by the Government Statistician in the course of the consultation under subsection (4);
or
(b) an estimate that, in the Minister’s opinion, is substantially derived from statistics or other information —
(i) that has been published under the Statistics Act 1907 section 14; or
(ii) that has been approved by the Government Statistician in the course of the consultation under subsection (4).
(6) The Minister must, in consultation with the Government Statistician, review an estimate specified in an order under this section at intervals of no more than 5 years with a view to deciding whether the estimate should be replaced.
(7) The Government Statistician must provide the Minister with any assistance requested in the course of a consultation under subsection (4) or (6).
(8) In subsections (4) to (7) —
Government Statistician means the Government Statistician appointed under the Statistics Act 1907.
(9) The Interpretation Act 1984 section 42 applies to an order made under this section as if the order were regulations made under this Act.
[Section 2.16B inserted: No. 11 of 2023 s. 13.]
Subdivision 2 — Membership and size
[Heading inserted: No. 11 of 2023 s. 13.]
2.17. Members of council where mayor or president elected by electors
(1) If the method of filling the office of mayor or president is election by electors, the council is to consist of —
(a) the mayor or president; and
(b) a number of councillors that is —
(i) not less than the minimum number of councillors under subsection (3); but
(ii) not more than the maximum number of councillors under subsection (4).
Note for this paragraph:
For the council of the City of Perth, the number of councillors is 8 — see the City of Perth Act 2016 section 9.
(2) One of the councillors is to hold the office of deputy mayor or deputy president in conjunction with their office as a councillor.
(3) For the purposes of subsection (1)(b)(i), the minimum number of councillors is as follows —
(a) if the district’s population is not more than 75 000 — 4 councillors;
(b) otherwise — 8 councillors.
(4) For the purposes of subsection (1)(b)(ii), the maximum number of councillors is as follows —
(a) if the district’s population is not more than 5 000 — 6 councillors;
(b) if the district’s population is more than 5 000 but not more than 75 000 — 8 councillors;
(c) otherwise — 14 councillors.
(5) This section is subject to section 2.18A(5).
[Section 2.17 inserted: No. 11 of 2023 s. 13.]
2.17A. Members of council where mayor or president elected by council
(1) If the method of filling the office of mayor or president is election by the council, the council is to consist of a number of councillors that is —
(a) not less than the minimum number of councillors under subsection (4); but
(b) not more than the maximum number of councillors under subsection (5).
(2) One of the councillors is to hold the office of mayor or president in conjunction with their office as a councillor.
(3) Another of the councillors is to hold the office of deputy mayor or deputy president in conjunction with their office as a councillor.
(4) For the purposes of subsection (1)(a), the minimum number of councillors is as follows —
(a) if the district’s population is not more than 75 000 — 5 councillors;
(b) otherwise — 9 councillors.
(5) For the purposes of subsection (1)(b), the maximum number of councillors is as follows —
(a) if the district’s population is not more than 5 000 — 7 councillors;
(b) if the district’s population is more than 5 000 but not more than 75 000 — 9 councillors;
(c) otherwise — 15 councillors.
(6) This section is subject to section 2.18A(5).
[Section 2.17A inserted: No. 11 of 2023 s. 13.]
Subdivision 3 — Orders
[Heading inserted: No. 11 of 2023 s. 14.]
2.18. Fixing and changing number of councillors
(1) When a local government is newly established the Governor, by order made on the recommendation of the Minister, is to —
(a) specify the number of offices of councillor on the council of the local government; and
(b) if the district is to have a ward system, specify the numbers of offices of councillor for the wards.
(2) When an order is made under section 2.2 discontinuing a ward system for a district, the number of offices of councillor on the council remains unchanged unless the order specifies otherwise.
(3) The Governor, on the recommendation of the Minister, may make an order —
(a) changing the number of offices of councillor on a council; or
(b) specifying or changing the number of offices of councillor for a ward; or
(c) as to a combination of those matters.
(4) The Minister can only make a recommendation under subsection (1) or (3) if the Advisory Board has recommended under Schedule 2.2 that the order in question should be made.
(5) This section is subject to section 2.18A.
[Section 2.18 amended: No. 11 of 2023 s. 15.]
2.18A. Change orders
(1) The Governor may, on the recommendation of the Minister, by order (a change order) —
(a) specify the number of offices of councillor that the council of a local government is to have; and
(b) if relevant — specify the number of offices of councillor that each ward in the district is to have.
(2) The Minister can make a recommendation under subsection (1) specifying a number of offices only for either of the following purposes —
(a) if there is, or will be, a change in the method of filling the office of mayor or president used by the local government —
(i) increasing the number of councillors by 1, if the change is from the election by the electors method to the election by the council method; or
(ii) decreasing the number of councillors by 1, if the change is from the election by the council method to the election by the electors method;
(b) if an order has been made under section 2.16B that applies, or will apply, to the district —
(i) increasing the number of councillors to ensure that that number is, or will be, not less than the minimum number that applies, or will apply, to the local government under section 2.17 or 2.17A in consequence of the order made under section 2.16B; or
(ii) decreasing the number of councillors to ensure that that number is, or will be, not more than the maximum number that applies, or will apply, to the local government under section 2.17 or 2.17A in consequence of the order made under section 2.16B.
(3) A change order must provide for the increase or decrease in the number of councillors to have effect —
(a) on and from an ordinary election day for the local government; or
(b) subject to subsection (6), on and from an election day for the local government that is not an ordinary election day.
(4) However, if the increase or decrease in the number of councillors is more than 1, a change order may provide —
(a) for part of the increase or decrease to have effect —
(i) on and from an ordinary election day for the local government; or
(ii) subject to subsection (6), on and from an election day for the local government that is not an ordinary election day;
and
(b) for the remaining part of the increase or decrease to have effect —
(i) on and from the first ordinary election day for the local government that falls after the day on which the part increase or decrease under paragraph (a) takes effect; or
(ii) subject to subsection (6), on and from an election day for the local government that is not an ordinary election day and that falls after the day on which the part increase or decrease under paragraph (a) takes effect.
(5) A part increase or decrease under subsection (4)(a) has effect despite section 2.17 or 2.17A.
(6) Provision can be made under subsection (3)(b) or (4)(a)(ii) or (b)(ii) only if the Minister is satisfied that the provision is appropriate because of particular circumstances.
The offices of members of the council have been declared vacant under section 2.37 and the next election for the local government will be an election under section 4.13.
The council has been dismissed under section 8.25(1) and the next election for the local government will be an election under section 4.14.
(7) If the district is divided into wards, a change order may abolish all of the wards on the day on which the increase or decrease, or a part of the increase or decrease, in the number of councillors takes effect.
(8) If the increase or decrease, or a part of the increase or decrease, in the number of councillors takes effect on an ordinary election day for the local government, a change order may provide for this Act to apply as if the Table to section 2.28 provided for the terms of all councillors, or of all councillors for a ward, to end on the ordinary election day.
(9) If provision is made under subsection (8), the ordinary elections are to be held accordingly for the purpose of filling all offices of councillor or of councillor for the ward (as the number of those offices is increased or decreased on the ordinary election day).
(10) The making of a change order does not prevent any order being subsequently made under this Part that applies to the local government or district.
(11) The Interpretation Act 1984 section 42 applies to a change order as if the change order were regulations made under this Act.
[Section 2.18A inserted: No. 11 of 2023 s. 16.]
Division 5 — Qualifications for holding office on the council
2.19. Qualifications for election to council
(1) A person is qualified to be elected as a member of a council if the person —
(a) is of or over the age of 18 years; and
(b) is an elector of the district; and
(d) is not disqualified for membership of the council under section 2.20, 2.21, 2.22, 2.23 or 2.24; and
(da) is not disqualified under section 2.25A(3) from holding office as a member of a council; and
(e) is not disqualified by an order under section 8A.14(5), 8A.21(2)(b), 8A.25(1)(b)(viii) or 8A.27(2)(b) from holding office as a member of a council.
(2) A person is not qualified under subsection (1)(b) if, but for being a nominee of a body corporate under section 4.31(1G), the person would not be eligible for enrolment under section 4.30(1)(a) and (b).
(2A) Regulations may provide that an occupier is not qualified under subsection (1)(b) unless prescribed requirements are met.
(2B) In subsection (2A) —
occupier means a person —
(a) who is eligible to be enrolled under section 4.30(1); and
(b) whose eligibility claim referred to in section 4.30(1)(c) is based on occupation of rateable property.
(2C) The requirements that may be prescribed for the purposes of subsection (2A) include (without limitation) the following —
(a) requirements relating to whether any person is enrolled, or is regarded under section 4.29(2) as being enrolled, as an elector for the Legislative Assembly in respect of a residence that is the rateable property;
(b) other requirements relating to the current, past or future ownership, occupation or use of the rateable property.
(2D) In subsections (2B) and (2C), references to rateable property include a portion of rateable property as described in section 4.31(1D)(a) or (b).
(3) A person who is qualified under subsection (1) can be elected as a councillor for a ward whether or not the person is an elector of that ward.
[Section 2.19 amended: No. 1 of 1998 s. 5(1); No. 1 of 2007 s. 4; No. 2 of 2012 s. 4; No. 11 of 2023 s. 17; No. 47 of 2024 s. 8 and 160.]
2.20. Members of parliament disqualified
(1) A person is disqualified for membership of a council if the person is a member of a parliament.
member of a parliament means —
(a) a member of the Legislative Assembly; or
(b) a member of the Legislative Council, including a person who has been elected as a member of that House but is not yet entitled to sit or vote in that House because of section 8(2) of the Constitution Acts Amendment Act 1899; or
(c) a member of the House of Representatives; or
(d) a senator, including a person who has been elected as a senator but whose term of service as a senator has not yet begun.
[Section 2.20 amended: No. 2 of 2012 s. 5.]
2.21. Disqualification because of insolvency
A person is disqualified for membership of a council if the person is, according to the Interpretation Act 1984 section 13D, a bankrupt or a person whose affairs are under insolvency laws.
[Section 2.21 amended: No. 10 of 2001 s. 121; No. 47 of 2024 s. 9.]
2.22. Disqualification because of convictions
(1) A person is disqualified for membership of a council if the person —
(a) has been convicted of a crime and is in prison serving a sentence for that crime; or
(b) has been convicted in the preceding 5 years of a serious local government offence; or
(c) has been convicted of an offence for which the indictable penalty was or included —
(i) imprisonment for life; or
(ii) imprisonment for more than 5 years.
(2) A court that has sentenced a person for a serious local government offence may make an order —
(a) waiving the application of subsection (1)(b); or
(b) reducing the period of 5 years mentioned in subsection (1)(b),
and the court’s order has effect in accordance with its terms.
indictable penalty means the penalty that the relevant law specified for the offence in the event of a person being convicted of the offence on indictment;
offence means an offence against a law of this State, the Commonwealth, another State or a Territory;
serious local government offence means an offence against this Act for which an offender —
(a) could be sentenced to imprisonment; or
(b) could be sentenced to pay a fine of or exceeding $10 000.
[Section 2.22 amended: No. 2 of 2012 s. 12; No. 31 of 2018 s. 4; No. 47 of 2024 s. 10.]
2.23. Disqualification because of membership of another council
A person is disqualified for membership of a council if the person is a member of another council.
2.24. Disqualification because of misapplication of funds or property
A person is disqualified for membership of a council if section 8.43(1), or an order under section 8.43(3), applies to the person.
2.25. Disqualification for failure to attend meetings
(1) A council may, by resolution, grant leave of absence, to a member.
(2) Leave is not to be granted to a member in respect of more than 6 consecutive ordinary meetings of the council without the approval of the Minister, unless all of the meetings are within a period of 3 months.
(3A) Leave is not to be granted in respect of —
(a) a meeting that has concluded; or
(b) the part of a meeting before the granting of leave.
(3) The granting of the leave, or refusal to grant the leave and reasons for that refusal, is to be recorded in the minutes of the meeting.
(4) A member who is absent, without obtaining leave of the council, throughout 3 consecutive ordinary meetings of the council is disqualified from continuing their membership of the council, unless all of the meetings are within a 2 month period.
(5A) If a council holds 3 or more ordinary meetings within a 2 month period, and a member is absent without leave throughout each of those meetings, the member is disqualified if the member is absent without leave throughout the ordinary meeting of the council immediately following the end of that period.
(5) The non‑attendance of a member at the time and place appointed for an ordinary meeting of the council does not constitute absence from an ordinary meeting of the council —
(a) if no meeting of the council at which a quorum is present is actually held on that day; or
(b) if the non‑attendance occurs —
(i) while the member has ceased to act as a member after written notice has been given to the member under section 2.27(3) and before written notice has been given to the member under section 2.27(5); or
(ii) while proceedings in connection with the disqualification of the member have been commenced and are pending; or
[(iiia) deleted]
(iii) while the member is suspended by an order made under Part 8; or
(iv) while the member is suspended by an order made under Part 8A; or
(v) while the election of the member is disputed and proceedings relating to the disputed election have been commenced and are pending;
or
(c) if the non‑attendance occurs during a period for which the member is entitled to parental leave under subsection (5B).
(5BA) Subsection (5)(b)(iv) does not apply if the scope of the suspension is limited so that the suspension does not apply to the member’s attendance at the ordinary meeting.
(5B) For the purposes of subsection (5)(c), a member is entitled to parental leave for the period of 6 months beginning on the day on which the member or the member’s spouse or de facto partner —
(a) gives birth; or
(b) either alone or with another person and whether in the State or elsewhere — adopts, or becomes the guardian or foster parent of, a person who is under 16 years of age.
[(6) deleted]
[Section 2.25 amended: No. 49 of 2004 s. 19(1); No. 17 of 2009 s. 5; No. 31 of 2018 s. 5; No. 11 of 2023 s. 18; No. 47 of 2024 s. 11 and 160.]
2.25A. Disqualification because of recurrent suspension
(1) For the purposes of this section, a suspension event occurs in relation to a person if the person is suspended by an order made under section 8A.14(5), 8A.18(4), 8A.21(2)(b), 8A.25(1)(b) or 8A.27(2)(b).
(2) A recurrent suspension event occurs in relation to a person if —
(a) 2 or more suspension events have occurred in relation to the person; and
(b) after the occurrence of the suspension events, a further suspension event occurs in relation to the person.
(3) If a recurrent suspension event occurs in relation to a person, the person is disqualified from holding office as a member of a council for the period of 10 years after the end of the period of suspension related to the recurrent suspension event.
(4) For the purposes of this section, it does not matter if the scope of a suspension is limited under the order suspending the person.
(5) For the purposes of this section, it does not matter if a suspension event or recurrent suspension event occurred in relation to a person —
(a) in a different term of office to another suspension event that occurred in relation to the person; or
(b) while the person was a member of a different council than the council of which the person was a member when another suspension event occurred in relation to the person.
[Section 2.25A inserted: No. 47 of 2024 s. 12.]
2.26. Election to council terminates employment with local government
If a person who is employed by a local government is declared to be elected as a member of the local government’s council then, by operation of this section, the person’s employment with the local government ends when the person begins the person’s term of office as a member.
[Section 2.26 amended: No. 47 of 2024 s. 160.]
2.27. Procedure to determine qualification to retain membership of council
disqualified, in relation to a member of a council, means —
(a) not qualified under section 2.19(1)(b) to be elected as a member of the council; or
(b) disqualified for membership of the council under section 2.20, 2.21, 2.22, 2.23 or 2.24; or
(c) disqualified from continuing membership of the council under section 2.25; or
(d) disqualified from holding office as a member of a council under section 2.25A(3).
(2) A member who considers that the member is disqualified is to advise the CEO in writing without delay.
(3) If the CEO has reason (other than through receiving a notice under subsection (2)) to believe that a member of a council is disqualified the CEO is to give the member a written notice without delay indicating the reasons why the CEO believes the member to be disqualified.
(4) The CEO’s notice under subsection (3) has to inform the member —
(a) that if the member believes that the member is not disqualified, the member may advise the CEO in writing within 14 days from the date of the service of the notice; and
(b) that if the member accepts that the member is disqualified in accordance with the terms of the notice, the member is to advise the CEO in writing.
(5) If, within 28 days from the date of service of the CEO’s notice under subsection (3), the member satisfies the CEO that the member is not disqualified, the CEO is to give the member a written notice to that effect.
(6) Unless, within 28 days from the date of service of the CEO’s notice under subsection (3), the member —
(a) satisfies the CEO that the member is not disqualified; or
(b) applies to the State Administrative Tribunal asking for a declaration as to whether or not the member is disqualified and gives a copy of the application to the CEO,
the member is taken to have been disqualified for the reasons indicated in the CEO’s notice.
(7A) If subsection (6) applies to a member the CEO is to give the member a written notice to that effect.
(7) The CEO or any other person may, at any time, apply to the State Administrative Tribunal for a declaration as to whether or not a member of a council is disqualified.
[(8) deleted]
(9) A person who acts as a member of a council while disqualified commits an offence.
(10) This section as in force immediately before the commencement of the Local Government Amendment Act 2009 section 6 applies to and in respect of a notice given under section 2.27(3) before that commencement.
[Section 2.27 amended: No. 55 of 2004 s. 685; No. 17 of 2009 s. 6; No. 2 of 2012 s. 6; No. 47 of 2024 s. 13, 160 and 161.]
Division 6 — Terms of office on the council and vacation of office
2.28. Days on which terms begin and end
(1) The days on which the term of a person holding an office on a council begins and ends depend on the nature of the office and the circumstances in which the person is elected to hold the office.
(2) The days are to be determined in accordance with the Table to this section.
Table to section 2.28
Terms of office
Item
Kind of office
How elected
Term begins
Term ends
1.
Elector mayor or president
Elected at an inaugural election, or a section 4.11, 4.12, 4.13 or 4.14 election, in an election year
On the day after —<br>(a) the day on which the poll is held; or<br>(b) if no poll is held, the day on which a poll would have been held
On the third Saturday in October in the fourth year after the year in which the term began (but note sections 2.14 and 2.30)
2.
Elector mayor or president
Elected at an inaugural election, or a section 4.11, 4.12, 4.13 or 4.14 election, in a year other than an election year
On the day after —<br>(a) the day on which the poll is held; or<br>(b) if no poll is held, the day on which a poll would have been held
On the third Saturday in October in the third year after the year in which the term began (but note sections 2.14 and 2.30)
3.
Councillor
Elected at an inaugural election or any other election not dealt with in item 4, 4A, 5, 6, 8 or 9
On the day after —<br>(a) the day on which the poll is held; or<br>(b) if no poll is held, the day on which a poll would have been held
On the day determined by the returning officer under section 4.78 (but note section 2.30)
4.
Elector mayor or president OR councillor
Elected at an ordinary election not dealt with in item 4A
On the day after the ordinary elections day
On the third Saturday in October in the fourth year after the year in which the term began (but note sections 2.14 and 2.30)
4A.
Councillor
Elected at an ordinary election which was an election for all offices of councillor, or for all offices of councillor for a ward, in a case where provision made by a change order under section 2.18A(8) applied
On the day after the ordinary elections day
On the day determined by the returning officer under section 4.78 (but note section 2.30)
5.
Elector mayor or president OR councillor
Elected at an extraordinary election not dealt with in item 6, 7 or 8
On the day after —<br>(a) the day on which the poll is held; or<br>(b) if no poll is held, the day of nomination
On the day on which the term of office of the person whose office has become vacant would have ended if the vacancy had not occurred
6.
Elector mayor or president OR councillor
Elected at an extraordinary election to fill a vacancy arising by resignation including an election required under section 4.57 or 4.58 in respect of such an extraordinary election
On the day after —<br>(a) the day on which the poll is held; or<br>(b) if no poll is held, the nomination day,<br>unless the office has not then become vacant in which case the term begins when the office becomes vacant
On the day on which the term of office of the person whose office has or will become vacant would have ended if the vacancy had not occurred
7.
Elector mayor or president
Elected at an extraordinary election required under section 4.57 or 4.58 in respect of an ordinary election
On the day after —<br>(a) the day on which the poll is held; or<br>(b) if no poll is held, the day of nomination
On the third Saturday in October in the fourth year after the year in which the term began (but note sections 2.14 and 2.30)
8.
Councillor
Elected at an extraordinary election required under section 4.57 or 4.58 in respect of an ordinary election
On the day after —<br>(a) the day on which the poll is held; or<br>(b) if no poll is held, the day of nomination
On the day determined by the returning officer under section 4.78 (but note section 2.30)
9.
Elector mayor or president OR councillor
Elected at a section 4.15 election
On the day after —<br>(a) the day on which the poll is held; or<br>(b) if no poll is held, the day of nomination
On the day ascertained as if the election were the election that has been declared invalid
10.
Elector mayor president OR councillor
Appointed under section 4.57(3)
On the day on which —<br>(a) the person is appointed; or<br>(b) the person’s term would have begun if the person had been elected under section 4.57(1),<br>whichever is later
On the day on which the term would have ended if the person had been elected under section 4.57(1) (but see Schedule 4.2, clause 9)
11.
Councillor mayor or president
Elected at any election
When the person is elected
When the mayor or president is next elected at or after the local government’s next ordinary elections
12.
Deputy mayor or deputy president
Elected at any election
When the person is elected
At the start of the first meeting of the council after the local government’s next ordinary elections
13.
Elector mayor or president OR councillor
Elected under Schedule 4.1A
On the day on which the person is elected
On the day on which the former member’s term of office would have ended had the office not become vacant
14.
Councillor
Elected under Schedule 4.1B
On the day after the day on which the poll for the concurrent election is held
On the day on which the former member’s term of office would have ended had the office not become vacant
[Section 2.28 amended: No. 66 of 2006 s. 4; No. 2 of 2012 s. 7; No. 11 of 2023 s. 19.]
2.29. Declaration
(1) A person elected as an elector mayor or president or as a councillor has to make a declaration in the prescribed form before acting in the office.
(2) A person elected by the council as mayor, president, deputy mayor or deputy president has to make a declaration in the prescribed form before acting in the office.
(3) A declaration required by this section is to be taken or made before a prescribed person.
(4) A person who acts in an office contrary to this section commits an offence.
[Section 2.29 amended: No. 24 of 2005 s. 57; No. 47 of 2024 s. 161.]
2.30. Terms extended if ordinary elections delayed
Where an ordinary election is deferred or adjourned under this Act until after the third Saturday in October in any year, a member of a council whose term of office expires on that day can continue to act in the office until the substituted election day.
[Section 2.30 amended: No. 66 of 2006 s. 5.]
2.31. Resignation
(1) An elector mayor or president may resign from the office of mayor or president.
(2) A councillor may —
(a) resign from the office of councillor;
(b) resign from the office of councillor mayor or president, deputy mayor or deputy president.
(3) Written notice of resignation is to be signed and dated by the person who is resigning and delivered to the CEO.
(4) The resignation takes effect from the date of delivery of the notice or from a later day specified in the notice.
2.32. How extraordinary vacancies occur in offices elected by electors
(1) The office of a member of a council as an elector mayor or president or as a councillor becomes vacant if the member —
(a) dies; or
(b) resigns from the office; or
(c) does not make the declaration required by section 2.29(1) within 2 months after being declared elected to the office; or
(d) advises or accepts under section 2.27 that the member is disqualified, or is declared to be disqualified by the State Administrative Tribunal acting on an application under section 2.27; or
(da) is disqualified by an order under section 8A.14(5), 8A.21(2)(b), 8A.25(1)(b)(viii) or 8A.27(2)(b) from holding office as a member of a council; or
(db) is dismissed under section 8.11(2), 8.15L or 8.25(2); or
(e) becomes the holder of any office or position in the employment of the local government; or
(f) while holding an office of councillor, is elected to the office of elector mayor or president on the council.
(2) The CEO must notify the Departmental CEO if an office becomes vacant under this section.
[Section 2.32 amended: No. 55 of 2004 s. 686; No. 24 of 2005 s. 58; No. 1 of 2007 s. 5; No. 31 of 2018 s. 6; No. 11 of 2023 s. 20; No. 47 of 2024 s. 14 and 160.]
[2.33. Deleted: No. 2 of 2012 s. 8.]
2.34. How extraordinary vacancies occur in offices elected by council
(1) The office of a member of a council as a councillor mayor or president, deputy mayor or deputy president becomes vacant if the member —
(a) ceases to be a councillor under section 2.32; or
(b) resigns from the office; or
(c) does not make the declaration required by section 2.29(2) within 2 months after being elected to the office; or
(d) being the deputy mayor or deputy president, is elected by the council as mayor or president of the council.
(2) A person who holds an office referred to in subsection (1) immediately before an ordinary elections day continues to hold that office after that day (whether or not the person ceases to be a councillor on that day) until the person’s term of office ends under item 11 or 12 of the Table to section 2.28.
(3) The CEO must notify the Departmental CEO if an office becomes vacant under this section.
[Section 2.34 amended: No. 2 of 2012 s. 9; No. 47 of 2024 s. 15 and 160.]
2.35. Vacancies on restructure of districts, wards or membership
Directions given by order under section 9.62 to give effect to an order under one or more of sections 2.1, 2.2 and 2.18 may direct which offices of members (if any) of a council are to become vacant, and when those offices become vacant.
2.36. Vacancies on dismissal of council or council member
(1) If a council is dismissed under section 8.11(1) or 8.25(1), the offices of the members become vacant from the time when the order dismissing the council takes effect.
(2) If a council member is dismissed under section 8.11(2), 8.15L or 8.25(2) the office of the member becomes vacant from the time when the order dismissing the member takes effect.
[Section 2.36 amended: No. 31 of 2018 s. 7; No. 47 of 2024 s. 16.]
2.36A. Power to declare offices vacant if district to be abolished
(1) If an order abolishing a district is made so as to take effect on a day other than the day on which that order is published in the Gazette, the Governor may, by order, declare all the offices of members of the council to be vacant.
(2) A declaration under this section —
(a) has no effect if it is made more than 2 years before the date on which the district is to be abolished; and
(b) takes effect from the time specified in it.
(3) When a declaration has been made under this section the Governor may, by order, appoint a person as commissioner of the local government until the district is abolished.
[Section 2.36A inserted: No. 64 of 1998 s. 4(1).]
2.37. Power to declare offices vacant
(1) If more than ½ of the offices of members of a council are vacant for any reason, the Governor may, by order, declare all the remaining offices of members to be vacant.
(2) If the Minister receives notification under section 5.3(3) about the failure of a council to hold a meeting, the Governor may, by order, declare all the offices of members of the council to be vacant.
(3) A declaration under this section takes effect from the time specified in the declaration.
(4) When a declaration has been made under this section the Governor may, by order, appoint a person to be the commissioner of the local government until the offices of members of the council are filled again and the new council holds its first meeting.
(5) An order under subsection (4) is to fix a day for any poll needed for the election of members to fill the vacant offices again.
(6) The day fixed is to be a day that is as soon as practicable after the declaration takes effect and allows enough time for the electoral requirements to be complied with, but is not to be later than 2 years after the day on which the declaration takes effect.
[Section 2.37 amended: No. 49 of 2004 s. 21.]
2.37A. Vacancies in all offices for any other reason
(1) If all the offices of members of a council have become vacant, or are going to become vacant, for any reason other than an order under section 2.36A(1), 2.37(1) or (2) or 8.25(1), the Governor may, by order, appoint a person to be the commissioner of the local government until the offices of members of the council are filled again and the new council holds its first meeting.
(2) An order under subsection (1) is to fix a day for any poll needed for the election of members to fill the vacant offices again.
(3) The day fixed is to be a day that is as soon as practicable after the appointment takes effect and allows enough time for the electoral requirements to be complied with, but is not to be later than 2 years after the day on which the appointment takes effect.
[Section 2.37A inserted: No. 1 of 1998 s. 6(1); amended: No. 64 of 1998 s. 4(3); No. 49 of 2004 s. 22; No. 31 of 2018 s. 8.]
Division 7 — Commissioners
2.38. Function of commissioner
(1) The function of a commissioner of a local government is to exercise the powers and discharge the duties of the council of the local government and its mayor or president.
(2) A commissioner is to be regarded as being the council.
(3) Unless section 2.43 applies, or the contrary intention appears, a reference in this Act or another written law to a local government, a council or a member of a council includes reference to a commissioner.
2.39. Appointment of commissioner
(1) A commissioner of a local government can be appointed by the Governor under the power given by section 2.6(4), 2.36A(3), 2.37(4), 2.37A(1), 8.30 or 8.33 and not otherwise.
(2) Subsection (1) does not prevent the appointment of a person under Schedule 2.4 clause 4 to fill a vacancy in the office of commissioner.
[Section 2.39 amended: No. 1 of 1998 s. 6(3); No. 64 of 1998 s. 4(4); No. 17 of 2009 s. 7.]
2.40. Joint commissioners
(1) A power to appoint a commissioner includes power to appoint 3 or 5 commissioners to administer the local government and to appoint one of them to be the chairperson and another to be the deputy chairperson.
(2) If 3 or 5 commissioners are appointed —
(a) they are to exercise the powers and discharge the duties of the council of the local government jointly; and
(b) the chairperson is to exercise the powers and discharge the duties of the mayor or president; and
(c) the deputy chairperson is to exercise the powers and discharge the duties of the deputy mayor or deputy president.
2.41. Appointment, tenure, meetings etc.
Schedule 2.4 (which contains provisions about commissioners) has effect.
2.42. Commissioner to make declaration
(1) A person cannot act in the office of commissioner until the person has made a declaration in the prescribed form.
(2) A person who acts in an office contrary to this section commits an offence.
[Section 2.42 amended: No. 24 of 2005 s. 59; No. 47 of 2024 s. 160 and 161.]
2.43. Applicability of certain provisions of this Act
(1) Division 5 does not apply to a commissioner except to the extent required by Schedule 2.4, clauses 1 and 3(c).
(2) Division 6 does not apply to a commissioner.
(3) Part 5, Division 6 does not apply to an interest that a commissioner has in a question relating to a payment or reimbursement under Schedule 2.4, clause 5.
See also sections 5.105(2) and 8A.9(5).
[Section 2.43 amended: No. 47 of 2024 s. 17.]
Division 8 — Local Government Advisory Board
2.44. Advisory Board, establishment of
(1) There is established a body to be known as the Local Government Advisory Board.
(2) Schedule 2.5 (which contains provisions about the Local Government Advisory Board) has effect.
2.45. Advisory Board, functions of
(1) The functions of the Advisory Board include —
(a) considering and, if required by this Act, inquiring into any proposal made to it under this Act that an order be made to do any or all of the matters in section 2.1, 2.2, 2.3, 2.18(1) or 2.18(3); and
(b) making recommendations to the Minister on those proposals; and
(c) carrying out any other inquiries the Minister may direct; and
(d) considering whether as a consequence of any recommendation the Board proposes to make to the Minister, the making of an order to do any or any other of the matters in section 2.1, 2.2, 2.3, 2.18(1) or 2.18(3) in respect of a relevant district is or may be necessary.
(2) In subsection (1)(d) —
relevant district means a district to which the proposed recommendation relates or an adjoining district.
(3) If the Advisory Board considers that the making of an order referred to in subsection (1)(d) is or may be necessary, the Board is to consider or inquire into the making of any such order as if it had received a proposal that such an order be made.
Part 3 — Functions of local governments
This Part describes the functions of a local government and deals with some important issues that the performance of those functions may involve.
(a) Division 1 describes the general function of a local government and contains some other general provisions;
(b) Divisions 2 and 3 deal with legislative and executive functions respectively;
(c) Division 4 allows functions to be performed by regional local governments;
(d) Division 5 restricts what a local government may do during a caretaker period.
Division 1 — General
3.1. General function
(1) The general function of a local government is to provide for the good government of persons in its district.
(1A) Without limiting subsection (1), the general function of a local government must be performed having regard to the following —
(a) the need —
(i) to promote the economic, social and environmental sustainability of the district; and
(ii) to plan for, and to plan for mitigating, risks associated with climate change; and
(iii) in making decisions, to consider potential long‑term consequences and impacts on future generations;
(b) the need —
(i) to recognise the particular interests of Aboriginal people; and
(ii) to involve Aboriginal people in decision‑making processes;
(c) the need to consider collaboration with other local governments.
(2) The scope of the general function of a local government is to be construed in the context of its other functions under this Act or any other written law and any constraints imposed by this Act or any other written law on the performance of its functions.
(3) A liberal approach is to be taken to the construction of the scope of the general function of a local government.
[Section 3.1 amended: No. 11 of 2023 s. 21.]
3.2. Relationship to State Government
The scope of the general function of a local government in relation to its district is not limited by reason only that the Government of the State performs or may perform functions of a like nature.
3.3. Act not to affect Crown’s rights concerning alienated land
Nothing that this Act authorises a local government or anyone else to do prevents the Crown or a person acting on its behalf from doing anything relating to or affecting land alienated from the Crown that could have been done if this Act had not been enacted.
3.4. Functions may be legislative or executive
The general function of a local government includes legislative and executive functions.
Division 2 — Legislative functions of local governments
Subdivision 1 — Local laws made under this Act
3.5. Legislative power of local governments
(1) A local government may make local laws under this Act prescribing all matters that are required or permitted to be prescribed by a local law, or are necessary or convenient to be so prescribed, for it to perform any of its functions under this Act.
(2) A local law made under this Act does not apply outside the local government’s district unless it is made to apply outside the district under section 3.6.
(3) The power conferred on a local government by subsection (1) is in addition to any power to make local laws conferred on it by any other Act.
(4A) Nothing in the Building Act 2011 prevents a local government from making local laws under this Act about building work, demolition work, a standard for the construction or demolition of buildings or incidental structures, or the use and maintenance of, and requirements in relation to, existing buildings or incidental structures, as those terms are defined in section 3 of that Act.
(4B) Nothing in the Health (Miscellaneous Provisions) Act 1911 or the Public Health Act 2016 prevents a local government from making local laws under this Act about matters relating to public health (as defined in the Public Health Act 2016 section 4(1)).
(4) Regulations may set out —
(a) matters about which, or purposes for which, local laws are not to be made; or
(b) kinds of local laws that are not to be made,
and a local government cannot make a local law about such a matter, or for such a purpose or of such a kind.
(5) Regulations may set out such transitional arrangements as are necessary or convenient to deal with a local law ceasing to have effect because the power to make it has been removed by regulations under subsection (4).
[Section 3.5 amended: No. 64 of 1998 s. 5; No. 24 of 2011 s. 166(2); No. 19 of 2016 s. 166.]
3.6. Places outside district
(1) If the Governor’s approval has been first obtained, a local government may make a local law under this Act that applies outside its district.
(2) A local government cannot, under subsection (1), make a local law that applies to —
(a) a part of the State that is in the district of another local government; or
(b) a part of the State to which a local law made by another local government concerning the same subject matter applies under this section.
(3) The Governor may revoke any approval given under subsection (1) and, after that revocation, a local law made under the approval ceases to apply to the part of the State for which the approval was given.
(4) The Minister is to cause notice of any revocation under subsection (3) to be published in the Gazette.
3.7. Inconsistency with written laws
A local law made under this Act is inoperative to the extent that it is inconsistent with this Act or any other written law.
3.8. Local laws may adopt codes etc.
(1) A local law made under this Act may adopt the text of —
(a) any model local law, or amendment to it, published under section 3.9; or
(b) a local law of any other local government; or
(c) any code, rules, specifications, or standard issued by Standards Australia or by such other body as is specified in the local law.
(2) The text may be adopted —
(a) wholly or in part; or
(b) as modified by the local law; or
(c) as it exists at a particular date or, except if the text of a model local law is being adopted, as amended from time to time.
(3) The adoption may be direct, by reference made in the local law, or indirect, by reference made in any text that is itself directly or indirectly adopted.
[Section 3.8 amended: No. 74 of 2003 s. 79.]
3.9. Model local laws
(1) The Governor may cause to be prepared and published in the Gazette model local laws the provisions of which a local law made under this Act may adopt by reference, with or without modifications.
(2) Model local laws have no effect except to the extent that they are adopted.
(3) The Governor may, by notice published in the Gazette, amend a model local law published under this section.
(4) An amendment of a model local law does not affect any local law that adopted the model local law before the amendment but the amendment may be adopted by a further local law.
3.10. Creating offences and prescribing penalties
(1) A local law made under this Act may provide that contravention of a provision of the local law is an offence, and may provide for the offence to be punishable on conviction by a penalty not exceeding a fine of $10 000.
(2) If the offence is of a continuing nature, the local law may make the person liable to a further penalty not exceeding a fine of $500 in respect of each day or part of a day during which the offence has continued.
(3) The local law may provide for the imposition of a minimum penalty for the offence.
(4) The level of the penalty may be related to —
(a) the circumstances or extent of the offence;
(b) whether the offender has committed previous offences and, if so, the number of previous offences that the offender has committed.
[(5) deleted]
(6) A local law made under this Act may specify the method and the means by which any fines imposed are to be paid and collected, or recovered.
[Section 3.10 amended: No. 1 of 1998 s. 7; No. 47 of 2024 s. 18.]
Subdivision 2 — Local laws made under any Act
3.11. Subdivision applies to local laws made under any Act
This Subdivision applies to local laws made under this Act and the procedure for making them and, unless a contrary intention appears in that other Act, to local laws made under any other Act, and the procedure for making them.
3.12. Procedure for making local laws
(1) In making a local law a local government is to follow the procedure described in this section, in the sequence in which it is described.
(2A) Despite subsection (1), a failure to follow the procedure described in this section does not invalidate a local law if there has been substantial compliance with the procedure.
(2) At a council meeting the person presiding is to give notice to the meeting of the purpose and effect of the proposed local law in the prescribed manner.
(3) Subject to subsection (3A), the local government is to —
(a) give local public notice stating that —
(i) the local government proposes to make a local law the purpose and effect of which is summarised in the notice; and
(ii) a copy of the proposed local law may be inspected or obtained at any place specified in the notice; and
(iii) submissions about the proposed local law may be made to the local government before a day to be specified in the notice, being a day that is not less than 6 weeks after the notice is given;
and
(b) as soon as the notice is given, give a copy of the proposed local law and a copy of the notice to —
(ii) if a department of the Public Service other than the Department assists in the administration of an Act under which the local law is proposed to be made — the chief executive officer of that other department;
and
(c) provide a copy of the proposed local law, in accordance with the notice, to any person requesting it.
(3A) The local government may, at the council meeting referred to in subsection (2), determine to proceed under subsection (3C) instead of subsection (3) if all the proposed local law would do is adopt, wholly and without modification —
(a) a model local law; or
(b) a model local law except certain provisions that the local government determines, at the council meeting referred to in subsection (2), are not relevant to the local government and the district.
(3B) In subsection (3A)(a) and (b), references to a model local law include an amendment of a model local law.
(3C) If the local government determines to proceed under this subsection, the local government must —
(a) publish a notice on the local government’s official website stating that —
(i) the local government proposes to make a local law the purpose and effect of which is summarised in the notice; and
(ii) a copy of the proposed local law may be inspected or obtained at any place specified in the notice; and
(iii) submissions about the proposed local law may be made to the local government before a day to be specified in the notice, being a day that is not less than 3 weeks after the notice is published;
and
(b) as soon as the notice is published, give a copy of the notice to —
(ii) if a department of the Public Service other than the Department assists in the administration of an Act under which the local law is proposed to be made — the chief executive officer of that other department;
and
(c) provide a copy of the proposed local law, in accordance with the notice, to any person requesting it.
(4) After the last day for submissions under subsection (3) or (3C) (as the case requires), the local government is to consider any submissions made and may make the local law* as proposed or make a local law* that is not significantly different from what was proposed.
(5) After making a local law, the local government must —
(a) publish the local law in the Gazette; and
(b) give a copy of the local law to —
(ii) if a department of the Public Service other than the Department assists in the administration of an Act under which the local law is made — the chief executive officer of that other department.
(6) After the local law has been published in the Gazette the local government is to give notice in the required way —
(a) stating the title of the local law; and
(b) summarising the purpose and effect of the local law (specifying the day on which it comes into operation); and
(c) advising that the local law is published on the local government’s official website and that copies of the local law may be inspected at or obtained from the local government’s office.
(6A) For the purposes of subsection (6), the required way for giving a notice is as follows —
(a) if the local government proceeded under subsection (3) — by local public notice;
(b) if the local government proceeded under subsection (3C) — by notice published on the local government’s official website.
(7) The Minister may give directions to local governments requiring them to provide to the Parliament copies of local laws they have made and any explanatory or other material relating to them.
(8) In this section —
making in relation to a local law, includes making a local law to amend the text of, or repeal, a local law.
[Section 3.12 amended: No. 1 of 1998 s. 8; No. 64 of 1998 s. 6; No. 49 of 2004 s. 16(4) and 23; No. 26 of 2016 s. 5; No. 16 of 2019 s. 8; No. 47 of 2024 s. 19.]
3.13. Procedure where significant change in proposal
If during the procedure for making a proposed local law the local government decides to make a local law that would be significantly different from what it first proposed, the local government is to recommence the procedure.
3.14. Commencement of local laws
(1) Unless it is made under section 3.17, a local law comes into operation on the 14th day after the day on which it is published in the Gazette or on such later day as may be specified in the local law.
(2) A local law made under section 3.17 comes into operation on the day on which it is published in the Gazette or on such later day as may be specified in the local law.
[Section 3.14 amended: No. 1 of 1998 s. 9.]
3.15. Local laws to be publicised
A local government is to take reasonable steps to ensure that the inhabitants of the district are informed of the purpose and effect of all of its local laws.
3.16. Periodic review of local laws
(1) Within a period of 15 years after the day on which a local law commenced or a determination in respect of the local law was last made under subsection (4), as the case requires, a local government must carry out a review of the local law to determine whether it considers that the local law should be repealed, be amended or remain unchanged.
(2) The local government is to give local public notice stating that —
(a) the local government proposes to review the local law; and
(b) a copy of the local law may be inspected or obtained at any place specified in the notice; and
(c) submissions about the local law may be made to the local government before a day to be specified in the notice, being a day that is not less than 6 weeks after the notice is given.
[(2a) deleted]
(3) After the last day for submissions, the local government is to consider any submissions made and cause a report of the review to be prepared and submitted to its council.
(4) After the report has been submitted to its council, the local government must determine* whether it considers that the local law should be repealed, be amended or remain unchanged.
(5) If no determination is made under subsection (4) within the applicable 15‑year period under subsection (1), the local law is repealed at the end of that period.
(6) If a local law is repealed by subsection (5), the local government must, not later than 14 days after the end of the applicable 15‑year period —
(a) give notice of the repeal to —
(ii) if a department of the Public Service other than the Department assists in the administration of an Act under which the local law was made — the chief executive officer of that other department;
and
(b) publish notice of the repeal in the Gazette; and
(c) give local public notice of the repeal.
(7) If different provisions of a local law commenced on different days, the local law is taken, for the purposes of this section, to have commenced on the earliest of those days.
(8) This section does not apply to a local law if all it does is amend the text of, or repeal, a local law.
[Section 3.16 amended: No. 64 of 1998 s. 7; No. 49 of 2004 s. 24; No. 16 of 2019 s. 9; No. 47 of 2024 s. 20.]
3.17. Governor may amend or repeal local laws
(1) The Governor may make local laws to amend the text of, or repeal, a local law.
(2) Subsection (1) does not include the power to amend a local law to include in it any provision that bears no reasonable relationship to the local law as in force before the amendment.
(3) The Minister is to give a local government notice in writing of any local law that the Governor makes to amend the text of, or repeal, any of the local government’s local laws.
(4) Section 5.94 applies as if a local law made under this section by the Governor were a local law made by the local government in accordance with section 3.12.
(5) The reference in the Interpretation Act 1984 section 42(8)(b) to local laws includes local laws made under this section by the Governor.
[Section 3.17 amended: No. 16 of 2019 s. 10.]
Division 3 — Executive functions of local governments
Subdivision 1 — Performing executive functions
3.18. Performing executive functions
(1) A local government is to administer its local laws and may do all other things that are necessary or convenient to be done for, or in connection with, performing its functions under this Act.
(2) In performing its executive functions, a local government may provide services and facilities.
(3) A local government is to satisfy itself that services and facilities that it provides —
(a) integrate and coordinate, so far as practicable, with any provided by the Commonwealth, the State or any public body; and
(b) do not duplicate, to an extent that the local government considers inappropriate, services or facilities provided by the Commonwealth, the State or any other body or person, whether public or private; and
(c) are managed efficiently and effectively.
3.19. Places to be regarded as within district
(1) For the purposes of the performance by a local government of any of its executive functions, its district is to be regarded as including —
(a) any part of another district in relation to which it has been given approval by the local government of that district to perform that function; and
(b) any part of the State in relation to which it has been given approval by the Governor to perform that function.
(2) Approval cannot be given under subsection (1)(b) in relation to a part of the State that is in a district.
(3) The Governor may revoke any approval given under subsection (1)(b).
(4) If the Governor has, under section 3.6, given approval for a local government to make a local law that has effect as if the local government’s district included a part of the State that is not in a district, that approval is to be taken to include approval under this section to the extent necessary for the proper administration of that local law.
3.20. Performing functions outside district
(1) Things done by a local government in performing its executive functions may be done outside its own district but before it can do anything on land outside its own district that is not local government property of that local government it is required to have obtained the consent of —
(a) the owner of the land; and
(b) if the land is occupied, the occupier of the land; and
(c) if the land is under the control or management of any other person, that other person.
(2) This section does not apply to anything that a local government does in the district of another local government if it is done on behalf of the local government of that district.
3.21. Duties when performing functions
(1) In performing its executive functions, a local government, so far as is reasonable and practicable, is to —
(a) ensure that —
(i) the lawful use of any land, thoroughfare or premises is not obstructed, and any reasonable request that a person makes to avoid such obstruction is met; and
(ii) as little harm or inconvenience is caused and as little damage is done as is possible; and
(iii) danger to any person or property does not arise from anything done on land; and
(iv) anything belonging to it, or to a person who has exercised a power of entry on its behalf, that has been left on any land, premises or thing entered is removed as soon as practicable unless this Act expressly allows it to be left there;
and
(b) ensure that —
(i) buildings, fences, and other structures are not disturbed nor damaged; and
(ii) when it enters land that is fenced, it enters through the existing and usual openings in the fence unless it is expressly authorised to open the fence; and
(iii) any physical damage done to any land, premises or thing, is immediately made good unless compensation has been or is to be paid.
(2) Subsection (1)(b) does not apply to any land, premises or thing that is local government property.
3.22. Compensation
(1) If a person who is —
(a) the owner or occupier of land granted in fee simple; or
(b) the occupier of land held under lease or on conditional terms of purchase from the Crown, except for pastoral or timber purposes,
sustains damage through the performance by a local government of its functions under this Act, the local government is to compensate the person if the person requests compensation unless it is otherwise expressly stated in subsection (5) or in Schedule 3.1 or Schedule 3.2.
(2) Despite subsection (1), regulations amending Schedule 3.1 or Schedule 3.2 may exclude or limit the obligation of a local government to pay compensation for a particular matter.
(3) The assessment of damage for which compensation is to be paid is to include the value of any material taken under Subdivision 2.
(4) A dispute about the amount of compensation is to be determined by arbitration in accordance with section 3.23.
(5) Compensation is not payable for damage sustained through a local government —
(a) draining water onto land to the extent that the water follows a natural watercourse; or
(b) closing or restricting the use of a thoroughfare under section 3.50 or a power given by any other written law; or
(c) performing functions under section 3.51(2)(b); or
(d) performing any other prescribed function.
(6) This section does not limit section 9.57.
(7) Regulations may —
(a) prescribe the time within which compensation may be claimed and procedures for making claims;
(b) make provision as to how compensation for damage is to be assessed.
[Section 3.22 amended: No. 64 of 1998 s. 14(2).]
3.23. Arbitration
If a matter is to be determined by arbitration in accordance with this section —
(a) if the parties have not signed or otherwise assented to an agreement to refer the matter to arbitration, the matter is nevertheless to be regarded as having been referred for arbitration under the Commercial Arbitration Act 2012; and
(b) the Commercial Arbitration Act 2012 applies in respect of the reference and the arbitration; and
(c) the determination is to be made by 2 arbitrators, one to be appointed by each party, but this paragraph does not exclude the provisions of the Commercial Arbitration Act 2012 that apply if a party defaults in the exercise of a power of appointment.
[Section 3.23 amended: No. 23 of 2012 s. 45.]
Subdivision 2 — Certain provisions about land
3.24. Authorising persons under this Subdivision
The powers given to a local government by this Subdivision can only be exercised on behalf of the local government by a person expressly authorised by it to exercise those powers.
3.25. Notices requiring certain things to be done by owner or occupier of land
(1) A local government may give a person who is the owner or, unless Schedule 3.1 indicates otherwise, the occupier of land a notice in writing relating to the land requiring the person to do anything specified in the notice that —
(a) is prescribed in Schedule 3.1, Division 1; or
(b) is for the purpose of remedying or mitigating the effects of any offence against a provision prescribed in Schedule 3.1, Division 2.
(2) Schedule 3.1 may be amended by regulations.
(3) If the notice is given to an occupier who is not the owner of the land, the owner is to be informed in writing that the notice was given.
(4) A person who is given a notice under subsection (1) is not prevented from complying with it because of the terms on which the land is held.
(5) A person who is given a notice under subsection (1) may apply to the State Administrative Tribunal for a review of the decision to give the notice.
(6) A person who fails to comply with a notice under subsection (1) commits an offence.
[Section 3.25 amended: No. 55 of 2004 s. 687; No. 47 of 2024 s. 21.]
3.26. Additional powers when notices given
(1) This section applies when a notice is given under section 3.25(1).
(2) If the person who is given the notice (notice recipient) fails to comply with it, the local government may do anything that it considers necessary to achieve, so far as is practicable, the purpose for which the notice was given.
(3) The local government may recover the cost of anything it does under subsection (2) as a debt due from the person who failed to comply with the notice.
(4) If a notice recipient —
(a) incurs expense in complying with any requirement of the notice; or
(b) fails to comply with such a requirement and, as a consequence, is fined or has to pay to a local government the cost it incurs in doing anything under subsection (2),
the notice recipient may apply to a court for an order under subsection (6).
(5) In subsection (4) —
court means a court that would have jurisdiction to hear an action to recover a debt of the amount of the expense, fine or cost sought to be recovered by the notice recipient.
(6) On an application under subsection (4) the court may order —
(a) if the notice recipient is the owner, the occupier; or
(b) if the notice recipient is the occupier, the owner,
to pay to the notice recipient so much of that expense, fine or cost as the court considers fair and reasonable in the circumstances.
(7) In determining what is fair and reasonable the court is to have regard to —
(a) the type of land involved; and
(b) the terms on which the occupier is occupying the land; and
(c) any other matter the court considers to be relevant.
[Section 3.26 amended: No. 1 of 1998 s. 10.]
3.27. Particular things local governments can do on land that is not local government property
(1) A local government may, in performing its general function, do any of the things prescribed in Schedule 3.2 even though the land on which it is done is not local government property and the local government does not have consent to do it.
(2A) In subsection (1) land includes Crown land the subject of a pastoral lease within the meaning of the Land Administration Act 1997 section 3.
(2) Schedule 3.2 may be amended by regulations.
(3) If Schedule 3.2 expressly states that this subsection applies, subsection (1) does not authorise anything to be done on land that is being used as the site or curtilage of a building or has been developed in any other way, or is cultivated.
(4A) For the purposes of subsection (3), planting pasture on land for grazing does not amount to cultivating the land.
(4) Nothing in subsection (3) prevents regulations amending Schedule 3.2 from stating that subsection (3) applies, or excluding its application, in relation to a particular matter.
[Section 3.27 amended: No. 17 of 2009 s. 8]
Subdivision 3 — Powers of entry
3.28. When this Subdivision applies
The powers of entry conferred by this Subdivision may be used for performing any function that a local government has under this Act if entry is required for the performance of the function or in any other case in which entry is authorised by this Act other than by a local law.
3.29. Powers of entry are additional
The powers of entry upon land conferred by this Subdivision are in addition to and not in derogation of any power of entry conferred by any other law.
3.30. Assistants and equipment
Entry under this Subdivision may be made with such assistants and equipment as are considered necessary for the purpose for which entry is required.
3.31. General procedure for entering property
(1) Except in an emergency or if the entry is authorised by the warrant of a justice, entry by or on behalf of a local government on to any land, premises or thing is not lawful unless —
(a) the consent of the owner or occupier has been obtained; or
(b) notice has been given under section 3.32.
(2) If notice has been given under section 3.32, a person authorised by the local government to do so may lawfully enter the land, premises or thing without the consent of the owner or occupier unless the owner or occupier or a person authorised by the owner or occupier objects to the entry.
(3) The powers conferred on a local government under this section may be exercised instead of the powers conferred under the Public Works Act 1902 and are not subject to any qualification or restriction by any provision of that Act.
3.32. Notice of entry
(1) A notice of an intended entry is to be given to the owner or occupier of the land, premises or thing that is to be entered.
(2) The notice is to specify the purpose for which the entry is required and continues to have effect for so long as that requirement continues.
(3) The notice is to be given not less than 24 hours before the power of entry is exercised.
(4) Successive entries for the purpose specified in the notice are to be regarded as entries to which that notice relates.
3.33. Entry under warrant
(1) In the circumstances described in subsection (2), a justice may by warrant authorise a local government by its employees, together with such other persons as are named or described in the warrant, or a police officer, to enter any land, premises or thing using such force as is necessary.
(2) A warrant may be granted under subsection (1) where a justice is satisfied that the entry is reasonably required by a local government for the purpose of performing any of its functions, but —
(a) entry has been refused or is opposed or prevented; or
(b) entry cannot be obtained; or
(c) notice cannot be given under section 3.32 without unreasonable difficulty or without unreasonably delaying entry.
(3) A warrant granted under subsection (1) —
(a) is to be in the prescribed form; and
(b) is to specify the purpose for which the land, premises or thing may be entered; and
(c) continues to have effect until the purpose for which it was granted has been satisfied.
3.34. Entry in emergency
(1) In an emergency a local government may lawfully enter any land, premises or thing immediately and without notice and perform any of its functions as it considers appropriate to deal with the emergency.
(2) For the purposes of this section, an emergency exists where the local government or its CEO is of the opinion that the circumstances are such that compliance with the requirements for obtaining entry other than under this section would be impractical or unreasonable because of, or because of the imminent risk of —
(a) injury or illness to any person; or
(b) a natural or other disaster or emergency; or
(c) such other occurrence as is prescribed for the purposes of this section.
(3) A local government may use reasonable force to exercise the power of entry given by subsection (1).
(4) A local government may exercise the power of entry given by subsection (1) at any time while the emergency exists and for so long subsequently as is reasonably required.
(5) Although notice of an intended entry under this section is not generally required, a local government is to give notice of an intended entry of land under this section to the owner or occupier of the land where it is practicable to do so.
3.35. Purpose of entry to be given on request
A person who enters or who has entered any land, premises or thing on behalf of a local government is to give particulars of the power by virtue of which the local government claims a right of entry on being requested to do so.
3.36. Opening fences
(1) This section applies only if it is expressly stated in Schedule 3.2.
(2) Subsection (1) does not prevent regulations amending Schedule 3.2 from stating that this section applies, or excluding the application of this section, in relation to a particular matter.
(3) If this section applies and it is not practicable to enter land that is fenced through the existing and usual openings in the fence, the local government may, on giving 3 days’ notice in writing to the owner or occupier of the land that it intends to do so, open the fence.
(4) If it opens the fence the local government is to provide at the opening an effective gate or, if the owner of the land agrees, a device across the gap in the fence that enables motor traffic to pass through the gap and prevents the straying of livestock through the gap.
(5) If a gate is provided a person who, without the occupier’s consent, leaves the gate open when it is not in use commits an offence.
(6) If a gate is provided, when the local government no longer requires the opening, it is to immediately remove the gate and make good the fence unless the owner agrees to its retention.
(7) The owner and occupier may, in a particular case, relieve the local government of any obligation that it has under this section.
[Section 3.36 amended: No. 47 of 2024 s. 22.]
Subdivision 4 — Impounding abandoned vehicle wrecks and goods involved in certain contraventions
[Heading amended: No. 8 of 2009 s. 87.]
3.37. Contraventions that can lead to impounding
(1) Regulations may prescribe any contravention of a regulation or local law made under this Act to be a contravention that can lead to impounding.
(2) Regulations may exclude the application of particular provisions of this Subdivision.
3.38. Terms used
alleged offender means the person who is alleged to have committed a contravention that can lead to impounding;
contravention that can lead to impounding means anything prescribed to be a contravention that can lead to impounding;
goods means any goods involved in a contravention that can lead to impounding, and includes —
(a) a vehicle; or
(ab) an animal; or
(b) a stall or other structure temporarily placed on land,
involved in such a contravention;
non‑perishable goods includes animals;
specified, in relation to a notice, means specified in the notice;
vehicle means a vehicle for which a vehicle licence is required under the Road Traffic (Vehicles) Act 2012 if the vehicle is to be used on a road.
[Section 3.38 amended: No. 64 of 1998 s. 8; No. 28 of 2001 s. 33; No. 8 of 2012 s. 121.]
3.39. Power to remove and impound
(1) An employee authorised by a local government for the purpose may remove and impound any goods that are involved in a contravention that can lead to impounding.
(2) A person may use reasonable force to exercise the power given by subsection (1).
3.40. Vehicle may be removed if goods to be impounded are in or on vehicle
(1) Where under section 3.39 an employee may remove and impound any goods that are in or on a vehicle that is not itself to be impounded and, because of their size, nature or quantity or for any other reason, it is not convenient to unload and deal with them where they are, the employee may enter the vehicle for the purpose of removing it to a place where the goods may be conveniently unloaded and impounded.
(2) Where a vehicle is removed under subsection (1) the local government is to allow the alleged offender, as soon as practicable after the goods are unloaded from the vehicle, to resume control of the vehicle.
(3) If the person entitled to resume control of the vehicle is not present when the goods are unloaded or fails to resume control of the vehicle, the local government is to give notice to the person who is the holder of the requisite vehicle licence or permit under the Road Traffic (Vehicles) Act 2012 in respect of the vehicle, advising that the vehicle may be collected from a place specified during such hours as are specified.
[Section 3.40 amended: No. 8 of 2012 s. 122.]
3.40A. Abandoned vehicle wreck may be taken
(1) An employee authorised by a local government for the purpose may remove and impound a vehicle that, in the opinion of the local government, is an abandoned vehicle wreck.
(2) If, within 7 days after a vehicle is removed under subsection (1), the owner of the vehicle is identified, the local government is to give notice to that person advising that the vehicle may be collected from a place specified during such hours as are specified in the notice.
(3) A notice is to include a short statement of the effect of subsection (4)(b) and the effect of the relevant provisions of sections 3.46 and 3.47.
(4) If —
(a) after 7 days from the removal of a vehicle under subsection (1), the owner of the vehicle has not been identified; or
(b) after 7 days from being given notice under subsection (2), the owner of the vehicle has not collected the vehicle,
the local government may declare that the vehicle is an abandoned vehicle wreck.
abandoned vehicle wreck means a vehicle —
(a) that is not operational; and
(b) the owner of which has not been identified by the local government after using all reasonable avenues to do so; and
(c) that has a value that is less than the prescribed value calculated in the prescribed manner.
[Section 3.40A inserted: No. 49 of 2004 s. 25(1).]
3.41. Impounded perishable goods, notice to collect
(1) When any perishable goods are being removed under section 3.39 the employee removing them is required to personally give the person from whose charge they are removed notice that the goods may be collected from a place specified during such hours as are specified.
(2) The giving of the notice does not prevent a prosecution from being instituted against the alleged offender.
3.42. Impounded non‑perishable goods
(1) When any non‑perishable goods have been removed and impounded under section 3.39 the local government is required to either —
(a) institute a prosecution against the alleged offender; or
(b) give the alleged offender notice that the goods may be collected from a place specified during such hours as are specified.
(2) If after 7 days after the goods were removed, a local government has been unable to give the alleged offender a notice under subsection (1)(b) because it has been unable, after making reasonable efforts to do so, to find the alleged offender, the local government is to be taken to have given that notice.
[Section 3.42 amended: No. 64 of 1998 s. 9.]
3.43. Impounded non‑perishable goods, court may confiscate
When a court convicts an alleged offender the court may, in addition to imposing any other penalty, order that any non‑perishable goods removed and impounded under section 3.39 be confiscated.
3.44. Notice to collect goods if not confiscated
Where non‑perishable goods have been removed and impounded under section 3.39 and a prosecution is instituted, if the alleged offender —
(a) is not convicted; or
(b) is convicted but the court does not order that the goods be confiscated,
the local government is required to give the alleged offender notice that the goods may be collected from a place specified during such hours as are specified.
3.45. Notice to include warning
A notice is to include a short statement of the effect of the relevant provisions of sections 3.46, 3.47 and 3.48.
3.46. Goods may be withheld until costs paid
(1) A local government may refuse to allow goods impounded under section 3.39 or 3.40A to be collected until the costs of removing, impounding and keeping them have been paid to the local government.
(2) A local government may refuse to allow goods removed under section 3.40 or 3.40A to be collected until the costs of removing and keeping them have been paid to the local government.
[Section 3.46 inserted: No. 64 of 1998 s. 10; amended: No. 49 of 2004 s. 25(2) and (3).]
3.47. Confiscated or uncollected goods, disposal of
(1) The local government may sell or otherwise dispose of any goods that have been ordered to be confiscated under section 3.43.
(2) The local government may sell or otherwise dispose of any vehicle that has not been collected within —
(a) 2 months of a notice having been given under section 3.40(3); or
(b) 7 days of a declaration being made under section 3.40A(4) that the vehicle is an abandoned vehicle wreck.
(2a) The local government may sell or otherwise dispose of impounded goods that have not been collected within the period specified in subsection (2b) of —
(a) a notice having been given under section 3.42(1)(b) or 3.44; or
(b) being impounded if the local government has been unable, after making reasonable efforts to do so, to give that notice to the alleged offender.
(2b) The period after which goods may be sold or otherwise disposed of under subsection (2a) is —
(a) for perishable goods — 3 days;
(b) for animals — 7 days;
(ca) for prescribed non‑perishable goods — one month;
(c) for other non‑perishable goods — 2 months.
(3) Section 3.58 applies to the sale of goods under this section as if they were property referred to in that section.
(4) Money received by a local government from the sale of goods under subsection (2a) is to be credited to its trust fund except to the extent required to meet the costs and expenses incurred by the local government in removing, impounding and selling the goods.
(5) Money received by a local government from the sale of a vehicle under subsection (2) is to be credited to its trust fund except to the extent required to meet the costs referred to in section 3.46 and the expenses incurred by the local government in selling the vehicle.
(6) Unless this section requires it to be credited to its trust fund, money received by a local government from the sale under this section of any goods is to be credited to its municipal fund.
[Section 3.47 amended: No. 64 of 1998 s. 11; No. 49 of 2004 s. 25(4); No. 17 of 2009 s. 9.]
3.47A. Sick or injured animals, disposal of
(1) If an impounded animal is ill or injured to such an extent that treating it is not practicable the local government may humanely destroy the animal and dispose of the carcass.
(2) A local government must not destroy an animal under subsection (1) unless —
(a) because of the state of the animal, destroying it is urgent; or
(b) the local government has —
(i) taken reasonable steps to notify the owner; and
(ii) whether or not notice has been given under subparagraph (i), allowed the owner a reasonable opportunity to collect the animal.
(3) Subsection (2)(b) does not justify the destruction of an animal before it has been impounded for at least 7 days.
[Section 3.47A inserted: No. 64 of 1998 s. 12.]
3.48. Impounding expenses, recovery of
If goods are removed and impounded under section 3.39 and the alleged offender is convicted, the local government may, by action in a court of competent jurisdiction, recover from the alleged offender —
(a) if the goods are not sold under section 3.47, the expenses incurred by the local government in removing and impounding them and in disposing of them if they are disposed of under section 3.47; and
(b) if the goods are confiscated and sold under section 3.47, the amount, if any, by which the money received from the sale and credited to the municipal fund under section 3.47(6) is insufficient to meet expenses incurred by the local government in removing, impounding, and selling them; and
(c) if the goods are not confiscated but are sold under section 3.47, the amount, if any, by which the money received from the sale is insufficient to meet the costs and expenses referred to in section 3.47(4) or (5), as the case requires.
[Section 3.48 amended: No. 64 of 1998 s. 13.]
Subdivision 5 — Certain provisions about thoroughfares
[3.49. Deleted: No. 64 of 1998 s. 14(1).]
3.50. Closing certain thoroughfares to vehicles
(1) A local government may close any thoroughfare that it manages to the passage of vehicles, wholly or partially, for a period not exceeding 4 weeks.
(1a) A local government may, by local public notice, order that a thoroughfare that it manages is wholly or partially closed to the passage of vehicles for a period exceeding 4 weeks.
(2) The order may limit the closure to vehicles of any class, to particular times, or to such other case or class of case as may be specified in the order and may contain exceptions.
(4) Before it makes an order wholly or partially closing a thoroughfare to the passage of vehicles for a period exceeding 4 weeks or continuing the closure of a thoroughfare, the local government is to —
(a) give local public notice of the proposed order giving details of the proposal, including the location of the thoroughfare and where, when, and why it would be closed, and inviting submissions from any person who wishes to make a submission; and
(b) give written notice to each person who —
(i) is prescribed for the purposes of this section; or
(ii) owns land that is prescribed for the purposes of this section;
and
(c) allow a reasonable time for submissions to be made and consider any submissions made.
(5) The local government is to send to the Commissioner of Main Roads appointed under the Main Roads Act 1930 a copy of the contents of the notice required by subsection (4)(a).
(6) An order under this section has effect according to its terms, but may be revoked by the local government, or by the Minister, by order of which local public notice is given.
[(7) deleted]
(8) If, under subsection (1), a thoroughfare is closed without giving local public notice, the local government is to give local public notice of the closure as soon as practicable after the thoroughfare is closed.
(9) The requirement in subsection (8) ceases to apply if the thoroughfare is reopened.
[Section 3.50 amended: No. 1 of 1998 s. 11; No. 64 of 1998 s. 15; No. 49 of 2004 s. 26.]
3.50A. Partial closure of thoroughfare for repairs or maintenance
Despite section 3.50, a local government may partially and temporarily close a thoroughfare, without giving local public notice, if the closure —
(a) is for the purpose of carrying out repairs or maintenance; and
(b) is unlikely to have a significant adverse effect on users of the thoroughfare.
[Section 3.50A inserted: No. 64 of 1998 s. 16.]
3.51. Affected owners to be notified of certain proposals
person having an interest, in relation to doing anything, means a person who —
(a) is the owner of the land in respect of which that thing is done, or any land that is likely to be adversely affected by doing that thing; or
(b) is shown on the title to any of the land mentioned in paragraph (a) as holding an interest in any of that land; or
(c) is prescribed for the purposes of this section.
(2) This section applies to —
(a) fixing or altering the level of, or the alignment of, a public thoroughfare; or
(b) draining water from a public thoroughfare or other public place onto adjoining land.
(3) Before doing anything to which this section applies, a local government is to —
(a) give notice of what is proposed to be done giving details of the proposal and inviting submissions from any person who wishes to make a submission; and
(b) allow a reasonable time for submissions to be made and consider any submissions made.
(4) The notice is to be given —
(a) in writing to each person having an interest; and
(b) if any land is likely to be adversely affected by the doing of the thing, by local public notice.
[Section 3.51 amended: No. 64 of 1998 s. 17.]
3.52. Public access to be maintained and plans kept
(1) This section applies in respect of a thoroughfare only if it is in the metropolitan area or on land that has been constituted a townsite under section 10 of the Land Act 1933 5.
(2) Except to the extent that it is authorised by law to close them or restrict their use, a local government is to ensure that public thoroughfares are kept open for public use.
(3) In fixing or altering the level of, or the alignment of, a public thoroughfare, a local government is to ensure that access by vehicle to land adjoining the thoroughfare can be reasonably provided.
(4) A local government is to keep plans of the levels and alignments of public thoroughfares that are under its control or management, and make those plans available for public inspection.
Subdivision 6 — Various executive functions
3.53. Control of certain unvested facilities
former section 300 means section 300 of the Local Government Act 1960 4 as in force before the commencement of this Act;
otherwise unvested facility means a thoroughfare, bridge, jetty, drain, or watercourse belonging to the Crown, the responsibility for controlling or managing which is not vested in any person other than under this section.
(2) A local government is responsible for controlling and managing every otherwise unvested facility within its district unless subsection (5) states that this section does not apply.
(3) If the facility is partially within each of 2 or more districts, it is to be controlled and managed as the local governments for the districts concerned agree or, if they do not agree, as the Minister directs.
(4) An agreement or direction under subsection (3) has effect according to its terms.
(5) This section does not apply if any person was, immediately before the commencement of this Act, responsible for controlling or managing the facility unless —
(a) the responsibility arose under the former section 300; or
(b) the Governor, by order, declares that the facility is to be controlled and managed under this section.
3.54. Reserves under control of local government
(1) If land reserved under the Land Administration Act 1997 is vested in or placed under the control and management of a local government, the local government may do anything for the purpose of controlling and managing that land that it could do under section 5 of the Parks and Reserves Act 1895 if it were a Board appointed under that Act to manage and control the land and for that purpose a reference in that section to a by‑law is to be read as a reference to a local law.
(2) Subsection (1) is subject to any express provision to the contrary made by an order under the Land Administration Act 1997 in respect of the land.
[Section 3.54 amended: No. 49 of 2004 s. 74(4).]
3.55. Acquisition of land
A local government can only take land under Part 9 of the Land Administration Act 1997 if it is in, or is to be regarded as being included in, its own district.
[Section 3.55 amended: No. 24 of 2000 s. 22.]
3.56. Tidal waters
A local government can only dredge in tidal waters or reclaim land that is at any time covered by tidal waters if it first obtains the consent, in writing, of the Minister responsible for the administration of the Transport Co‑ordination Act 1966.
3.57. Tenders for providing goods or services
(1) A local government is required to invite tenders before it enters into a contract of a prescribed kind under which another person is to supply goods or services.
(2) Regulations may make provision about tenders.
3.58. Disposing of property
dispose includes to sell, lease, or otherwise dispose of, whether absolutely or not;
property includes the whole or any part of the interest of a local government in property, but does not include money.
(2) Except as stated in this section, a local government can only dispose of property to —
(a) the highest bidder at public auction; or
(b) the person who at public tender called by the local government makes what is, in the opinion of the local government, the most acceptable tender, whether or not it is the highest tender.
(3) A local government can dispose of property other than under subsection (2) if, before agreeing to dispose of the property —
(a) it gives local public notice of the proposed disposition —
(i) describing the property concerned; and
(ii) giving details of the proposed disposition; and
(iii) inviting submissions to be made to the local government before a date to be specified in the notice, being a date not less than 2 weeks after the notice is first given;
and
(b) it considers any submissions made to it before the date specified in the notice and, if its decision is made by the council or a committee, the decision and the reasons for it are recorded in the minutes of the meeting at which the decision was made.
(4) The details of a proposed disposition that are required by subsection (3)(a)(ii) include —
(a) the names of all other parties concerned; and
(b) the consideration to be received by the local government for the disposition; and
(c) the market value of the disposition —
(i) as ascertained by a valuation carried out not more than 6 months before the proposed disposition; or
(ii) as declared by a resolution of the local government on the basis of a valuation carried out more than 6 months before the proposed disposition that the local government believes to be a true indication of the value at the time of the proposed disposition.
(5) This section does not apply to —
(a) a disposition of an interest in land under the Land Administration Act 1997 section 189 or 190; or
(b) a disposition of property in the course of carrying on a trading undertaking as defined in section 3.59; or
(c) anything that the local government provides to a particular person, for a fee or otherwise, in the performance of a function that it has under any written law; or
(d) any other disposition that is excluded by regulations from the application of this section.
[Section 3.58 amended: No. 49 of 2004 s. 27; No. 17 of 2009 s. 10.]
3.59. Commercial enterprises by local governments
acquire has a meaning that accords with the meaning of dispose;
dispose includes to sell, lease, or otherwise dispose of, whether absolutely or not;
land transaction means an agreement, or several agreements for a common purpose, under which a local government is to —
(a) acquire or dispose of an interest in land; or
(b) develop land;
major land transaction means a land transaction other than an exempt land transaction if the total value of —
(a) the consideration under the transaction; and
(b) anything done by the local government for achieving the purpose of the transaction,
is more, or is worth more, than the amount prescribed for the purposes of this definition;
major trading undertaking means a trading undertaking that —
(a) in the last completed financial year, involved; or
(b) in the current financial year or the financial year after the current financial year, is likely to involve,
expenditure by the local government of more than the amount prescribed for the purposes of this definition, except an exempt trading undertaking;
trading undertaking means an activity carried on by a local government with a view to producing profit to it, or any other activity carried on by it that is of a kind prescribed for the purposes of this definition, but does not include anything referred to in paragraph (a) or (b) of the definition of land transaction.
(2) Before it —
(a) commences a major trading undertaking; or
(b) enters into a major land transaction; or
(c) enters into a land transaction that is preparatory to entry into a major land transaction,
a local government is to prepare a business plan.
(3) The business plan is to include an overall assessment of the major trading undertaking or major land transaction and is to include details of —
(a) its expected effect on the provision of facilities and services by the local government; and
(b) its expected effect on other persons providing facilities and services in the district; and
(c) its expected financial effect on the local government; and
(d) its expected effect on matters referred to in the local government’s current plan prepared under section 5.56; and
(e) the ability of the local government to manage the undertaking or the performance of the transaction; and
(f) any other matter prescribed for the purposes of this subsection.
(4) The local government is to —
(a) give Statewide public notice stating that —
(i) the local government proposes to commence the major trading undertaking or enter into the major land transaction described in the notice or into a land transaction that is preparatory to that major land transaction; and
(ii) a copy of the business plan may be inspected or obtained at any place specified in the notice; and
(iii) submissions about the proposed undertaking or transaction may be made to the local government before a day to be specified in the notice, being a day that is not less than 6 weeks after the notice is given;
and
(b) make a copy of the business plan available for public inspection in accordance with the notice; and
(c) publish a copy of the business plan on the local government’s official website.
(5) After the last day for submissions, the local government is to consider any submissions made and may decide* to proceed with the undertaking or transaction as proposed or so that it is not significantly different from what was proposed.
[(5a) deleted]
(6) If the local government wishes to commence an undertaking or transaction that is significantly different from what was proposed it can only do so after it has complied with this section in respect of its new proposal.
(7) The local government can only commence the undertaking or enter into the transaction with the approval of the Minister if it is of a kind for which the regulations require the Minister’s approval.
(8) A local government can only continue carrying on a trading undertaking after it has become a major trading undertaking if it has complied with the requirements of this section that apply to commencing a major trading undertaking, and for the purpose of applying this section in that case a reference in it to commencing the undertaking includes a reference to continuing the undertaking.
(9) A local government can only enter into an agreement, or do anything else, as a result of which a land transaction would become a major land transaction if it has complied with the requirements of this section that apply to entering into a major land transaction, and for the purpose of applying this section in that case a reference in it to entering into the transaction includes a reference to doing anything that would result in the transaction becoming a major land transaction.
(10) For the purposes of this section, regulations may —
(a) prescribe any land transaction to be an exempt land transaction;
(b) prescribe any trading undertaking to be an exempt trading undertaking.
[Section 3.59 amended: No. 1 of 1998 s. 12; No. 64 of 1998 s. 18(1) and (2); No. 16 of 2019 s. 11.]
3.60. No capacity to form or acquire control of body corporate
A local government cannot form or take part in forming, or acquire an interest giving it the control of, an incorporated company or any other body corporate except a regional local government or regional subsidiary unless it is permitted to do so by regulations.
[Section 3.60 amended: No. 26 of 2016 s. 6.]
Division 4 — Regional local governments and regional subsidiaries
[Heading amended: No. 26 of 2016 s. 7.]
3.61. Establishing regional local government
(1) Two or more local governments (referred to in this Division as the participants) may, with the Minister’s approval, establish a regional local government to do things, for the participants, for any purpose for which a local government can do things under this Act or any other Act.
(2) An application for the Minister’s approval is to be —
(a) in a form approved for that purpose by the Minister; and
(b) accompanied by a copy of an agreement between the participants to establish the regional local government (referred to in this Division as the establishment agreement).
(3) The participants are to supply the Minister any further information about the application that the Minister asks for.
(4) If the Minister approves the application the Minister is to declare, by notice in the Gazette, that the regional local government is established —
(a) on the date; and
(b) under the name; and
(c) for the purpose,
set out in the notice.
3.62. Constitution and purpose of regional local government
(1) A regional local government —
(a) is a body corporate with perpetual succession and a common seal; and
(b) is to have as its governing body a council established under the establishment agreement and consisting of members of the councils of the participants.
(2) The purpose for which a regional local government is established (referred to in this Division as the regional purpose) is as set out in the establishment agreement.
3.63. Dissolution or partial dissolution of regional local government
(1) A regional local government is to be wound up —
(a) at the direction of the Minister; or
(b) in accordance with the establishment agreement.
(2) A participant may, in accordance with the establishment agreement, withdraw from the regional local government and cease to be a participant.
3.64. Establishment agreement, what it must contain
The following matters are to be set out or provided for in the establishment agreement for a regional local government —
(a) the name of the regional local government; and
(b) a description of the region for which the regional local government is established; and
(c) the number of offices of member on the council of the regional local government and, in respect of each participant, the number of members to be appointed by that participant; and
(d) the appointment and tenure of members and deputy members of the council of the regional local government; and
(e) the election or appointment of a chairperson and deputy chairperson of the regional local government from amongst members of its council and the term of office of a chairperson and deputy chairperson, which is not to exceed 2 years; and
(f) the purpose for which the regional local government is established; and
(g) a means of determining the financial contributions of the participants to the funds of the regional local government; and
(h) procedures for the winding up of the regional local government or for the withdrawal of a participant from the regional local government; and
(i) procedures for the division of assets and liabilities between the participants in the event of the regional local government being wound up or a participant withdrawing from the regional local government; and
(j) a means of resolving disputes between participants as to matters relating to the regional local government; and
(k) any other prescribed matter.
[Section 3.64 amended: No. 49 of 2004 s. 28; No. 17 of 2009 s. 11; No. 5 of 2017 s. 5.]
3.65. Establishment agreement, amendment of
(1) The participants may amend the establishment agreement for a regional local government by agreement made with the Minister’s approval, and a reference in this Division to the establishment agreement includes a reference to the establishment agreement as so amended.
(2) The establishment agreement can be amended under subsection (1) to include another local government as a further participant if that local government is a party to the amending agreement.
(3) Section 3.61(2) and (3) apply, with any necessary modifications, to an agreement amending the establishment agreement.
3.66. Application of enabling Acts to regional local government
(1) Except as otherwise stated in this section, this Act and any other Act under which anything can be done for the regional purpose apply in relation to a regional local government as if —
(a) the participants’ districts together made up a single district; and
(b) the regional local government were the local government established for that district.
(2) A regional local government can only do things for the regional purpose, and the application of this Act or any other Act under subsection (1) is limited accordingly.
(3) The following provisions of this Act do not apply in relation to a regional local government —
(a) Part 2 (other than sections 2.7, 2.26, 2.29 and 2.32(1)(e) and Division 7); and
(b) Part 4; and
(c) Part 5, Division 2, Subdivision 4; and
(d) Part 6, Division 6; and
(e) any provision prescribed for the purposes of this subsection.
(4) Part 6, Division 5, Subdivision 3 does not apply in relation to a regional local government unless the establishment agreement provides that it does.
(5) The provisions that do apply in relation to a regional local government apply to it subject to any prescribed modifications and any other necessary modifications.
[Section 3.66 amended: No. 49 of 2004 s. 29; No. 47 of 2024 s. 23.]
3.67. Inconsistency between regional and other local laws
To the extent that a local law made by a regional local government is inconsistent with a local law made by a local government, the local law made by the regional local government prevails.
3.68. Other arrangements not affected
Nothing in sections 3.61 to 3.67 prevents local governments from making arrangements under which —
(a) a local government performs a function for another local government; or
(b) local governments perform a function jointly.
[Section 3.68 amended: No. 26 of 2016 s. 8.]
3.69. Regional subsidiaries
(1) Two or more local governments may, with the Minister’s approval and in accordance with the regulations, form a subsidiary body (called a regional subsidiary) to provide services or otherwise to carry on activities.
(2) If the Minister approves the formation of a regional subsidiary, the Minister must, by notice in the Gazette, declare that the regional subsidiary is established —
(a) on the date set out in the notice; and
(b) under the name set out in the notice.
(3) A regional subsidiary —
(a) is a body corporate with perpetual succession and a common seal; and
(b) is to have a governing body consisting of members appointed in accordance with the regional subsidiary’s charter (as approved by the Minister in accordance with section 3.70(3)).
(4) Without limiting subsection (3)(b), a governing body may consist of or include members who are not council members or employees.
[Section 3.69 inserted: No. 26 of 2016 s. 9; amended: No. 47 of 2024 s. 24.]
3.70. Regional subsidiaries to have charter
(1) Local governments proposing to form a regional subsidiary must prepare a charter addressing the following matters —
(a) the establishment and powers and duties of the regional subsidiary;
(b) the process for selecting and appointing members of the regional subsidiary’s governing body;
(c) the qualifications that members of the regional subsidiary’s governing body must have;
(d) the administration of the regional subsidiary, including the membership and procedures of its governing body, and the fees, allowances and expenses to be paid or reimbursed to the members of its governing body;
(e) the financial management, planning, auditing and reporting to be undertaken by the regional subsidiary;
(f) the process for amending the charter;
(g) the winding up of the regional subsidiary;
(h) any other matters required by the regulations to be dealt with in a charter.
(1A) The respective interests, rights and duties of the local governments under the charter do not have to be equal or otherwise the same.
If the charter includes a requirement to make financial contributions to the regional subsidiary —
(a) the required financial contributions do not have to be the same for each local government; and
(b) the requirement does not have to apply to all of the local governments.
If the regional subsidiary is required under the charter to provide services in the local governments’ districts —
(a) the type and scope of the services required to be provided does not have to be the same for each district; and
(b) the regional subsidiary does not have to be required to provide services in all of the districts.
(2) The local governments must forward the charter to the Minister when applying for approval for the formation of the regional subsidiary.
(3) A charter, and an amendment to a charter, are of no effect unless approved by the Minister.
(4) The Minister’s approval under subsection (3) may be given subject to specified changes being made to the charter or amendment, in which event the charter or amendment has no effect unless the changes are made.
[Section 3.70 inserted: No. 26 of 2016 s. 9; amended: No. 47 of 2024 s. 25.]
3.70A. Audit requirements for regional subsidiaries
(1) Section 7.1 and the provisions of Part 7 Divisions 3A to 4 apply in relation to a regional subsidiary as if the regional subsidiary were a local government.
(2) The application of a provision under subsection (1) is subject to any prescribed or necessary modifications to the provision provided for in the regulations.
[Section 3.70A inserted: No. 5 of 2017 s. 6.]
3.70B. Principles affecting employment by regional subsidiaries
(1) The principles mentioned in section 5.40(a) to (f) apply to a regional subsidiary in respect of its employees as if —
(a) references to employees were to employees of the regional subsidiary; and
(b) references to a local government were to the regional subsidiary.
(2) For the purposes of subsection (1), regulations may provide for any principle prescribed for the purposes of section 5.40(f) to apply with modifications in relation to a regional subsidiary.
[Section 3.70B inserted: No. 47 of 2024 s. 26.]
3.71. Regulations about regional subsidiaries
Regulations may —
(a) regulate the procedure for applying to the Minister for approval for the formation of a regional subsidiary; and
(b) require the local governments proposing to form a regional subsidiary to consult with the community in their districts in accordance with the regulations; and
(c) provide that a specified provision of this Act (including the regulations) applies in relation to a regional subsidiary subject to any prescribed or necessary modifications; and
(ca) make provision in relation to the selection, employment and functions of employees of a regional subsidiary; and
(d) provide for or regulate any other matter that is necessary or convenient to be provided for or regulated in respect of a regional subsidiary.
[Section 3.71 inserted: No. 26 of 2016 s. 9; amended: No. 47 of 2024 s. 28.]
3.72. Other provisions and arrangements not affected
(1) Section 3.69 has effect in addition to the provisions of this Division relating to regional local governments, and does not derogate from those provisions.
(2) Nothing in section 3.69 prevents local governments from making arrangements under which —
(a) a local government provides a service or carries on an activity for another local government; or
(b) local governments provide a service or carry on an activity jointly without forming a regional subsidiary.
[Section 3.72 inserted: No. 26 of 2016 s. 9.]
Division 5 — Caretaker period
[Heading inserted: No. 11 of 2023 s. 23.]
3.73. Restrictions on what local government may do during caretaker period
emergency means —
(a) the occurrence, or imminent occurrence, of an event, situation or condition that is a hazard under the definition of that term in the Emergency Management Act 2005 section 3; or
(b) a public health emergency as defined in the Public Health Act 2016 section 4(1);
land transaction has the meaning given in section 3.59(1);
major land transaction has the meaning given in section 3.59(1);
major trading undertaking has the meaning given in section 3.59(1);
significant act means any of the following —
(a) making a local law (including making a local law to amend or repeal a local law);
(b) entering into, or renewing or terminating, the contract of employment of the CEO or of a senior employee;
(c) entering into a major land transaction;
(d) entering into a land transaction that is preparatory to entry into a major land transaction;
(e) commencing a major trading undertaking;
(f) entering into a contract, or other agreement or arrangement, in prescribed circumstances;
(g) inviting tenders in prescribed circumstances;
(h) deciding to do anything referred to in paragraphs (a) to (g);
(i) an act done under a written law or otherwise that is a prescribed act.
(2) During a caretaker period, a local government must not do a significant act.
(3) Subsections (4) to (6) apply despite subsection (2).
(4) A local government may do a significant act during a caretaker period if —
(a) the local government’s decision to do the significant act was made before the caretaker period; and
(b) any prescribed requirements are met.
(5) A local government may do a significant act during a caretaker period if it is necessary for the local government to do the significant act during the caretaker period in order to comply with any of the following —
(a) a written law;
(b) an order of a court or tribunal;
(c) a contractual obligation of the local government under a contract entered into by the local government before the caretaker period.
(6) The Departmental CEO may authorise a local government to do a significant act during a caretaker period if the Departmental CEO is satisfied that it is necessary for the local government to do the significant act during the caretaker period —
(a) because of an emergency; or
(b) to ensure the proper operation of the local government.
[Section 3.73 inserted: No. 11 of 2023 s. 23; amended: No. 47 of 2024 s. 29.]
Part 4 — Elections and other polls
This Part deals with elections of mayors and presidents by electors, elections of councillors, and polls and referendums, and with related matters.
(a) Divisions 2, 3, 4, 5 and 6 describe the different kinds of elections and direct when those elections are to be held;
(b) Division 7 is about the officials who conduct elections;
(c) Division 8 sets out the qualifications for enrolment to vote at elections;
(d) Division 9 deals with the process of preparing for and conducting an election;
(e) Division 10 deals with complaints about the results of elections;
(f) Division 11 sets out a number of offences in relation to elections and provides for investigation and prosecution of offences;
(g) Division 12 deals with polls and referendums.
Division 1 — Preliminary
4.1. Terms used
election means —
(a) an election of a mayor or president by electors; or
(b) an election of a councillor or councillors whether in a district or in a ward;
election day means the day fixed under this Act for the holding of any poll needed for an election;
election notice has the meaning given by section 4.64;
electoral officer means a returning officer or a deputy returning officer or electoral officer appointed by a returning officer;
electoral requirements means the provisions of this Act about the preparation of electoral rolls, nomination of candidates and other preparations for the holding of elections;
electoral roll is a collective term that refers —
(a) in the case of a district that has wards, to the ward rolls; and
(b) in the case of any district or ward, to the residents roll or rolls and the owners and occupiers roll or rolls,
that may form the electoral roll;
polling place means —
(a) in the case of a voting in person election, a place appointed under section 4.23 for the casting of votes;
(b) in the case of a postal election, a place appointed under section 4.23 for the delivery of votes;
postal election has the meaning given in section 4.61(1);
this Act means this Act or the regulations and this Part means this Part or the regulations made for the purposes of this Part;
voting in person election has the meaning given in section 4.61(1).
[Section 4.1 amended: No. 47 of 2024 s. 30.]
4.1A. Conflict with Commonwealth or State election or referendum
(1) On a day fixed as polling day for the whole of State electorate or a district under the Electoral Act 1907, no election, referendum or other poll is to be held under this Act in, or in any part of, that electorate or district.
(2) On a day fixed for the holding of a referendum, as defined in the Electoral Act 1907, no election, referendum or other poll is to be held under this Act.
(3) On a day appointed under the Commonwealth Electoral Act 1918 as polling day for an election of Senators for the State, no election, referendum or other poll is to be held under this Act.
(4) On a day appointed as polling day for an election of the House of Representatives for an Electoral Division in the State under the Commonwealth Electoral Act 1918, no election, referendum or other poll is to be held under this Act in, or in any part of, that Electoral Division.
(5) On a day fixed as voting day in the State, or an Electoral Division in the State under the Referendum (Machinery Provisions) Act 1984 of the Commonwealth, no election, referendum or other poll is to be held under this Act in the State, or in any part of that Electoral Division, as is relevant.
(6) In this section —
Electoral Division has the same meaning as it has in the Commonwealth Electoral Act 1918.
[Section 4.1A inserted: No. 49 of 2004 s. 30(1); amended: No. 20 of 2021 s. 95(2).]
4.1B. Polling day may be changed where conflict with Commonwealth or State election or referendum
(1) Despite anything else in this Act and subject to subsection (2), where a poll cannot be held on the day fixed under this Act due to section 4.1A, the Governor may, before the day fixed for the poll, by order under section 9.62 fix a later day for the holding of the poll.
(2) The time for the holding of a poll is not to be extended under this section by more than 14 days later than the time originally fixed.
[Section 4.1B inserted: No. 49 of 2004 s. 30(1).]
4.1C. Orders mandating method of conducting election: postal elections
(1) The Governor may, on the recommendation of the Minister, by order provide that, until the order is revoked, each election for a specified local government must be conducted as a postal election.
specified means specified in the order.
(3) An order under subsection (1) —
(a) applies despite section 4.61; and
(b) does not require an election to be conducted as a postal election if election day is on or before the 80th day after the day on which the order is published in the Gazette; and
(c) may include other exceptions to the requirement that each election must be conducted as a postal election.
(4) In relation to an election that must be conducted as a postal election —
(a) the local government is taken to have made, on the 80th day referred to in section 4.20(5), a declaration under section 4.20(4) that the Electoral Commissioner is to be responsible for the conduct of the election; and
(b) that declaration cannot be rescinded; and
(c) the Electoral Commissioner must, under section 4.20(4), appoint a person to be the returning officer for the local government for the election accordingly.
(5) The Minister can make a recommendation under subsection (1) in relation to a local government only if satisfied that —
(a) for the purpose of promoting participation in voting at elections for the local government, postal elections, as opposed to voting in person elections, are the more suitable type of election; and
(b) because of particular circumstances relating to the local government or its district, it is appropriate to make postal elections mandatory for the local government.
(6) Subsection (5) does not apply to a recommendation to revoke an order made under subsection (1).
The power to make an order under subsection (1) includes power to revoke the order — see section 9.65(2).
(7) Before making a recommendation under subsection (1), the Minister must consult the Electoral Commissioner.
(8) The Interpretation Act 1984 section 42 applies to an order made under subsection (1) as if the order were regulations made under this Act.
[Section 4.1C inserted: No. 47 of 2024 s. 31.]
4.1D. Orders mandating method of conducting election: voting in person elections
(1) The Governor may, on the recommendation of the Minister, by order provide that, until the order is revoked, each election for a specified local government must be conducted as a voting in person election.
specified means specified in the order.
(3) An order under subsection (1) —
(a) applies despite section 4.61; and
(b) does not require an election to be conducted as a voting in person election if election day is on or before the 80th day after the day on which the order is published in the Gazette; and
(c) may include other exceptions to the requirement that each election must be conducted as a voting in person election.
(4) The Minister can make a recommendation under subsection (1) in relation to a local government only if satisfied that —
(a) for the purpose of promoting participation in voting at elections for the local government, voting in person elections, as opposed to postal elections, are the more suitable type of election; and
(b) because of particular circumstances relating to the local government or its district, it is appropriate to make voting in person elections mandatory for the local government.
(5) Subsection (4) does not apply to a recommendation to revoke an order made under subsection (1).
The power to make an order under subsection (1) includes power to revoke the order — see section 9.65(2).
(6) Before making a recommendation under subsection (1), the Minister must consult the Electoral Commissioner.
(7) The Interpretation Act 1984 section 42 applies to an order made under subsection (1) as if the order were regulations made under this Act.
[Section 4.1D inserted: No. 47 of 2024 s. 31.]
Division 2 — Inaugural elections
4.2. Inaugural elections
(1) When a local government is newly established elections are to be held —
(a) to elect the councillors of the first council; and
(b) if the method of filling the office of mayor or president is by election by the electors, to elect the first mayor or president.
(2) An election under this section is called an inaugural election.
4.3. Polling day for inaugural election
(1) Any poll needed for an inaugural election is to be held on a day fixed by the Governor by order under section 9.62.
(2) The day fixed is to be a day that is as soon as practicable after the establishment of the local government and allows enough time for the electoral requirements to be complied with, but is not to be later than one year after the establishment of the local government.
Division 3 — Ordinary elections
4.4. Ordinary elections
(1) When the term of office of an elector mayor or president or a councillor is going to end under the Table to section 2.28 an election to fill the office is to be held.
(2) An election under this section is called an ordinary election.
(3) This section does not apply to the office of mayor or president if, under Part 2 Division 3, the next mayor or president is to be elected by the council.
[Section 4.4 amended: No. 11 of 2023 s. 24.]
4.5. Frequency of ordinary elections
A local government is to hold ordinary elections every 2 years.
4.6. Election day for ordinary elections
Any poll needed for an ordinary election is to be held on the day on which the previous term of office referred to in section 4.4(1) ends.
4.7. Ordinary elections day usually third Saturday in October
(1) The effect of section 4.6 is that —
(a) polls for ordinary elections to elect an elector mayor or president will be held on the third Saturday in October every 4 years; and
(b) polls for ordinary elections to elect councillors will be held on the third Saturday in October every 2 years.
(2) If in respect of a particular year in which ordinary elections are required to be held the Electoral Commissioner is of the opinion that it would not be in the public interest to hold polls for those ordinary elections on the third Saturday in October, the Electoral Commissioner may, by notice in the Gazette, fix a later Saturday in October, or the first, second or third Saturday in November, to be the day for holding any polls needed for those ordinary elections.
(3) The election day can be deferred under subsection (2) —
(a) for all local governments; or
(b) for a local government or local governments specified in the notice; or
(c) for a class or classes of local governments specified in the notice.
(4) In the notice under subsection (2), or by a later notice in the Gazette, the Electoral Commissioner may adjust any time, period or date fixed under this Act to take account of the election day being deferred under subsection (2).
[Section 4.7 amended: No. 66 of 2006 s. 6.]
Division 4 — Extraordinary elections
4.8. Extraordinary elections
(1) If the office of a councillor or of an elector mayor or president becomes vacant under section 2.32, an election to fill the office is to be held, except if the vacancy is filled under Schedule 4.1A or 4.1B.
(2) An election is also to be held under this section if section 4.57 or 4.58 so requires.
(3) An election under this section is called an extraordinary election.
[Section 4.8 amended: No. 2 of 2012 s. 10; No. 11 of 2023 s. 25.]
4.9. Election day for extraordinary election
(1) Any poll needed for an extraordinary election is to be held on a day decided on and fixed —
(a) by the mayor or president, in writing, if a day has not already been fixed under paragraph (b); or
(b) by the council at a meeting held within one month after the vacancy occurs, if a day has not already been fixed under paragraph (a).
(2) The election day fixed for an extraordinary election is to be a day that allows enough time for the electoral requirements to be complied with but, unless the Electoral Commissioner approves or section 4.10(b) applies, it cannot be later than 4 months after the vacancy occurs.
(3) If at the end of one month after the vacancy occurs an election day has not been fixed, the CEO is to notify the Electoral Commissioner and the Electoral Commissioner is to —
(a) fix a day for the holding of the poll that allows enough time for the electoral requirements to be complied with; and
(b) advise the CEO of the day fixed.
4.10. Extraordinary election can be held before resignation has taken effect
If a member resigns —
(a) the vacancy is to be regarded for the purposes of sections 4.8(1) and 4.9 as occurring when the CEO receives the notice of resignation even if the resignation takes effect on a later day; but
(b) the election day fixed for the extraordinary election cannot be earlier than one month before the resignation actually takes effect.
Division 5 — Other elections
4.11. Elections after restructure of districts, wards or membership
Any poll needed for an election to give effect to an order under section 2.1(1) changing the boundaries of a district or under section 2.2 or 2.18 is to be held on the day fixed by the Governor by order under section 9.62.
4.12. Elections after reinstatement of council
Any poll needed for an election to fill offices of members that are vacant when a suspended council is reinstated is to be held on the day fixed by order under section 8.29(4).
4.13. Elections after all members’ offices become vacant
Any poll needed for an election to fill the vacant offices after the offices of members have been declared vacant under section 2.37, or after a commissioner of the local government has been appointed under section 2.37A, is to be held on the day fixed by order under section 2.37(5) or 2.37A(2).
[Section 4.13 amended: No. 11 of 2023 s. 26.]
4.14. Elections after council is dismissed
Any poll needed for an election to elect a new council after a council has been dismissed under section 8.25(1) is to be held on the day fixed by order under section 8.34(1).
[Section 4.14 amended: No. 31 of 2018 s. 9.]
4.15. Fresh election after election declared invalid
Any poll needed for a fresh election after an election is declared invalid is to be held on the day fixed by the Court of Disputed Returns under section 4.81(3).
Division 6 — Postponement and consolidation of elections
4.16. Postponement of elections to allow consolidation
(1) This section modifies the operation of sections 4.8, 4.9 and 4.10 in relation to the holding of extraordinary elections.
(2) If a member’s office becomes vacant under section 2.32 (otherwise than by resignation) on or after the third Saturday in July in an election year and long enough before the ordinary elections day in that year to allow the electoral requirements to be complied with, any poll needed for the extraordinary election to fill the vacancy is to be held on that ordinary elections day.
(3) In the case of a member’s office becoming vacant under section 2.32 by resignation, if —
(a) the resignation takes effect, or is to take effect, on or after the third Saturday in July in an election year but not later than one month after the ordinary elections day in that year; and
(b) the CEO receives notice of the resignation long enough before that ordinary elections day to allow the electoral requirements to be complied with,
any poll needed for the extraordinary election to fill the vacancy is to be held on that ordinary elections day.
(4) If a member’s office becomes vacant under section 2.32 —
(a) after the third Saturday in October in the year before an election year; but
(b) before the third Saturday in July in that election year,
the council may, with the approval of the Electoral Commissioner, fix the ordinary elections day in that election year as the day for holding any poll needed for the extraordinary election to fill that vacancy.
[Section 4.16 amended: No. 66 of 2006 s. 7; No. 2 of 2012 s. 11; No. 11 of 2023 s. 27.]
4.17. Cases in which vacant offices can remain unfilled
(1) If a member’s office becomes vacant under section 2.32 on or after the third Saturday in July in the election year in which the term of the office would have ended under the Table to section 2.28, the vacancy is to remain unfilled and the term of the member who held the office is to be regarded in section 4.6 as ending on the day on which it would have ended if the vacancy had not occurred.
(2) If a member’s office becomes vacant under section 2.32 —
(a) after the third Saturday in October in the year before the election year in which the term of the office would have ended under the Table to section 2.28; but
(b) before the third Saturday in July in that election year,
the council may, with the approval of the Electoral Commissioner, allow the vacancy to remain unfilled and, in that case, the term of the member who held the office is to be regarded in section 4.6 as ending on the day on which it would have ended if the vacancy had not occurred.
[(3)-(4) deleted]
[Section 4.17 amended: No. 49 of 2004 s. 31; No. 66 of 2006 s. 8; No. 17 of 2009 s. 12; No. 11 of 2023 s. 28.]
4.18. Certain elections to be held as one
(1) This section applies to the following kinds of elections of councillors —
(a) ordinary elections;
(b) extraordinary elections;
(c) elections under section 4.11, 4.12 or 4.13.
(2) If in a district or ward the same election day is fixed for elections of more than one kind, Division 9 applies to those elections as if they were one election to fill all the offices of councillor for the district or ward that need to be filled.
Division 7 — Provisions about electoral officers and the conduct of elections
4.19. Returning officer
The principal electoral office of a local government is that of returning officer.
4.20. CEO to be returning officer unless other arrangements made
(1) Subject to this section the CEO is the returning officer of a local government for each election.
(2) A local government may, having first obtained the written agreement of the person concerned and the written approval of the Electoral Commissioner, appoint* a person other than the CEO to be the returning officer of the local government for —
(a) an election; or
(b) all elections held while the appointment of the person subsists.
(3) An appointment under subsection (2) —
(a) is to specify the term of the person’s appointment; and
(b) has no effect if it is made after the 80th day before an election day.
(4) A local government may, having first obtained the written agreement of the Electoral Commissioner, declare* the Electoral Commissioner to be responsible for the conduct of an election, or all elections conducted within a particular period of time, and, if such a declaration is made, the Electoral Commissioner is to appoint a person to be the returning officer of the local government for the election or elections.
(5) A declaration under subsection (4) has no effect if it is made after the 80th day before election day unless a declaration has already been made in respect of an election for the local government and the declaration is in respect of an additional election for the same local government.
(6) A declaration made under subsection (4) on or before the 80th day before election day cannot be rescinded after that 80th day.
[Section 4.20 amended: No. 64 of 1998 s. 19(1); No. 49 of 2004 s. 16(4) and 32(1)‑(4).]
4.21. Deputy returning officers
(1) A returning officer appointed under section 4.20(1) or (2) is to appoint one or more deputy returning officers.
(2) If the returning officer is appointed under section 4.20(4), the Electoral Commissioner is to appoint one or more deputy returning officers.
4.22. Returning officer to conduct elections
(1) An election is to be conducted by the returning officer of the local government for that election.
(2) In the case of a returning officer appointed under section 4.20(4), the returning officer is to conduct the election for and under the direction of the Electoral Commissioner.
(3) If the returning officer is absent or cannot perform the returning officer’s functions a deputy returning officer is to perform the returning officer’s functions.
[Section 4.22 amended: No. 47 of 2024 s. 160.]
4.23. Returning officer’s functions
The returning officer’s functions are —
(a) to appoint places for the casting of votes, places for the delivery of postal votes and places for the counting of votes for elections (within or outside the district); and
(b) to appoint other electoral officers to assist in the conduct of elections; and
(c) to ensure that the necessary preparations are made for the conduct of elections; and
(d) to do anything which the returning officer is authorised or required to do under this Act or which is necessary or expedient in order to ensure that elections are conducted in accordance with this Act; and
(e) in the case of a returning officer appointed under section 4.20(4), to do other things if directed to do so by the Electoral Commissioner.
4.24. Electoral Commissioner’s functions
The Electoral Commissioner’s functions under this Act are to do anything which the Electoral Commissioner is authorised or required to do under this Act and, where the Electoral Commissioner is responsible for the conduct of the election, to do anything which is necessary or expedient for the proper and efficient conduct of the election.
4.25. Access to information
The Electoral Commissioner and the returning officer are to have access to any relevant information of a local government in order to perform their functions under this Act.
4.26. Delegation
(1) The Electoral Commissioner may delegate any of the Commissioner’s powers or duties under this Act (except this power of delegation) to another person.
(2) A returning officer may delegate any of the returning officer’s powers or duties under this Act (except this power of delegation) to a deputy returning officer.
(3) Delegations must be in writing.
[Section 4.26 amended: No. 47 of 2024 s. 160.]
4.27. Regulations about electoral officers and conduct of elections
(1) Regulations may include provisions —
(a) about the appointment of returning officers under section 4.20(4), and deputy returning officers under section 4.21(2), and their removal or suspension by the Electoral Commissioner; and
(b) about the appointment, removal or suspension of electoral officers by returning officers; and
(c) about the declarations to be made by electoral officers; and
(d) setting out functions to be performed by local governments, CEOs and returning officers to ensure the proper and efficient conduct of elections.
(2) Despite any other written law, the decision of the Electoral Commissioner or a returning officer about the appointment, removal or suspension of an electoral officer is final.
4.28. Fees and expenses
A local government is to —
(a) pay fees to the electoral officers, in accordance with regulations, for conducting an election; and
(b) meet expenses incurred by the electoral officers in connection with an election; and
(c) if a declaration under section 4.20(4) has been made in relation to the election, meet the expenses of the Electoral Commissioner in connection with the election to the extent required by regulations.
Division 8 — Eligibility for enrolment
4.29. Eligibility of residents to be enrolled
(1) A person is eligible to be enrolled to vote at elections for a district or ward (the electorate) if the person is enrolled as an elector for the Legislative Assembly in respect of a residence in the electorate.
A person is enrolled under the Electoral Act 1907 if they are enrolled under section 40A of that Act.
(2) For the purposes of subsection (1) a person is to be regarded as being enrolled as an elector for the Legislative Assembly even if the person’s name has been omitted in error from the register of electors under the Electoral Act 1907.
[Section 4.29 amended: No. 30 of 2023 s. 186; No. 47 of 2024 s. 160.]
4.30. Eligibility of non‑resident owners and occupiers to be enrolled
(1) A person is eligible to be enrolled to vote at elections for a district or ward (the electorate) if the person —
(a) is enrolled as an elector for the Legislative Assembly or the House of Representatives in respect of a residence outside the electorate; and
(b) owns or occupies rateable property within the electorate; and
(c) has made a successful eligibility claim that still has effect under section 4.33.
A person is enrolled under the Electoral Act 1907 if they are enrolled under section 40A of that Act.
(2) For the purposes of subsection (1)(a) a person is to be regarded as being enrolled as an elector for the Legislative Assembly or the House of Representatives even if the person’s name has been omitted in error from the register of electors under the Electoral Act 1907 or an electoral roll under the Commonwealth Electoral Act 1918.
(3) For the purposes of subsection (1)(c) an eligibility claim is successful if it is accepted under section 4.32, whether or not the acceptance is before the close of enrolments, as defined in section 4.39(1).
(4) A person who is eligible under subsection (1) to vote at an election held less than 50 days after the commencement of the Local Government Amendment Act 2009 section 13 is eligible to vote at that election.
[Section 4.30 amended: No. 17 of 2009 s. 13; No. 30 of 2023 s. 187; No. 47 of 2024 s. 160.]
4.31. Rateable property: ownership and occupation
(1) For the purposes of this Division, subsections (1A) to (1H) apply in relation to rateable property and its ownership and occupation.
(1A) Section 4.30 applies even if part of the rateable property is situated in another district.
(1B) If an enrolment eligibility claim is made in respect of rateable property situated partly in one ward and partly in another ward or wards, it is to be regarded for the purposes of that claim as being in —
(a) the ward nominated by the owner or occupier making the claim; or
(b) if no nomination is made, the ward determined by the CEO.
(1C) A person occupies rateable property if, and only if, the person has a right of continuous occupation under a lease, tenancy agreement or other legal instrument.
(1CA) Regulations may provide that, despite subsection (1C), a person is not to be regarded as occupying rateable property unless prescribed requirements (in addition to the requirement of subsection (1C)) are met.
(1CB) The requirements that may be prescribed for the purposes of subsection (1CA) include (without limitation) the following —
(a) requirements relating to whether any person is enrolled, or is regarded under section 4.29(2) as being enrolled, as an elector for the Legislative Assembly in respect of a residence that is the rateable property;
(b) other requirements relating to the current, past or future ownership, occupation or use of the rateable property.
(1D) A reference to the occupation of rateable property includes a reference to the occupation of —
(a) a separate building or portion of a building on the rateable property; or
(b) some other separate and distinguishable portion of the rateable property.
(1E) If more than 2 people own rateable property in conjunction with each other, the owners are whichever 2 of those people who, being eligible under section 4.30(1)(a), are nominated as owners by all or a majority of those people.
Notes for this subsection:
In cases involving 1 or more bodies corporate, this subsection interacts with subsection (1G) in accordance with subsections (1GB), (1GC) and (1GD).
See also example 1 at the end of this section.
(1F) If more than 2 people occupy rateable property in conjunction with each other, the occupiers are whichever 2 of those people who, being eligible under section 4.30(1)(a), are nominated as occupiers by all or a majority of those people.
Notes for this subsection:
In cases involving 1 or more bodies corporate, this subsection interacts with subsection (1G) in accordance with subsections (1GB), (1GC) and (1GE).
See also example 2 at the end of this section.
(1G) If a body corporate owns or occupies rateable property, the owners or occupiers are 2 people each of whom —
(a) is an officer or employee of the body corporate; and
(b) is eligible under section 4.30(1)(a); and
(c) is nominated as an owner or occupier by the body corporate.
(1GA) In subsection (1G)(a) —
officer, in relation to a body corporate, means any of the following —
(a) a director of the body corporate or other member of its governing body;
(b) the chief executive officer, or equivalent, of the body corporate;
(c) the secretary, or equivalent, of the body corporate.
(1GB) Subsections (1GC) to (1GE) apply if —
(a) rateable property is owned or occupied by 2 or more persons in conjunction with each other; and
(b) 1 or more of those persons is a body corporate.
See examples 1 and 2 at the end of this section.
(1GC) Subsection (1G) must be applied to the body corporate or, if there is more than 1 body corporate, to each body corporate separately (before subsection (1E) or (1F) (as the case requires) is applied to the rateable property).
See examples 1 and 2 at the end of this section.
(1GD) In the case of ownership, for the purposes of subsection (1E), the people who own the rateable property in conjunction with each other —
(a) do not include the body corporate or the bodies corporate; but
(b) include any nominee of the body corporate, or of any of the bodies corporate, who is an owner of the rateable property under subsection (1G).
See example 1 at the end of this section.
(1GE) In the case of occupation, for the purposes of subsection (1F), the people who occupy the rateable property in conjunction with each other —
(a) do not include the body corporate or the bodies corporate; but
(b) include any nominee of the body corporate, or of any of the bodies corporate, who is an occupier of the rateable property under subsection (1G).
See example 2 at the end of this section.
(1H) A nomination under subsection (1E), (1F) or (1G) applies in respect of any and all other rateable property in the district that is owned or occupied by the people or body corporate concerned.
(2) Regulations may include provisions about how nominations under subsections (1) to (1H) are made and how long they remain in effect.
Examples for this section:
The following is an example of the way in which subsection (1E) interacts with subsection (1G) in accordance with subsections (1GB), (1GC) and (1GD).
(a) Rateable property is owned by 2 persons in conjunction with each other.
(b) Each of the persons is a body corporate.
(c) Under subsection (1G), each body corporate separately nominates 2 people to be owners of the rateable property.
(d) Under subsection (1E), the 4 people nominated under subsection (1G) nominate 2 of their number to be owners of the rateable property.
(e) The 2 people nominated under subsection (1E) may make an enrolment eligibility claim under section 4.32 on the basis of ownership of the rateable property.
The following is an example of the way in which subsection (1F) interacts with subsection (1G) in accordance with subsections (1GB), (1GC) and (1GE).
(a) Rateable property is occupied by 2 persons in conjunction with each other.
(b) Each of the persons is a body corporate.
(c) Under subsection (1G), each body corporate separately nominates 2 people to be occupiers of the rateable property.
(d) Under subsection (1F), the 4 people nominated under subsection (1G) nominate 2 of their number to be occupiers of the rateable property.
(e) The 2 people nominated under subsection (1F) may make an enrolment eligibility claim under section 4.32 on the basis of occupation of the rateable property.
[Section 4.31 amended: No. 19 of 2010 s. 51; No. 11 of 2023 s. 29; No. 47 of 2024 s. 32.]
4.32. How to claim eligibility to enrol under s. 4.30
(1) A person who considers that the person is eligible under section 4.30(1)(a) and (b) may make an enrolment eligibility claim in respect of the district or ward.
(2) The claim must —
(a) be made to the CEO in accordance with regulations; and
(b) without limiting paragraph (a), include, or be accompanied by, the following —
(i) any statutory declaration required under regulations;
(ii) any other prescribed information, document or item.
(3) A claim for enrolment as an occupier cannot be accepted unless —
(a) the claimant has had a right of occupation as referred to in section 4.31(1C) for the whole period of 12 months ending on the day before the day on which the claim is made; and
(b) if so prescribed (but without limiting paragraph (e)) — the claimant has paid rent in respect of the right of occupation referred to in paragraph (a) of at least the prescribed amount; and
(c) the claimant has a right of occupation as referred to in section 4.31(1C) for the whole period of 3 months beginning on the day on which the claim is made; and
(d) if so prescribed (but without limiting paragraph (e)) — the claimant is liable to pay rent in respect of the right of occupation referred to in paragraph (c) of at least the prescribed amount; and
(e) any prescribed requirements are met.
(3AA) Without limiting the application of section 4.31(1G) for the purposes of this Division, if the claimant is a nominee of a body corporate under section 4.31(1G), references to the claimant in subsection (3)(a) to (d) are to be read as references to the body corporate.
(3A) The right of occupation referred to in subsection (3)(a) —
(a) must be for —
(i) the rateable property to which the claim relates; or
(ii) another rateable property which is situated (wholly or partly) in the district;
and
(b) for different parts of the 12‑month period, may be for different rateable properties.
(3B) The right of occupation referred to in subsection (3)(c) must be for the rateable property to which the claim relates.
(3C) The requirements that may be prescribed for the purposes of subsection (3)(e) include (without limitation) the following —
(a) requirements relating to whether any person is or was enrolled, or is or was regarded under section 4.29(2) as being enrolled, as an elector for the Legislative Assembly in respect of a residence that is a relevant rateable property;
(b) other requirements relating to the current, past or future ownership, occupation or use of a relevant rateable property.
(3D) In subsection (3C) —
relevant rateable property means —
(a) the rateable property to which the claim relates; or
(b) another rateable property that is relevant to the claim under subsection (3A).
(3E) In subsections (3A) to (3D) —
(a) subject to paragraph (b), references to a rateable property include a portion of a rateable property as described in section 4.31(1D)(a) or (b); and
(b) if the claim relates to a portion of a rateable property as described in section 4.31(1D)(a) or (b) — references to the rateable property to which the claim relates are to that portion.
(4) Except as provided for in subsection (5A), within 14 days after receiving an enrolment eligibility claim, the CEO must —
(a) decide —
(i) whether the claimant is eligible under section 4.30(1)(a) and (b); and
(ii) if applicable — whether the requirements under subsection (3)(a) to (e) are met;
and
(b) accept or reject the claim accordingly.
(5A) If a claim is made before the close of enrolments as defined in section 4.39(1), but less than 14 days before the close of nominations as defined in section 4.49(a), the CEO is to decide whether to accept or reject the claim before the close of nominations.
(5) The CEO can make any inquiries needed in order to make a decision.
(6) The CEO is to record the decision in a register kept for that purpose in accordance with regulations and is to give written notice of the decision to the claimant without delay.
(7) If the claim is rejected the notice has to set out the CEO’s reasons for the decision.
(7A) Regulations may make provision in relation to how the CEO’s reasons are to be set out.
(8) A person who is dissatisfied with the CEO’s decision may appeal to the Electoral Commissioner in accordance with regulations and the Electoral Commissioner can confirm or reverse the decision.
(8A) Regulations may make provision in relation to the conduct of an appeal, including (without limitation) provision restricting, or authorising the Electoral Commissioner to restrict, the information, documents or items upon which an appellant can rely.
(9) On receipt of advice of the Electoral Commissioner’s decision on an appeal, the CEO is to take any action that is necessary to give effect to that decision.
[Section 4.32 amended: No. 64 of 1998 s. 20; No. 49 of 2004 s. 33; No. 17 of 2009 s. 14; No. 16 of 2019 s. 12; No. 11 of 2023 s. 30; No. 47 of 2024 s. 33 and 160.]
4.33. Claim of eligibility to enrol under s. 4.30, expiry of
(1) If an enrolment eligibility claim made by a person on the basis of ownership of rateable property within the electorate is accepted under section 4.32(4) or (8), the claim expires when the person ceases to own the property to which the claim relates.
(1A) If an enrolment eligibility claim made by a person on the basis of occupation of rateable property within the electorate is accepted under section 4.32(4) or (8), the claim expires —
(a) when the person ceases to occupy, as the case requires —
(i) the rateable property to which the claim relates; or
(ii) the portion of a rateable property, as described in section 4.31(1D)(a) or (b), to which the claim relates;
or
(b) if the claim has not already expired under paragraph (a) — on the day provided for under subsections (2A) to (3).
For the purposes of paragraph (a), the reference to the person ceasing to occupy must be construed in accordance with section 4.31(1C) and any regulations made for the purposes of section 4.31(1CA).
(2A) Unless subsection (2B) or (3) applies, if an enrolment eligibility claim made by a person on the basis of occupation of rateable property within the electorate is accepted under section 4.32(4) or (8), the claim expires on the day 6 months after the holding of the second ordinary elections of the local government after the claim is accepted.
(2B) If an enrolment eligibility claim on the basis of occupation of rateable property within the electorate is —
(a) made within the period of 56 days before the election day for ordinary elections of the local government; and
(b) accepted under section 4.32(4) or (8) before the election day,
the claim expires on the day 6 months after the holding of the third ordinary elections of the local government after the claim is accepted.
(2) For the purpose of subsection (2A) or (2B), an election that would have been held on a particular day but for the suspension of the council of the local government is to be regarded as having been held on that day.
(3) If the day on which an enrolment eligibility claim would expire under subsection (2A) or (2B) is less than 57 days before an election at which the occupier would be eligible to vote, the enrolment eligibility claim does not expire until the day after that election day.
[Section 4.33 amended: No. 64 of 1998 s. 21; No. 49 of 2004 s. 34; No. 17 of 2009 s. 15; No. 11 of 2023 s. 31.]
4.34. Accuracy of enrolment details to be maintained
The CEO is to ensure that the information about electors that is recorded from enrolment eligibility claims is maintained in an up to date and accurate form.
4.35. Decision that eligibility to enrol under s. 4.30 has ended
(1) The CEO may decide that a person is no longer eligible under section 4.30 to be enrolled to vote at elections for a district or ward if —
(a) the person has given the CEO written notice that the person is no longer eligible to be so enrolled; or
(b) the CEO is satisfied that the person is dead; or
(c) the CEO is satisfied that the person is no longer eligible to be so enrolled.
(2) The CEO is to give written notice to the person before making a decision under subsection (1)(c) and is to allow 28 days for the person to make submissions on the matter.
(3) If the CEO makes a decision under subsection (1)(c) the CEO is to give written notice of it to the person.
(4) If dissatisfied with the decision, the person may appeal to the Electoral Commissioner in accordance with regulations and the Electoral Commissioner can confirm or reverse the decision.
(4A) Regulations may make provision in relation to the conduct of an appeal, including (without limitation) provision restricting, or authorising the Electoral Commissioner to restrict, the information, documents or items upon which an appellant can rely.
(5) On receipt of advice of the Electoral Commissioner’s decision on an appeal, the CEO is to take any action that is necessary to give effect to that decision.
(6) If, after considering submissions made under subsection (2), the CEO decides that the person is still eligible under section 4.30 to be enrolled to vote at elections for the district or ward, the CEO is to give written notice of that decision to the person.
(7) The CEO is to record any decision under subsection (1) or (6) in the register referred to in section 4.32(6).
[Section 4.35 amended: No. 49 of 2004 s. 35; No. 11 of 2023 s. 32.]
Division 9 — Electoral process
Subdivision 1 — Stages of electoral process
4.36. Application and term used: election
(1) This Division applies to the following stages in the preparation for, and conduct of, an election —
(a) Stage 1 — Preparing the electoral roll;
(b) Stage 2 — Nomination of candidates;
(c) Stage 3 — After nominations close;
(d) Stage 4 — Preparing for voting;
(e) Stage 5 — Voting;
(f) Stage 6 — Counting the votes;
(g) Stage 7 — Declaring the result.
(2) In this Division the election referred to in subsection (1) is referred to as the election.
[Section 4.36 amended: No. 19 of 2010 s. 51.]
Subdivision 2 — Stage 1: Preparing the electoral roll
4.37. New roll for each election
(1) An electoral roll is to be prepared for the election.
(2) If the district is not divided into wards the same electoral roll can be used for the election of an elector mayor or president and the election of a councillor or councillors.
(3) A new electoral roll need not be prepared for the election if —
(a) it is an extraordinary election the election day for which is less than 100 days after the election day for another election; and
(b) the CEO, with the approval of the Electoral Commissioner, decides that the roll that was used for the earlier election is suitable for use at the extraordinary election.
[Section 4.37 amended: No. 49 of 2004 s. 36.]
4.38. What roll consists of
(1) The electoral roll for the election is to consist of a residents roll and an owners and occupiers roll but these can be consolidated for the purposes of the election in accordance with regulations.
(2) Regulations are to include provisions about the form of rolls (e.g. consolidated rolls, district rolls, ward rolls, combined ward rolls), the details that they are to contain and the arrangement of those details, and can provide for cases in which details may be omitted for the protection of an elector or an elector’s family.
[Section 4.38 amended: No. 47 of 2024 s. 160.]
4.39. Close of enrolments
(1) In order to be included on the electoral roll for the election a person must be an elector of the district or ward, as the case requires, as at 5 p.m. on the 57th day before election day (the close of enrolments).
(2) Statewide public notice of the time and date of the close of enrolments must be given on or after the 77th day, but not later than on the 63rd day, before election day by —
(b) the CEO in any other case.
(3) The notice is to give details of the steps that a person can take to become an elector before the close of enrolments [i.e. enrolling as an elector for the Legislative Assembly in respect of a residence in the district or ward (section 4.29) or making an enrolment eligibility claim in respect of the district or ward (sections 4.30 and 4.32)].
(4) If, under section 4.37(3), a previous electoral roll is going to be used for the election, no notice is to be published under subsection (2).
[Section 4.39 amended: No. 64 of 1998 s. 22; No. 16 of 2019 s. 13; No. 11 of 2023 s. 33.]
4.40. Residents roll
(1) Subject to section 4.37(3), on or before the 63rd day before election day, the CEO is to advise the Electoral Commissioner of the need to prepare a residents roll for the election.
(2) On or before the 43rd day before election day, the Electoral Commissioner is to prepare a residents roll for the election and forward a copy of it to the CEO.
(3) The residents roll is to include the names of all persons who were electors of the district or ward under section 4.29 at the close of enrolments (other than persons who will be under 18 years of age on election day) and is to be certified to that effect by the Electoral Commissioner.
[Section 4.40 amended: No. 66 of 2006 s. 9; No. 11 of 2023 s. 34.]
4.41. Owners and occupiers roll
(1) On or before the 43rd day before election day, the CEO is to prepare an owners and occupiers roll for the election.
(2) The owners and occupiers roll is to include the names of all persons who were electors of the district or ward under section 4.30 at the close of enrolments (other than persons who will be under 18 years of age on election day) and is to be certified to that effect by the CEO.
[Section 4.41 amended: No. 66 of 2006 s. 10; No. 11 of 2023 s. 35.]
4.42. Supply of rolls to returning officer, members and candidates
(1) The CEO is to ensure that the returning officer has as many copies of the residents and owners and occupiers rolls as the returning officer may require for the purposes of the election.
(2) Copies of rolls are to be supplied, free of charge, to members of the council and candidates in accordance with regulations.
(3) Regulations may require, or otherwise make provision in relation to, any of the following in relation to a copy of a roll supplied under subsection (1) or (2) (the supplied copy) —
(a) the destruction of the supplied copy;
(b) if the supplied copy is in electronic form — the deletion of the supplied copy;
(c) the making of a statutory declaration relating to the destruction or deletion of the supplied copy and the providing of the statutory declaration to the CEO or Electoral Commissioner.
(4) In subsection (3)(a) to (c), references to the supplied copy include —
(a) other copies of the roll, or other documents or information, derived (directly or indirectly and wholly or partly) from the supplied copy; and
(b) any documents or information containing details supplied under section 4.43(3b) relating to the roll.
[Section 4.42 amended: No. 11 of 2023 s. 36; No. 47 of 2024 s. 160.]
4.43. Correction of rolls
(1) On or before the 29th day before election day the returning officer is to delete from the owners and occupiers roll the name of any person whose name also appears on the residents roll.
(2) Subsection (1) does not apply if the rolls have been consolidated.
(3) The returning officer may alter the residents and owners and occupiers rolls —
(a) by including the name of an elector whose name has been omitted in error; or
(b) by omitting the name of a person whose name has been included in error; or
(c) in any other manner that may be necessary to correct the rolls.
(3a) If the returning officer is not the CEO, the returning officer may direct the CEO to make the alterations to the rolls described in subsections (1) and (3) and the CEO is to comply with that direction.
(3b) If a roll is altered under this section or section 4.44A after it has been supplied under section 4.42(2) to members of the council and candidates, the returning officer is to supply details of the alteration to those members and candidates in accordance with regulations.
(4) Regulations may provide for the making of applications to have rolls corrected, the certification of corrections and procedures to be followed in altering or correcting the rolls.
[Section 4.43 amended: No. 64 of 1998 s. 23; No. 49 of 2004 s. 37; No. 17 of 2009 s. 16; No. 11 of 2023 s. 37.]
4.44A. Alteration of rolls
(1) The returning officer may alter the owners and occupiers roll by including the name of an elector whose enrolment eligibility claim was made under section 4.32(1) before the close of enrolments, as defined in section 4.39(1), but accepted after that time.
(2) If the returning officer is not the CEO, the returning officer may direct the CEO to make an alteration to the roll described in subsection (1) and the CEO is to comply with that direction.
[Section 4.44A inserted No. 17 of 2009 s. 17.]
4.44. One enrolment per roll
An elector’s name is not to appear more than once on the same electoral roll.
4.45. Failure to comply with time limits as to preparation of rolls
(1) If anything required by this Act to be done in connection with the preparation of an electoral roll has not been done within the time, or for the period or before the date allowed or required under this Act, the Minister may, by notice published in the Gazette —
(a) direct it to be done; and
(b) adjust any time period or date fixed under this Act in order to enable it to be done.
(2) When an omission or non‑compliance is rectified in accordance with a notice under subsection (1), the electoral roll is validated as set out in the notice.
(3) A notice under this section has effect in accordance with its terms despite anything in this Act.
4.46. Fresh roll may be required
(1) If the Minister is satisfied that an electoral roll has not been properly prepared in accordance with this Division, the Minister may, by notice published in the Gazette, direct that a fresh electoral roll be prepared in accordance with directions set out in the notice.
(2) An electoral roll prepared under subsection (1) supersedes a previous electoral roll.
(3) A notice under this section has effect in accordance with its terms despite anything in this Act.
4.46A. Restrictions on use of information contained in rolls
enrolment information —
(a) means any information that is supplied to a person (person X) under section 4.42(2) or 4.43(3b); and
(b) includes any information that is derived (directly or indirectly and wholly or partly) from any information supplied to person X as referred to in paragraph (a);
supply includes disclose;
use includes supply.
(2) Person X must not use enrolment information, except for any of the following purposes —
(a) if applicable — a purpose connected with person X’s candidature in the election;
(b) if applicable — the performance of person X’s functions as a member of the council after the election;
(c) a prescribed purpose.
(3) Subsection (2)(a) to (c) do not permit the use of enrolment information for a commercial purpose.
(4) Person X must not use enrolment information for a commercial purpose.
(5) Person X must take all reasonable steps to ensure that any person to whom any information that is enrolment information is supplied (whether by person X or another person) —
(a) is informed, no later than the time of supply, that, as the case requires —
(i) the information was supplied to person X under section 4.42(2) or 4.43(3b); or
(ii) the information was derived (directly or indirectly and wholly or partly) from information supplied to person X under section 4.42(2) or 4.43(3b);
and
(b) does not use the information except for a purpose for which person X is permitted to use the information under subsection (2)(a), (b) or (c).
(6) Except as permitted under subsection (7), a person (person Y) must not use any information that is enrolment information if person Y has been informed or otherwise come to know, or has reasonable grounds for believing, that the information —
(a) was supplied to person X under section 4.42(2) or 4.43(3b); or
(b) was derived (directly or indirectly and wholly or partly) from information supplied to person X under section 4.42(2) or 4.43(3b).
(7) Person Y may use the information for a purpose for which person X is permitted to use the information under subsection (2)(a), (b) or (c).
(8) A person (person Z) must not use any information that is enrolment information for a commercial purpose if person Z has been informed or otherwise come to know, or has reasonable grounds for believing, that the information —
(a) was supplied to person X under section 4.42(2) or 4.43(3b); or
(b) was derived (directly or indirectly and wholly or partly) from information supplied to person X under section 4.42(2) or 4.43(3b).
(9) Without limiting section 4.97, a prosecution for either of the following may be commenced by the Electoral Commissioner or a person authorised by the Electoral Commissioner —
(a) an offence against this section;
(b) an offence against section 4.95 of attempting to commit an offence against this section.
(10) Nothing in this section prevents a person from doing anything to comply with regulations made for the purposes of section 4.42(3).
[Section 4.46A inserted: No. 11 of 2023 s. 38; amended: No. 47 of 2024 s. 161.]
Subdivision 3 — Stage 2: Nomination of candidates
4.47. Nominations, call for
(1) Statewide public notice calling for nominations of candidates for the election must be given on or after the 63rd day, but not later than on the 52nd day, before election day by —
(b) the returning officer in any other case.
(2) The notice calling for nominations is to specify —
(a) the kind of election to be held and the vacancy or vacancies to be filled; and
(b) the place where nominations may be delivered or sent (the nomination place); and
(c) the period within which nominations have to be delivered or sent; and
(d) any other arrangements made for the receipt by the returning officer of nominations.
[Section 4.47 amended: No. 16 of 2019 s. 14; No. 11 of 2023 s. 39.]
4.48. Candidate, eligibility of
(1) If the election is to fill an office or offices of councillor, a person can only be a candidate if the person was an elector of the district who, as at the close of enrolments, was qualified under section 2.19 to be elected as a member of the council and, at the time of nomination —
(a) the person is qualified under section 2.19 to be elected as a member of the council; and
(b) the person is not a candidate in another election to fill an office or offices of councillor on the council; and
(c) the person is not the holder of an office of member of a council other than an office the term of which will end on, or before, election day; and
(d) the person has completed the course of induction prescribed for the purposes of this subsection.
(2) If the election is to fill the office of elector mayor or president, a person can only be a candidate if —
(a) the person was an elector of the district who, as at the close of enrolments and at the time of nomination, was qualified under section 2.19 to be elected as a member of the council; and
(b) at the time of nomination, the person has completed the course of induction prescribed for the purposes of this subsection.
[Section 4.48 amended: No. 49 of 2004 s. 38(1) and (2); No. 17 of 2009 s. 18; No. 16 of 2019 s. 15.]
4.49. How to make an effective nomination
The nomination of a candidate is only effective if —
(a) a completed nomination paper, in the prescribed form, is received by the returning officer at the nomination place (by delivery, post, facsimile or other prescribed means) within the period beginning on the 51st day before election day and ending at 4 p.m. on the 44th day before election day (the close of nominations); and
(b) a profile of the candidate, prepared in accordance with regulations, accompanies the nomination paper; and
(ba) the nomination paper is accompanied by any prescribed information for publication under section 4.52; and
(bb) if the candidate is an occupier (as defined in section 2.19(2B)) — the nomination paper is accompanied by the following for the purpose of establishing that a requirement prescribed for the purposes of section 2.19(2A) is met or was met at the close of enrolments —
(i) any statutory declaration required under regulations;
(ii) any other prescribed information, document or item;
and
(c) evidence that the nomination is made by or with the consent of the candidate is given to the returning officer in a prescribed manner on or with the nomination paper or before the close of nominations; and
(d) payment of the prescribed deposit in a prescribed manner is received by the returning officer when the nomination paper is received or before the close of nominations.
[Section 4.49 amended: No. 49 of 2004 s. 39; No. 11 of 2023 s. 40.]
4.50. Deposits, how dealt with
A deposit is to be dealt with in accordance with regulations and is refundable in such circumstances as are set out in regulations.
4.51. Nominations, rejection of
(1) The returning officer is to reject a nomination if —
(a) it is not effective under section 4.49; or
(b) the candidate is not an elector of the district or was not an elector of the district as at the close of enrolments; or
(ba) as at the close of enrolments, the candidate was not qualified to be elected as a member of a council due to section 2.19(2); or
(bb) the candidate is not qualified, or was not qualified as at the close of enrolments, to be elected as a member of the council due to regulations made for the purposes of section 2.19(2A); or
(c) in the case of a candidate for election as a councillor, the candidate is not eligible to be a candidate because of section 4.48(1)(b) or (c).
(2) If none of subsection (1)(a), (b), (ba), (bb) or (c) apply the returning officer is to accept the nomination.
(3) Despite subsection (1)(a), if the profile of the candidate does not meet the requirements of regulations, the returning officer may amend the profile to meet those requirements and accept the nomination with the amended profile.
(4) If the returning officer rejects a nomination or amends a profile the returning officer is to give written notice of the decision, and the reasons for it, to the candidate without delay.
[Section 4.51 amended: No. 49 of 2004 s. 40; No. 11 of 2023 s. 41.]
4.52. Information about candidates to be published
relevant information, in relation to a candidate, means —
(a) the following details —
(i) the candidate’s name;
(ii) the name to appear on the ballot paper;
(iii) the ward (if any) in respect of which the candidate has nominated;
(iv) the office for which the candidate has nominated;
(v) the type of election in which the candidate has nominated;
and
(b) the profile that accompanied the candidate’s nomination paper under section 4.49(b) (as amended under section 4.51(3) if relevant); and
(c) any information that accompanied the candidate’s nomination paper under section 4.49(ba); and
(d) any other prescribed information.
(2) If a nomination is accepted, the returning officer must ensure that the candidate’s relevant information is published on the local government’s official website.
(3) A candidate’s relevant information must be kept on the local government’s official website —
(a) if section 4.55 or 4.57(2)(a) applies — until the result is declared under section 4.77; or
(b) otherwise — until 6 p.m. on election day.
(4) Regulations may do either or both of the following —
(a) make provision in relation to how a candidate’s relevant information must be published on the local government’s official website under this section;
(b) make provision for a candidate’s relevant information, or any part of a candidate’s relevant information, to be published, or otherwise made available to electors, in ways in addition to its publication on the local government’s official website under this section.
[Section 4.52 inserted: No. 11 of 2023 s. 42.]
4.53. Nominations, cancellation of
(1) The nomination of a candidate is cancelled if the candidate withdraws the nomination or dies before the close of nominations.
(2) The withdrawal of a nomination is only effective if —
(a) written notice of it is received by the returning officer at the nomination place (by delivery, post, facsimile or other prescribed means) before the close of nominations; and
(b) evidence that the withdrawal is made by or with the consent of the candidate is given to the returning officer in a prescribed manner on or with the withdrawal notice or before the close of nominations.
(3) If a nomination is cancelled, the returning officer must ensure —
(a) that the candidate’s relevant information (as defined in section 4.52(1)) is removed from the local government’s official website; and
(b) that notice of the cancellation is published on that website until the close of nominations.
(4) If a person who is a candidate in both an election to fill the office of mayor or president and an election to fill an office or offices of councillor on the council is elected unopposed under section 4.55 to fill the office of mayor or president, the nomination of the person as a candidate in the other election is to be regarded for the purposes of this Act as having been cancelled immediately before the close of nominations.
[Section 4.53 amended: No. 64 of 1998 s. 24(2); No. 11 of 2023 s. 43.]
Subdivision 4 — Stage 3: After nominations close
4.54. Nominations to be declared
(1) As soon as possible after nominations have closed the returning officer is to declare the nominations that have been accepted and have not been cancelled.
(2) The declaration is to be made at the nomination place in the presence of any candidates and other people who wish to attend.
4.55. Same number of candidates as vacancies
If, at the close of nominations, the number of candidates is equal to the number of offices to be filled at the election, the candidate or candidates is or are elected unopposed.
4.56. More candidates than vacancies
If, at the close of nominations, the number of candidates is greater than the number of offices to be filled at the election —
(a) lots are to be drawn in accordance with regulations for the positions of the candidates on the ballot papers for the election; and
(b) the returning officer is to begin preparing for voting by the electors.
4.57. Less candidates than vacancies
(1) If, at the close of nominations, there are no candidates for the office or offices to be filled at the election, an extraordinary election is to be held to fill the office or offices as if it or they had become vacant on the day after the close of nominations.
(2) If, at the close of nominations, the number of candidates is less than the number of offices to be filled at the election —
(a) the candidate or candidates is or are elected; and
(b) an extraordinary election is to be held to fill the remaining office or offices as if it or they had become vacant on the day after the close of nominations.
(3) If, at the close of nominations for an extraordinary election required under subsection (1) or (2) there are no candidates or the number of candidates is less than the number of offices to be filled at the election, the council may appoint* to any unfilled office a person who would be eligible to be a candidate for election to the office and who is willing to accept the appointment.
(4) A person appointed under subsection (3) is to be regarded as having been elected.
4.58. Death of candidate after close of nominations
(1) If section 4.56 applies and a candidate dies after the close of nominations but before the vacant office or offices is or are filled, the election is void and an extraordinary election is to be held to fill the office or offices as if it or they had become vacant on the death of the candidate.
(2) If a candidate who has been elected dies before the candidate’s term of office begins, an extraordinary election is to be held to fill the office to which the candidate had been elected as if it had become vacant on the death of the candidate.
[Section 4.58 amended: No. 47 of 2024 s. 160.]
4.59. Candidates, regulations about
Regulations may provide for —
(a) the provision of information as to gifts made to or for the benefit of candidates; and
(b) the control of the electioneering activities and practices of candidates; and
(c) the provision of information as to expenditure incurred in relation to an election by or for the benefit of candidates.
[Section 4.59 amended: No. 17 of 2009 s. 19.]
Subdivision 5 — Stage 4: Preparing for voting
4.60. Voting by electors
If section 4.56 applies and the election is not void under section 4.58(1), the electors may vote to elect a candidate or candidates to fill the vacant office or offices.
4.61. Choice of methods of conducting election
(1) The election can be conducted as a —
postal election which is an election at which the method of casting votes is by posting or delivering them to an electoral officer on or before election day; or
voting in person election which is an election at which the principal method of casting votes is by voting in person on election day but at which votes can also be cast in person before election day, or posted or delivered, in accordance with regulations.
(2) The local government may decide* to conduct the election as a postal election.
(3) A decision under subsection (2) has no effect if it is made after the 80th day before election day unless a declaration has already been made in respect of an election for the local government and the declaration is in respect of an additional election for the same local government.
(4) A decision under subsection (2) has no effect unless it is made after a declaration is made under section 4.20(4) that the Electoral Commissioner is to be responsible for the conduct of the election or in conjunction with such a declaration.
(5) A decision made under subsection (2) on or before the 80th day before election day cannot be rescinded after that 80th day.
(6) For the purposes of this Act, the poll for an election is to be regarded as having been held on election day even though the election is conducted as a postal election.
(7) Unless a resolution under subsection (2) has effect, the election is to be conducted as a voting in person election.
[Section 4.61 amended: No. 64 of 1998 s. 25; No. 49 of 2004 s. 16(4) and 32(5).]
4.62. Polling places required
(1) For every election in a district or a ward the returning officer is to ensure that there will be at least one polling place in the district that is open between 8 a.m. and 6 p.m. on election day.
(2) For a voting in person election in a district that is divided into wards, the returning officer is to ensure that there will be at least one polling place in each ward that is open between 8 a.m. and 6 p.m. on election day unless the returning officer determines that, in respect of a particular ward, it is not necessary or not practicable —
(a) to open a polling place in that ward on election day; or
(b) for there to be a polling place in that ward that is open all the time between 8 a.m. and 6 p.m. on election day.
(3) For a voting in person election in a ward the returning officer is to ensure that there will be at least one polling place in the ward that is open between 8 a.m. and 6 p.m. on election day unless the returning officer determines that it is not necessary or not practicable —
(a) to open a polling place in that ward on election day; or
(b) for there to be a polling place in that ward that is open all the time between 8 a.m. and 6 p.m. on election day.
4.63. Presiding and other officers, appointment of
(1) The electoral officers appointed by the returning officer are to include a presiding officer and one or more other electoral officers for each polling place.
(2) The returning officer may appoint himself or herself to be the presiding officer for a polling place.
4.64. Public notice about election
(1) As soon as practicable after preparations for the election have been completed (but not later than on the 26th day before election day) Statewide public notice about the election must be given in accordance with regulations including details of how, when and where the election will be conducted and who the candidates are.
(1A) The Statewide public notice must be given by —
(b) the returning officer in any other case.
(2) The Statewide public notice is called the election notice.
[Section 4.64 amended: No. 16 of 2019 s. 17; No. 11 of 2023 s. 44.]
Subdivision 6 — Stage 5: Voting
4.65. Right to vote
(1) An elector may vote at the election if the elector’s name —
(a) is on the electoral roll used for the election; or
(b) was omitted in error from the electoral roll used for the election.
(2) If an elector’s name has changed, the reference in subsection (1) to the elector’s name includes a reference to the former name.
(3) A person who is not an elector, or who is under 18 years of age on election day, cannot vote at the election even if the person’s name is on the electoral roll used for the election.
[Section 4.65 amended: No. 66 of 2006 s. 11.]
4.66. One vote for each elector
An elector is not to vote more than once at the election.
4.67. Where to vote in person
In a voting in person election —
(a) a vote (absent vote) may be cast before election day at the offices of another local government in such circumstances as are set out in regulations;
(b) a vote (early vote) may be cast before election day at the local government’s offices, or at a place notified for that purpose in the election notice, in such circumstances as are set out in regulations;
(c) a vote in person on election day may be cast at a polling place appointed for the election.
4.68. When to vote
(1) In a voting in person election —
(a) an elector may cast an early or absent vote as soon as the election notice is given;
(b) an early vote may be cast not later than 4 p.m. on the day before election day;
(c) an absent vote may be cast not later than 4 p.m. on the 4th day before election day;
(d) a postal vote may be posted or delivered at any time after the relevant voting papers are issued but can only be accepted if it is received by an electoral officer in accordance with regulations not later than 6 p.m. on election day;
(e) a vote in person on election day may be cast between 8 a.m. and 6 p.m.
(2) In a postal election a vote may be posted or delivered at any time after the relevant voting papers are issued but can only be accepted if it is received by an electoral officer in accordance with regulations not later than 6 p.m. on election day.
4.69. How to vote
(1) This section sets out how votes are cast at an election.
(2) An elector must cast 1 first‑preference vote by writing on the ballot paper the numeral 1 in the square opposite the name of the candidate for whom the elector votes as the elector’s first preference.
(3) If there are 2 or more other candidates, the elector may cast preference votes by writing consecutive numerals from 2 (without repetition of any numeral) in the squares opposite the names of other candidates to indicate the order of the elector’s preference for those other candidates.
(4) The elector —
(a) may cast preference votes under subsection (3) for 1 or more of the other candidates; and
(b) does not have to cast preference votes for all of the other candidates.
(5) Regulations made for the purposes of section 4.71(1)(a) must provide for ballot papers to have squares opposite the names of candidates for the purpose of giving effect to subsections (2) and (3).
[Section 4.69 inserted: No. 11 of 2023 s. 45.]
4.70. Presiding officer to maintain order at polling place
(1) The presiding officer is in charge of a polling place and has power to take any reasonable steps to ensure that voting is conducted in a peaceful and orderly manner.
(2) Without limiting subsection (1) the presiding officer may remove or exclude from the polling place any person who is disrupting or may disrupt the poll.
(3) For the purposes of this section the presiding officer may call on a member of the Police Force for assistance and a member of the Police Force is to render assistance if called on to do so.
4.71. Regulations about voting procedure
(1) Regulations are to include provisions about —
(a) the form, content and printing of voting papers; and
(b) measures to ensure that, so far as practicable, all electors who can vote are issued with voting papers for postal votes for a postal election; and
(c) applying for and issuing postal votes for a voting in person election (and may provide for applications to have effect for successive elections); and
(d) completing, transmitting and dealing with voting papers for postal votes; and
(e) applying for, issuing, completing, and dealing with voting papers for absent votes and early votes; and
(f) issuing, completing and dealing with ballot papers for votes cast in person on election day; and
(g) measures to be taken to ensure that ballot papers are marked in secret; and
(h) the design, preparation, use, supervision and security of ballot boxes for the receipt of ballot papers; and
(i) the assistance that may be given to electors who are unable to vote without assistance; and
(j) the appointment of scrutineers for candidates and the rights and obligations of scrutineers; and
(k) the adjournment of the poll in the case of riot, violence or other cause; and
(l) any other matter relating to the casting of votes at elections or to votes so cast.
voting papers means ballot papers and any other forms, declarations, envelopes, candidates’ profiles or other papers associated with ballot papers.
Subdivision 7 — Stage 6: Counting the votes
4.72. Outcome of election to be determined
(1) As soon as is practicable after voting has finished the returning officer is to arrange for the votes to be counted and ascertain the result of the election.
(2) The votes are to be counted at the place or places notified for the purpose in the election notice or, if that is impracticable because of riot, violence or other cause, at any other place appointed by the returning officer.
(3) Subject to any directions of the returning officer, candidates and scrutineers may be present when the votes are counted.
(4) The counting of votes may involve re‑counts of votes under section 4.72A.
[Section 4.72 amended: No. 11 of 2023 s. 46.]
4.72A. Re‑counts of votes
(1) The returning officer may arrange for some or all of the votes to be re‑counted if, and to the extent that, the returning officer considers appropriate.
(2) The returning officer may arrange a re‑count under subsection (1) —
(a) on the returning officer’s own initiative; or
(b) on the written request of a candidate or scrutineer, which must —
(i) be made before the returning officer declares the result of the election under section 4.77; and
(ii) include the candidate’s or scrutineer’s reasons for the request.
(3) Regulations may prescribe circumstances in which the returning officer must arrange for some or all of the votes to be re‑counted to the extent prescribed.
(4) In the course of a re‑count under subsection (1) or (3), the returning officer may review a decision to accept or reject a ballot paper.
(5) A re‑count under subsection (1) or (3) must be conducted before the returning officer declares the result of the election under section 4.77.
[Section 4.72A inserted: No. 11 of 2023 s. 47.]
4.73. Procedure when person is candidate in 2 elections
(1) If the election is to fill the office of mayor or president and any candidate is also a candidate in an election to fill an office or offices of councillor on the council held on the same election day, the result of the election for mayor or president is to be ascertained before the result of the other election is ascertained.
(2) If the election is to fill an office or offices of councillor and any candidate has been elected to fill the office of mayor or president on the council at an election held on the same election day, that candidate cannot be elected to an office of councillor.
(3) When subsection (2) applies, if the number of other candidates is equal to the number of offices to be filled at the election —
(a) the other candidate or candidates is or are elected unopposed; and
(b) the votes are to be counted —
(i) only if 2 or more of the councillors elected at that election will retire on different days; and
(ii) only for the purpose of applying the provisions of Schedule 4.2 about the order of retirement of councillors.
(4) When subsection (2) applies, if the number of other candidates is greater than the number of offices to be filled at the election, the counting of votes is to proceed.
(5) When votes are counted under subsection (3)(b) or (4) —
(a) if a ballot paper contains a first‑preference vote for the candidate who has been elected to the office of mayor or president —
(i) the first‑preference vote must be disregarded; and
(ii) the ballot paper must be treated as if any numeral indicating a preference for another candidate had been altered accordingly;
and
(b) if a ballot paper contains a preference vote for the candidate who has been elected mayor or president —
(i) the preference vote must be disregarded; and
(ii) the ballot paper must be treated as if any numeral indicating a subsequent preference for another candidate had been altered accordingly.
(6) In subsection (5) —
preference vote has the meaning given in Schedule 4.1 clause 1.
[Section 4.73 amended: No. 64 of 1998 s. 26; No. 11 of 2023 s. 48.]
4.73A. Procedure when councillor whose term is not expiring is candidate for mayor or president
(a) the election is to fill the office of mayor or president; and
(b) any candidate is a councillor on the council whose office would become vacant under section 2.32(1)(f) were they to be elected mayor or president; and
(c) on the same election day —
(i) if the district is not divided into wards — there is an election to fill an office or offices of councillor on the council; or
(ii) if the district is divided into wards — there is an election to fill an office or offices of councillor on the council for the ward for which the candidate referred to in paragraph (b) is a councillor.
(2) The result of the election for mayor or president must be ascertained before the result of the election referred to in subsection (1)(c)(i) or (ii).
[Section 4.73A inserted: No. 11 of 2023 s. 49; amended: No. 47 of 2024 s. 34.]
4.74. How votes counted (Sch. 4.1)
The votes are to be counted, and the result of the election ascertained, in accordance with Schedule 4.1.
4.75. Acceptance and rejection of ballot papers
(1) The returning officer may accept a ballot paper that, in the returning officer’s opinion, clearly indicates the elector’s wishes as required or authorised by section 4.69 even if the ballot paper is not marked precisely in accordance with section 4.69.
(2) In accepting a ballot paper under subsection (1) the returning officer, if appointed under section 4.20(4), is to have regard and give effect to any directions or guidelines given by the Electoral Commissioner.
(3) Regulations may do either or both of the following —
(a) without limiting the returning officer’s discretion to accept a ballot paper under subsection (1) —
(i) prescribe circumstances in which the returning officer must accept a ballot paper even if the ballot paper is not marked precisely in accordance with section 4.69; and
(ii) prescribe how the returning officer must treat a ballot paper when counting votes if the ballot paper was accepted under regulations made for the purposes of subparagraph (i);
(b) prescribe circumstances in which the returning officer must reject a ballot paper (despite subsection (1) or otherwise).
[Section 4.75 amended: No. 11 of 2023 s. 50; No. 47 of 2024 s. 160.]
4.76. Review of decisions on ballot papers
Unless a Court of Disputed Returns decides otherwise, the returning officer’s decision about the acceptance or rejection of a ballot paper is final but this does not prevent the returning officer from reviewing the decision in the course of a re‑count of votes as referred to in section 4.72A(4).
[Section 4.76 amended: No. 11 of 2023 s. 51.]
Subdivision 8 — Stage 7: Declaring the result
4.77. Returning officer to declare result
As soon as is practicable after the result of the election is known under section 4.55, 4.57 or 4.72, the returning officer is to declare and give notice of the result in accordance with regulations.
See Schedule 4.1A clause 19 and Schedule 4.1B clause 1(5) for further provisions relating to declarations and notices under this section.
[Section 4.77 amended: No. 11 of 2023 s. 52.]
4.78. Order of retirement of councillors
(1) If the election is to fill an office or offices of councillor, the returning officer, when declaring the result, is to declare the term for which and, if necessary, the vacant office to which, each successful candidate is elected.
(2) For the purpose of subsection (1) the returning officer is to make any determination that is necessary to give effect to the provisions of Schedule 4.2 about the order of retirement of councillors.
4.79. Report to Minister
(1) A returning officer is to provide the Minister with a report as to the result of the election.
(2) The report under subsection (1) —
(a) is to be provided within the prescribed period; and
(b) is to deal with the matters prescribed for the purposes of subsection (1).
(3) On being directed by the Minister to do so the returning officer, if appointed under section 4.20(1) or (2), is to provide the Minister with a report on the conduct of the election dealing with the matters set out in the direction or prescribed for the purposes of this subsection.
(4) If the Electoral Commissioner is responsible for the conduct of the election, the Electoral Commissioner may provide the Minister with a report on the conduct of the election.
Division 10 — Validity of elections
4.80. Complaints about result of election
(1) A person who is dissatisfied with the result of an election or with the way in which an election was conducted may make an invalidity complaint.
(2) In this Division —
invalidity complaint means a complaint —
(a) that the election is invalid; or
(b) that another person should be declared elected; or
(c) that the term of office of a councillor should be longer or shorter than the term determined by the returning officer; or
(d) that a declaration made under Schedule 4.1A clause 19 or Schedule 4.1B clause 1(5) by the returning officer should be changed.
[Section 4.80 amended: No. 11 of 2023 s. 53.]
4.81. Complaints to go to Court of Disputed Returns
(1) An invalidity complaint is to be made to a Court of Disputed Returns, constituted by a magistrate, but can only be made within 28 days after notice is given of the result of the election.
(2) Regulations may provide for the way in which an invalidity complaint can be made to a Court of Disputed Returns, the way in which the court can deal with it and the declarations and orders that the court can make.
(3) If the court declares the election to have been invalid —
(a) the election is null and void; and
(b) any office of member filled at the election is vacant; and
(ba) any declaration made under Schedule 4.1A clause 19 or Schedule 4.1B clause 1(5) by the returning officer is of no effect; and
(bb) any office of member filled under Schedule 4.1A or 4.1B by a candidate in the election is vacant; and
(c) the court is to fix a day for holding any poll needed for a fresh election; and
(d) the returning officer is to prepare for, conduct and ascertain and declare the result of the fresh election.
(4) If the court declares that a person (candidate A) ought to have been elected in place of another person (candidate B) —
(a) candidate B is not to act as a member of the council; and
(b) candidate A is to be regarded as having been elected; and
(c) notice of candidate A’s election is to be published in accordance with regulations.
(5) If the court declares that a declaration under Schedule 4.1A clause 19 or Schedule 4.1B clause 1(5) (the original declaration) should be changed —
(a) the court may make a declaration to replace the original declaration; and
(b) if the court makes a declaration under paragraph (a), the declaration —
(i) is to be regarded as a declaration under Schedule 4.1A clause 19 or Schedule 4.1B clause 1(5) (as the case requires); and
(ii) must be published in accordance with regulations;
and
(c) the court may otherwise make any orders that the court thinks fit, including (without limitation) any of the following —
(i) an order that a person who has been elected to the council under Schedule 4.1A or 4.1B is not to act as a member of the council;
(ii) an order that a person is to be regarded as having been elected to the council under Schedule 4.1A or 4.1B;
(iii) an order that Schedule 4.1A or 4.1B be applied or reapplied, with any modifications specified in the order, in relation to a vacancy.
[Section 4.81 amended: No. 11 of 2023 s. 54.]
4.82. No appeal
There is no appeal from a decision of a Court of Disputed Returns.
4.83. Validity of election
An election is not invalid because of —
(a) a failure to do something in connection with the election within the time, or for the period or before the date allowed or required under this Act, so long as the failure does not affect the result of the election; or
(b) an irregularity or defect in the appointment or authorisation of an electoral officer; or
(c) a formal omission, irregularity or defect in a document, declaration, publication or other thing that a person has made, issued or done in good faith.
4.84. Retention and availability of electoral papers, regulations about
Regulations may include provisions about —
(a) the collection, retention and disposal of papers used in or for the purposes of an election; and
(b) the purposes for which and circumstances in which those papers may be inspected.
Division 11 — Electoral offences
4.85. Bribery and undue influence, offence
(1) A person who —
(a) promises, offers or suggests a reward for, or on account of, or to induce, electoral conduct or a promise of electoral conduct; or
(b) gives, takes or seeks a reward for, or on account of, electoral conduct or a promise of electoral conduct,
(2) A person who —
(a) threatens, offers or suggests detriment for, or on account of, or to induce, electoral conduct or a promise of electoral conduct; or
(b) uses, causes, inflicts or procures detriment for or on account of, electoral conduct; or
(c) interferes with the free exercise of the franchise of an elector,
(3) The making of a declaration of public policy or a promise of public action does not give rise to an offence against this section.
detriment means violence, injury, punishment, damage, loss or disadvantage;
electoral conduct means —
(a) candidature at an election; or
(b) withdrawal of candidature from an election; or
(c) a vote, or an omission to vote, at an election; or
(d) support of, or opposition to, a candidate for election;
reward means a reward in the form of valuable consideration or any other recompense, benefit or advantage.
[Section 4.85 amended: No. 47 of 2024 s. 161.]
4.86. Breach or neglect by officers, offence
An electoral officer who —
(a) attempts to influence the vote of an elector, or, except by recording that vote, the result of an election; or
(b) discloses, except under compulsion of law, knowledge officially acquired concerning the vote of an elector; or
(c) refuses or wilfully neglects to discharge a duty imposed under this Part or otherwise contravenes a provision of this Part,
Penalty: imprisonment for 12 months and a fine of $12 000.
[Section 4.86 amended: No. 47 of 2024 s. 161.]
4.87. Printing and publication of electoral material
(1) A person who prints, publishes or distributes electoral material or causes electoral material to be printed, published or distributed, commits an offence unless —
(a) in the case of all electoral material, the name and address (not being a post‑office box) of the person who authorised the electoral material appears at the end of the electoral material; and
(b) in the case of electoral material that is printed otherwise than in a newspaper, the name and business address of the printer appears at the end of the electoral material.
(2) Subsection (1) does not apply to electoral material on an item included in a prescribed class of items.
electoral material means any advertisement, handbill, pamphlet, notice, letter or article that is intended or calculated to affect the result of an election but does not include an advertisement in a newspaper announcing the holding of a meeting;
print includes photocopy or reproduce by any means.
[Section 4.87 amended: No. 49 of 2004 s. 41; No. 47 of 2024 s. 161.]
4.88. Offence to print, publish or distribute misleading or deceptive material
(1) A person must not, during the relevant period in relation to an election —
(a) print, publish or distribute deceptive material; or
(b) cause deceptive material to be printed, published or distributed.
(2) It is a defence to a charge under subsection (1) to prove that the accused person did not know, and could not reasonably have been expected to know, that the material was likely to mislead or deceive an elector in relation to the casting of the elector’s vote.
deceptive material means any matter or thing that is likely to mislead or deceive an elector in relation to the casting of the elector’s vote at the election;
print includes photocopy or reproduce by any means;
publish includes publish by radio or television;
relevant period means the period commencing when notice calling for nominations for the election is published and ending at 6 p.m. on election day.
[Section 4.88 amended: No. 26 of 2016 s. 10; No. 47 of 2024 s. 161.]
4.89. Canvassing in or near polling places, offence
(1) If, on any day on which polling for an election takes place, a person —
(a) canvasses for votes; or
(b) solicits the vote of an elector; or
(c) induces an elector not to vote for a particular candidate; or
(d) induces an elector not to vote at the election,
in a polling place or within 6 m from the entrance to a polling place, that person commits an offence.
(2) It is a defence to a charge under subsection (1) to prove that the accused person was within 6 m of the entrance to a polling place with the approval of the presiding officer.
[Section 4.89 amended: No. 64 of 1998 s. 27; No. 47 of 2024 s. 161.]
4.90. False statements, offence
(1) A person who makes a statement in an application, form, nomination, return, declaration or certificate or other document under this Part relating to an election, or in answer to a question authorised to be asked under this Part, knowing the statement to be false, commits an offence.
(2) A person who induces another person to commit an offence against subsection (1) also commits an offence against subsection (1).
[Section 4.90 amended: No. 47 of 2024 s. 161.]
4.91. Offences relating to nomination papers, ballot papers and ballot boxes
(1) A person who —
(a) forges or fraudulently defaces or destroys a ballot paper or nomination paper; or
(b) fraudulently puts a ballot paper into a ballot box; or
(c) wilfully destroys, takes, opens or otherwise interferes with any ballot box or ballot papers without authority; or
(d) personates any elector,
(2) A person who —
(a) supplies a ballot paper without authority; or
(b) is in possession of an unauthorised ballot paper; or
(c) votes more than once in an election; or
(d) marks a ballot paper without authority,
(3) A person who fraudulently leaves a polling place with a ballot paper commits an offence.
[Section 4.91 amended: No. 47 of 2024 s. 161.]
4.92. Offences relating to postal votes
(1) A candidate in an election, or a person authorised to act on behalf of a candidate in connection with an election, who, in relation to the election —
(a) applies undue influence or pressure on an elector to apply for a postal vote; or
(b) interferes with an elector while the elector is applying for a postal vote; or
(c) takes custody of an envelope in which there is a postal vote; or
(d) causes any other person, not being the elector whose vote is in the envelope, to do anything referred to in paragraph (c),
(2) For the purposes of the application of subsection (1) to a person authorised to act on behalf of a candidate in connection with an election, it does not matter if the person was not authorised to do the act referred to in subsection (1)(a), (b), (c) or (d).
[Section 4.92 amended: No. 47 of 2024 s. 35.]
4.93. Interference with electors: infringement of secrecy, offence
(a) unlawfully communicates with, assists or interferes with an elector while the elector is marking a ballot paper; or
(b) unlawfully looks at or becomes acquainted with the vote of an elector; or
(c) discloses the vote of an elector,
Penalty: imprisonment for 12 months and a fine of $12 000.
[Section 4.93 amended: No. 47 of 2024 s. 161.]
4.94. Other electoral offences
(a) when in a polling place on a day on which polling is taking place, misconducts himself or herself or fails to obey the reasonable instructions of an electoral officer; or
(b) re‑enters a polling place without permission after being removed from the polling place under section 4.70; or
(c) not being a candidate in an election, canvasses at the election while the person is an employee of the local government in question; or
(d) wilfully defaces, mutilates, destroys or removes a notice, list or other document which an electoral officer, acting within the scope of the electoral officer’s authority, has exhibited or caused to be exhibited; or
(e) bets on the result of an election,
Penalty: a fine of $5 000.
[Section 4.94 amended: No. 47 of 2024 s. 160 and 161.]
4.95. Offences, attempts to commit
An attempt to commit an offence against this Part is an offence punishable as if the offence had been committed.
4.96. Investigation of electoral misconduct
(1) The Electoral Commissioner or the returning officer may investigate whether misconduct, malpractice or maladministration has occurred in relation to an election.
(2) An investigation can be carried out on the initiative of the Electoral Commissioner or returning officer or in response to a complaint or information received from any other person (including a candidate).
(3) For the purposes of an investigation the Electoral Commissioner or returning officer has the same powers, and protection from liability, as an authorised officer has under Part 8B Division 6.
(4) Section 8B.57 applies in relation to a direction given by the Electoral Commissioner or returning officer in the course of an investigation.
(5) After carrying out an investigation under this section the Electoral Commissioner may provide the Minister with a report on the investigation.
(6) After carrying out an investigation under this section the returning officer is to provide the Minister with a report on the investigation.
(7) This section has effect in addition to Parts 8, 8A and 8B and, except as provided in those Parts, does not prevent or affect the exercise of any power under those Parts.
[Section 4.96 amended: No. 47 of 2024 s. 36.]
4.97. Prosecutions
(1) A prosecution for an offence against this Part may be commenced by the returning officer or any person referred to in section 9.24(1).
(2) If the returning officer commences a prosecution for an offence against this Part —
(a) the local government is to pay any expenses incurred by, and any costs awarded against, the returning officer in connection with the proceedings; and
(b) the returning officer is to pay to the local government any fees or costs paid to the returning officer in respect of the proceedings.
[Section 4.97 inserted: No. 84 of 2004 s. 53.]
4.98. Criminal Code not to apply
Chapter XIV of The Criminal Code does not apply to elections held under this Act.
Division 12 — Polls and referendums
4.99. Election procedures to apply to polls and referendums
(1) To the extent to which the provisions of this Part are capable of being applied with or without adaptation in respect of polls under another Part, those provisions apply with or without adaptation in respect of those polls.
(2) Despite subsection (1), regulations may make necessary or convenient provisions in relation to preparing for, conducting and ascertaining the result of polls under another Part of this Act and for ensuring the purity of the conduct of them.
(3) Regulations may make necessary or convenient provisions in relation to preparing for, conducting and ascertaining the result of polls and referendums held by local governments, whether under local laws or otherwise, and for ensuring the purity of the conduct of them.
(4) Without limiting subsection (2) or (3), regulations may provide for the electoral rolls that are to be used, or prepared and used, for polls and referendums.
Part 5 — Administration
This Part deals with —
(a) council meetings, committees and their meetings and electors’ meetings; and
(b) the employment of persons by local governments and matters relating to local government employees; and
(c) annual reports and plans; and
(d) the disclosure of financial interests in matters affecting local government decisions and in returns; and
(e) public access to local government information; and
(f) the limitation of the payment of fees, expenses and allowances to council and committee members, mayors and presidents; and
(g) codes of conduct.
[Notes to Part 5 amended: No. 49 of 2004 s. 42(1).]
5.1. Term used: committee
committee means a committee of a council.
5.2. Administration of local governments
The council of a local government is to ensure that there is an appropriate structure for administering the local government.
Division 2 — Council meetings, committees and their meetings and electors’ meetings
Subdivision 1 — Council meetings
5.3. Ordinary and special council meetings
(1A) A council deliberates, and makes its decisions, at meetings held in accordance with this Act.
(1) A council is to hold ordinary meetings and may hold special meetings.
(2) Ordinary meetings are to be held not more than 3 months apart.
(3) If a council fails to meet as required by subsection (2) the CEO is to notify the Minister of that failure.
[Section 5.3 amended: No. 47 of 2024 s. 37.]
5.4. Calling council meetings
An ordinary or a special meeting of a council is to be held —
(a) if called for by either —
(i) the mayor or president; or
(ii) at least 1/3 of the councillors,
in a notice to the CEO setting out the date and purpose of the proposed meeting; or
(b) if so decided by the council.
5.5. Convening council meetings
(1) The CEO is to convene an ordinary meeting by giving each council member at least 72 hours’ notice of the date, time and place of the meeting and an agenda for the meeting.
(2) The CEO is to convene a special meeting by giving each council member notice, before the meeting, of the date, time, place and purpose of the meeting.
5.6. Who presides at council meetings
(1) The mayor or president is to preside at all meetings of the council.
(2) If the circumstances mentioned in section 5.34(a) or (b) apply the deputy mayor or deputy president may preside at a meeting of the council in accordance with that section.
(3) If the circumstances mentioned in section 5.34(a) or (b) apply and —
(b) the deputy mayor or deputy president is not available or is unable or unwilling to perform the functions of mayor or president,
then, the council is to choose one of the councillors present to preside at the meeting.
5.7. Minister may reduce number for quorum and certain majorities
(1) The Minister may reduce the number of offices of member required for a quorum at a council meeting specified by the Minister if there would not otherwise be a quorum for the meeting.
(2) The Minister may reduce the number of offices of member required at a council meeting to make a decision specified by the Minister if the decision is one which would otherwise be required to be made by an absolute majority and a sufficient number of members would not otherwise be present at the meeting.
Subdivision 2 — Committees and their meetings
5.8. Establishment of committees
A local government may establish* committees of 3 or more persons to assist the council.
A local government may delegate powers and duties to a committee under section 5.16.
[Section 5.8 inserted: No. 47 of 2024 s. 38.]
5.9. Committees, types of
other person means a person who is not a council member or an employee.
(2) A committee is to comprise —
(a) council members only; or
(b) council members and employees; or
(c) council members, employees and other persons; or
(d) council members and other persons; or
(e) employees and other persons; or
(f) other persons only.
5.10. Appointment of committee members
(1) A committee is to have as its members —
(a) persons appointed* by the local government to be members of the committee (other than those referred to in paragraph (b)); and
(b) persons who are appointed to be members of the committee under subsection (4) or (5).
(2) At any given time each council member is entitled to be a member of at least one committee referred to in section 5.9(2)(a) or (b) and if a council member nominates himself or herself to be a member of such a committee or committees, the local government is to include that council member in the persons appointed under subsection (1)(a) to at least one of those committees as the local government decides.
(3) Section 52 of the Interpretation Act 1984 applies to appointments of committee members other than those appointed under subsection (4) or (5) but any power exercised under section 52(1) of that Act can only be exercised on the decision of an absolute majority of the council.
(4) If at a meeting of the council a local government is to make an appointment to a committee that has or could have a council member as a member and the mayor or president informs the local government of the mayor or president’s wish to be a member of the committee, the local government is to appoint the mayor or president to be a member of the committee.
(5) If at a meeting of the council a local government is to make an appointment to a committee that has or will have an employee as a member and the CEO informs the local government of the CEO’s wish —
(a) to be a member of the committee; or
(b) that a representative of the CEO be a member of the committee,
the local government is to appoint the CEO or the CEO’s representative, as the case may be, to be a member of the committee.
[Section 5.10 amended: No. 16 of 2019 s. 18; No. 47 of 2024 s. 160.]
5.11A. Deputy committee members
(1) The local government may appoint* a person to be a deputy of a member of a committee and may terminate such an appointment* at any time.
(2) A person who is appointed as a deputy of a member of a committee is to be —
(a) if the member of the committee is a council member — a council member; or
(b) if the member of the committee is an employee — an employee; or
(c) if the member of the committee is not a council member or an employee — a person who is not a council member or an employee; or
(d) if the member of the committee is a person appointed under section 5.10(5) — a person nominated by the CEO.
(3) A deputy of a member of a committee may perform the functions of the member when the member is unable to do so by reason of illness, absence or other cause.
(4) A deputy of a member of a committee, while acting as a member, has all the functions of and all the protection given to a member.
[Section 5.11A inserted: No. 17 of 2009 s. 20.]
5.11. Committee membership, tenure of
(1) Where a person is appointed as a member of a committee under section 5.10(4) or (5), the person’s membership of the committee continues until —
(a) the person no longer holds the office by virtue of which the person became a member, or is no longer the CEO, or the CEO’s representative, as the case may be; or
(b) the person resigns from membership of the committee; or
(c) the committee is disbanded; or
(d) the next ordinary elections day,
(2) Where a person is appointed as a member of a committee other than under section 5.10(4) or (5), the person’s membership of the committee continues until —
(a) the term of the person’s appointment as a committee member expires; or
(b) the local government removes the person from the office of committee member or the office of committee member otherwise becomes vacant; or
(c) the committee is disbanded; or
(d) the next ordinary elections day,
5.12. Presiding members and deputies
(1) The local government must appoint* a member of a committee to be the presiding member of the committee.
(2) The local government may appoint* a member of a committee to be the deputy presiding member of the committee.
[Section 5.12 inserted: No. 47 of 2024 s. 39.]
5.13. Deputy presiding members, functions of
If, in relation to the presiding member of a committee —
(a) the office of presiding member is vacant; or
(b) the presiding member is not available or is unable or unwilling to perform the functions of presiding member,
then the deputy presiding member, if any, may perform the functions of presiding member.
5.14. Who acts if no presiding member
If, in relation to the presiding member of a committee —
(a) the office of presiding member and the office of deputy presiding member are vacant; or
(b) the presiding member and the deputy presiding member, if any, are not available or are unable or unwilling to perform the functions of presiding member,
then the committee members present at the meeting are to choose one of themselves to preside at the meeting.
5.15. Reduction of quorum for committees
The local government may reduce* the number of offices of committee member required for a quorum at a committee meeting specified by the local government if there would not otherwise be a quorum for the meeting.
5.16. Delegation of some powers and duties to certain committees
(1) Under and subject to section 5.17, a local government may delegate* to a committee any of its powers and duties other than this power of delegation.
(2) A delegation under this section is to be in writing and may be general or as otherwise provided in the instrument of delegation.
(3) Without limiting the application of sections 58 and 59 of the Interpretation Act 1984 —
(a) a delegation made under this section has effect for the period of time specified in the delegation or if no period has been specified, indefinitely; and
(b) any decision to amend or revoke a delegation under this section is to be by an absolute majority.
(4) Nothing in this section is to be read as preventing a local government from performing any of its functions by acting through another person.
5.17. Limits on delegation of powers and duties to certain committees
(1) A local government can delegate —
(a) to a committee comprising council members only, any of the council’s powers or duties under this Act except —
(i) any power or duty that requires a decision of an absolute majority of the council; and
(ii) any other power or duty that is prescribed;
and
(b) to a committee comprising council members and employees, any of the local government’s powers or duties that can be delegated to the CEO under Division 4; and
(c) to a committee referred to in section 5.9(2)(c), (d) or (e), any of the local government’s powers or duties that are necessary or convenient for the proper management of —
(i) the local government’s property; or
(ii) an event in which the local government is involved.
(2) A local government cannot delegate any of its powers or duties to a committee referred to in section 5.9(2)(f).
[Section 5.17 amended: No. 49 of 2004 s. 16(2); No. 16 of 2019 s. 19.]
5.18. Register of delegations to committees
A local government is to keep a register of the delegations made under this Division and review the delegations at least once every financial year.
Subdivision 3 — Matters affecting council and committee meetings
5.19. Quorum for meetings
(1) The quorum for a meeting of a council or committee is at least 50% of the number of offices (whether vacant or not) of member of the council or the committee.
(2) Subsections (3) and (3A) apply despite subsection (1) if a council member is not present at any time during a meeting of —
(a) the council; or
(b) a committee of which the council member is a member.
(3) The office held by the council member must be disregarded for the purpose of determining the quorum for the meeting at that time if the meeting is held during a period for which the council member is entitled to parental leave under section 2.25(5B).
(3A) The office held by the council member must be disregarded for the purpose of determining the quorum for the meeting if the meeting is held at a time when the council member is suspended from office under this Act.
(3B) Subsection (3A) does not apply if the scope of the suspension is limited so that the suspension does not apply to the member’s attendance at the meeting.
(4) Despite subsections (3) and (3A), the quorum for a meeting cannot be less than 2.
[Section 5.19 amended: No. 11 of 2023 s. 56; No. 47 of 2024 s. 40.]
5.20. Decisions of councils and committees
(1) A decision of a council does not have effect unless it has been made by a simple majority or, if another kind of majority is required under any provision of this Act or has been prescribed by regulations or a local law for the particular kind of decision, by that kind of majority.
(2) A decision of a committee does not have effect unless it has been made by a simple majority or, if another kind of majority has been prescribed by regulations or a local law for the particular kind of decision, by that kind of majority.
(3) This section does not apply to elections —
(a) by a council of the local government’s mayor or president under section 2.11; or
(b) by a council of the local government’s deputy mayor or president under section 2.15.
[Section 5.20 amended: No. 47 of 2024 s. 41.]
5.21. Voting
(1) Each council member and each member of a committee who is present at a meeting of the council or committee is entitled to one vote.
(2) Subject to section 5.67, each council member and each member of a committee to which a local government power or duty has been delegated who is present at a meeting of the council or committee is to vote.
(3) If the votes of members present at a council or a committee meeting are equally divided, the person presiding is to cast a second vote.
(4) If a matter is voted on at a meeting of a council or committee, the following information must be recorded in the minutes —
(a) the total votes cast for;
(b) the total votes cast against;
(c) the individual vote of each member of the council or committee.
(4A) Subsection (4) does not apply to a vote that is required to be by secret ballot under Schedule 2.3.
(4B) Regulations may prescribe how information is to be recorded for the purposes of subsection (4)(a), (b) or (c).
(5) A person who fails to comply with subsection (2) or (3) commits an offence.
[Section 5.21 amended: No. 49 of 2004 s. 43; No. 11 of 2023 s. 57; No. 47 of 2024 s. 42.]
5.22. Minutes of council and committee meetings
(1) The CEO must cause minutes to be kept of the proceedings of a meeting of a council or a committee.
(2) The minutes of a meeting of a council or a committee are to be submitted to the next ordinary meeting of the council or the committee, as the case requires, for confirmation.
(3) The person presiding at the meeting at which the minutes are confirmed is to sign the minutes and certify the confirmation.
[Section 5.22 amended: No. 47 of 2024 s. 43.]
5.23. Meetings generally open to public
(1) The following are to be open to members of the public —
(a) all council meetings;
(b) all meetings of a committee.
(2) Despite subsection (1), if any of the following matters is to be dealt with at a meeting, the council or committee must close the meeting to members of the public to the extent necessary to ensure that the matter is dealt with at the meeting on a confidential basis —
(a) a matter that a committee of a House of Parliament, or a joint committee of both Houses, has advised the local government must be dealt with on a confidential basis;
(b) a matter relating to the recruitment or employment of the CEO or a senior employee, including the following —
(i) the termination of employment;
(ii) a review of performance under section 5.38;
(c) a prescribed matter;
(d) a matter that is the subject of a direction given under section 5.23AA(1).
(3) Despite subsection (1), the council or committee must close a meeting to members of the public to the extent necessary to ensure compliance with a requirement (however formulated) —
(a) that is imposed under a written law, excluding this Act and local laws; and
(b) that prohibits or restricts the making public of information.
(4) Despite subsection (1), if any of the following information is to be dealt with at a meeting, the council or committee may close the meeting to members of the public to the extent necessary to ensure that the information is dealt with at the meeting on a confidential basis —
(a) legal advice, or other information, over which the local government holds legal professional privilege;
(b) information relating to the personal affairs of an individual;
(c) information contained in a tender received by the local government for a contract to the extent that the information —
(i) is a tendered price; or
(ii) a tendered methodology for calculating a price;
(d) information contained in a tender received by the local government for a contract to the extent that —
(i) the information discloses any technology, or any manufacturing, industrial or trade process, that the tenderer proposes to use in performing the contract; and
(ii) the information has not previously been made public; and
(iii) the making public of the information would be likely to have an adverse effect on the tenderer’s business interests;
(e) information the making public of which would be likely to endanger the security (including cyber‑security) of any of the local government’s property or operations;
(f) information the making public of which would be likely to impair the effectiveness of any lawful method or procedure for preventing, detecting, investigating or dealing with any contravention or possible contravention of the law;
(g) prescribed information;
(h) information that is the subject of a direction given under section 5.23AA(2).
(5) For the purpose of deciding whether to close a meeting to members of the public under subsection (4) in relation to any information, the following matters are irrelevant —
(a) whether making the information public would cause embarrassment to any of the following —
(i) the local government;
(ii) the council or a council member;
(iii) a committee of the council or a member of a committee of the council;
(iv) an employee;
(b) whether making the information public would —
(i) cause a loss of confidence in the local government; or
(ii) make the local government susceptible to adverse criticism;
(c) whether the information relates to a matter that is controversial in the district;
(d) a prescribed matter.
(6) Subsection (5) does not prevent other matters from being regarded as irrelevant.
(7) A decision to close a meeting to members of the public under subsection (2), (3) or (4) must be made (including voted on if necessary) at the meeting and while the meeting is open to members of the public.
(8) If a decision is made to close a meeting to members of the public under subsection (2), (3) or (4), the following must be recorded in the minutes of the meeting —
(a) the decision;
(b) the subsection under which the decision is made and, if that subsection is subsection (2) or (4), the paragraph of that subsection under which the decision is made;
(c) if the provision recorded under paragraph (b) is subsection (2)(c) or (4)(g) — the applicable regulation (including any applicable subregulation or paragraph);
(d) if the provision recorded under paragraph (b) is subsection (2)(d) or (4)(h) — a statement that a direction was given under section 5.23AA(1) or (2) (as the case requires);
(e) an explanation of how the matter or information to which the decision relates falls within the scope of the provision recorded under paragraph (b);
(f) a summary of the steps taken to ensure that the closure to members of the public is for no longer than required or authorised under the provision recorded under paragraph (b);
(g) any prescribed information.
(9) Sections 5.95(3) and 5.96A(2) do not apply to information that is required to be recorded in the minutes of a meeting under subsection (8).
[Section 5.23 inserted: No. 47 of 2024 s. 44.]
5.23AA. Powers of Inspector and Departmental CEO relating to closing of meetings
(1) The Inspector, or a person authorised by the Inspector, may, in relation to a particular matter, direct a local government for the purposes of section 5.23(2)(d) that a meeting must be closed to members of the public to the extent necessary to ensure that the matter is dealt with at the meeting on a confidential basis.
(2) The Departmental CEO, or a person authorised by the Departmental CEO, may, in relation to any particular information, direct a local government for the purposes of section 5.23(4)(h) that a meeting may be closed to members of the public to the extent necessary to ensure that the information is dealt with at the meeting on a confidential basis.
(3) A direction under subsection (1) or (2) may be expressed to apply to a particular meeting or to meetings of a particular class.
(4) If the Inspector is satisfied that a meeting, or part of a meeting, was closed to members of the public in contravention of section 5.23, the Inspector may direct the local government to do 1 or more of the following —
(a) despite section 5.95(3), make available for inspection under section 5.94 any information to which section 5.95(3) would otherwise apply because the meeting, or part of the meeting, was closed to members of the public;
(b) despite section 5.96A(2), publish on the local government’s official website under section 5.96A(1) any information to which section 5.96A(2) would otherwise apply because the meeting, or part of the meeting, was closed to members of the public;
(c) despite section 5.23A(3) and any provision of regulations made for the purposes of section 5.23A, make publicly available, in accordance with the direction, any recording, or any part of a recording, that was made of the meeting or part of the meeting.
(5) In subsection (4)(c) —
recording means a video recording, or an audio recording, made under regulations made for the purposes of section 5.23A.
(6) A local government must comply with a direction given to it under subsection (4) within the time specified in the direction.
[Section 5.23AA inserted: No. 47 of 2024 s. 44.]
5.23A. Electronic broadcasting and video or audio recording of council meetings
council meeting means a meeting of a council or committee;
electronic broadcasting means broadcasting by way of the Internet or other electronic means;
recording means a video recording or an audio recording.
(2) Regulations may require, regulate or otherwise make provision in relation to any of the following —
(a) the electronic broadcasting of council meetings (either live or with a delay);
(b) the making or retaining of recordings of council meetings;
(c) the making of recordings of council meetings publicly available;
(d) the provision of, or otherwise making available of, recordings of council meetings to any person (on the person’s request or otherwise).
(3) Regulations made for the purposes of subsection (2) cannot require or authorise —
(a) the electronic broadcasting of any part of a council meeting that is closed to members of the public; or
(b) a recording of any such part of a council meeting —
(i) to be made publicly available; or
(ii) to be provided to, or otherwise made available to, any person other than the Inspector or a person authorised by the Inspector.
(4) Without limiting section 9.57A(2) or subsection (2), regulations made for the purposes of subsection (2) may provide for a local government, or any other person, to be not liable to an action for defamation in prescribed circumstances.
[Section 5.23A inserted: No. 11 of 2023 s. 58; amended: No. 47 of 2024 s. 45.]
5.24. Question time for public
(1) Time is to be allocated for questions to be raised by members of the public and responded to at —
(a) every ordinary meeting of a council; and
(b) such other meetings of councils or committees as may be prescribed.
(2) Procedures and the minimum time to be allocated for the asking of and responding to questions raised by members of the public at council or committee meetings are to be in accordance with regulations.
5.25. Regulations about council and committee meetings and committees
(1) Without limiting the generality of section 9.59, regulations may make provision in relation to —
(a) the matters to be dealt with at ordinary or at special meetings of councils; and
(b) the functions of committees or types of committee; and
(ba) the holding of council or committee meetings by telephone, video conference or other electronic means; and
(c) the procedure to be followed at, and in respect of, council or committee meetings; and
(d) methods of voting at council or committee meetings; and
(e) the circumstances and manner in which a decision made at a council or a committee meeting may be revoked or changed (which may differ from the manner in which the decision was made); and
(f) the content and confirmation of minutes of council or committee meetings and the keeping and preserving of the minutes and any documents relating to meetings; and
(g) the giving of public notice of the date and agenda for council or committee meetings; and
(h) the exclusion from meetings of persons whose conduct is not conducive to the proper conduct of the meetings and the steps to be taken in the event of persons refusing to leave meetings; and
(i) the circumstances and time in which the unconfirmed minutes of council or committee meetings are to be made available for inspection by members of the public; and
(j) the circumstances and time in which notice papers and agenda relating to any council or committee meeting and reports and other documents which could be —
(ii) produced by the local government or a committee for presentation at a council or committee meeting,
are to be made available for inspection by members of the public.
(2) Regulations providing for meetings to be held by telephone, video conference or other electronic means may modify the application of this Act in relation to those meetings to the extent necessary or convenient to facilitate the holding of those meetings in that way.
[Section 5.25 amended: No. 64 of 1998 s. 28.]
Subdivision 4 — Electors’ meetings
5.26. Term used: electors
electors includes ratepayers.
5.27. Electors’ general meetings
(1) A general meeting of the electors of a district is to be held once every financial year.
(2) A general meeting is to be held on a day selected by the local government but not more than 56 days after the local government accepts the annual report for the previous financial year.
(3) The matters to be discussed at general electors’ meetings are to be those prescribed.
[Section 5.27 modified: SL 2020/57 1M.]
5.28. Electors’ special meetings
(1) A special meeting of the electors of a district is to be held on the request of not less than —
(a) 300 electors or 5% of the number of electors —whichever is the lesser number; or
(b) 1/3 of the number of council members.
(2) The request is to specify the matters to be discussed at the meeting and the form or content of the request is to be in accordance with regulations.
(3) The request is to be sent to the mayor or president.
(4) A special meeting is to be held on a day selected by the mayor or president but not more than 35 days after the day on which the mayor or president received the request.
(5) Despite subsection (4), the mayor or president may —
(a) decide that the special meeting is not to be held if the mayor or president is satisfied that the substance of each matter for discussion specified in the request —
(i) was discussed at a special meeting that was held during the period of 12 months ending on the day on which the mayor or president received the request; or
(ii) was, or will be, discussed at a special meeting that was, or will be, held during the period of 35 days after the day on which the mayor or president received the request;
or
(b) decide that a matter for discussion specified in the request is not to be discussed at the special meeting in whole or in part if the mayor or president is satisfied that the substance of the whole of the matter or the part of the matter (as the case requires) —
(i) was discussed at a special meeting that was held during the period of 12 months ending on the day on which the mayor or president received the request; or
(ii) was, or will be, discussed at a special meeting that was, or will be, held during the period of 35 days after the day on which the mayor or president received the request.
(6) If the mayor or president makes a decision under subsection (5)(a) or (b), each matter, or the whole or part of the matter, is to be considered at —
(a) the first ordinary council meeting after the mayor or president makes the decision; or
(b) if, when the mayor or president makes the decision, the CEO has already convened that first ordinary council meeting under section 5.5(1) — the second ordinary council meeting after the mayor or president makes the decision.
(7) The local government must give local public notice of any decision of the mayor or president made under subsection (5)(a) or (b) and of the reasons for the decision.
[Section 5.28 modified: SL 2020/57 1M; amended: No. 11 of 2023 s. 60; No. 47 of 2024 s. 160.]
5.29. Convening electors’ meetings
(1) The CEO is to convene an electors’ meeting by giving —
(a) at least 14 days’ local public notice; and
(b) each council member at least 14 days’ notice,
of the date, time, place and purpose of the meeting.
(2) The local public notice referred to in subsection (1)(a) is to be treated as having commenced at the time the notice is first given and is to continue in the prescribed way until the meeting has been held.
[Section 5.29 amended: No. 16 of 2019 s. 20.]
5.30. Who presides at electors’ meetings
(1) The mayor or president is to preside at electors’ meetings.
(2) If the circumstances mentioned in section 5.34(a) or (b) apply the deputy mayor or deputy president may preside at an electors’ meeting in accordance with that section.
(3) If the circumstances mentioned in section 5.34(a) or (b) apply and —
(b) the deputy mayor or deputy president is not available or is unable or unwilling to perform the functions of mayor or president,
then the electors present are to choose one of the councillors present to preside at the meeting but if there is no councillor present, able and willing to preside, then the electors present are to choose one of themselves to preside.
5.31. Procedure for electors’ meetings
The procedure to be followed at, and in respect of, electors’ meetings and the methods of voting at electors’ meetings are to be in accordance with regulations.
5.32. Minutes of electors’ meetings
The CEO is to —
(a) cause minutes of the proceedings at an electors’ meeting to be kept and preserved; and
(b) ensure that copies of the minutes are made available for inspection by members of the public before the council meeting at which decisions made at the electors’ meeting are first considered.
5.33. Decisions made at electors’ meetings
(1) All decisions made at an electors’ meeting are to be considered at the next ordinary council meeting or, if that is not practicable —
(a) at the first ordinary council meeting after that meeting; or
(b) at a special meeting called for that purpose,
(2) If at a meeting of the council a local government makes a decision in response to a decision made at an electors’ meeting, the reasons for the decision are to be recorded in the minutes of the council meeting.
Division 3 — Acting for the mayor or president
5.34. When deputy mayors and deputy presidents can act
If —
(a) the office of mayor or president is vacant; or
(b) the mayor or president is not available or is unable or unwilling to perform the functions of the mayor or president,
then the deputy mayor may perform the functions of mayor and the deputy president may perform the functions of president, as the case requires.
5.35. Who acts if no mayor, president or deputy
(1) If the circumstances mentioned in section 5.34(a) or (b) apply and —
(b) the deputy mayor or deputy president is not available or is unable or unwilling to perform the functions of mayor or president,
and the mayor or president or deputy will not be able to perform the functions of the mayor or president for a time known to the council, then the council may appoint a councillor to perform during that time the functions of mayor or president, as the case requires.
(2) If the circumstances mentioned in section 5.34(a) or (b) apply and —
(b) the deputy mayor or deputy president is not available or is unable or unwilling to perform the functions of mayor or president,
and a person has not been appointed under subsection (1), the CEO, after consultation with, and obtaining the agreement of, 2 councillors selected by the CEO, may perform the functions of mayor or president, as the case requires.
Division 4 — Local government employees
5.36. Local government employees
(1) A local government is to employ —
(a) a person to be the CEO of the local government; and
(b) such other persons as the council believes are necessary to enable the functions of the local government and the functions of the council to be performed.
(2) A person is not to be employed in the position of CEO unless the council —
(a) believes that the person is suitably qualified for the position; and
(b) is satisfied* with the provisions of the proposed employment contract.
(3) A person is not to be employed by a local government in any other position unless the CEO —
(a) believes that the person is suitably qualified for the position; and
(b) is satisfied with the proposed arrangements relating to the person’s employment.
(4) Unless subsection (5A) applies, if the position of CEO of a local government becomes vacant, it is to be advertised by the local government in the manner prescribed, and the advertisement is to contain such information with respect to the position as is prescribed.
(5A) Subsection (4) does not require a position to be advertised if it is proposed that the position be filled by a person in a prescribed class.
(5) For the avoidance of doubt, subsection (4) does not impose a requirement to advertise a position before the renewal of a contract referred to in section 5.39.
[Section 5.36 amended: No. 49 of 2004 s. 44; No. 17 of 2009 s. 21.]
5.37. Senior employees
(1) A local government may designate employees or persons belonging to a class of employee to be senior employees.
(2) The CEO is to inform the council of each proposal to employ or dismiss a senior employee, other than a senior employee referred to in section 5.39(1a), and the council may accept or reject the CEO’s recommendation but if the council rejects a recommendation, it is to inform the CEO of the reasons for its doing so.
(3) Unless subsection (4A) applies, if the position of a senior employee of a local government becomes vacant, it is to be advertised by the local government in the manner prescribed, and the advertisement is to contain such information with respect to the position as is prescribed.
(4A) Subsection (3) does not require a position to be advertised if it is proposed that the position be filled by a person in a prescribed class.
(4) For the avoidance of doubt, subsection (3) does not impose a requirement to advertise a position where a contract referred to in section 5.39 is renewed.
[Section 5.37 amended: No. 49 of 2004 s. 45 and 46(4); No. 17 of 2009 s. 22.]
5.38. Annual review of employees’ performance
(1) A local government must review the performance of the CEO if the CEO is employed for a term of more than 1 year.
(2) The CEO must ensure that the performance of each other employee who is employed for more than 1 year is reviewed.
(3) A review under subsection (1) or (2) must be conducted at least once in relation to each year of the person’s employment.
[Section 5.38 inserted: No. 16 of 2019 s. 21.]
5.39. Contracts for CEO and senior employees
(1) Subject to subsection (1a), the employment of a person who is a CEO or a senior employee is to be governed by a written contract in accordance with this section.
(1a) Despite subsection (1) —
(a) an employee may act in the position of a CEO or a senior employee for a term not exceeding one year without a written contract for the position in which the employee is acting; and
(b) a person may be employed by a local government as a senior employee for a term not exceeding 3 months, during any 2 year period, without a written contract.
(2) A contract under this section —
(a) in the case of an acting or temporary position, cannot be for a term exceeding one year;
(b) in every other case, cannot be for a term exceeding 5 years.
(3) A contract under this section is of no effect unless —
(a) the expiry date is specified in the contract; and
(b) there are specified in the contract performance criteria for the purpose of reviewing the person’s performance; and
(c) any other matter that has been prescribed as a matter to be included in the contract has been included.
(4) A contract under this section is to be renewable and subject to subsection (5), may be varied.
(5) A provision in, or condition of, an agreement or arrangement has no effect if it purports to affect the application of any provision of this section.
(6) Nothing in subsection (2) or (3)(a) prevents a contract for a period that is within the limits set out in subsection 2(a) or (b) from being terminated within that period on the happening of an event specified in the contract.
(7) A CEO is to be paid or provided with such remuneration as is determined by the Salaries and Allowances Tribunal under the Salaries and Allowances Act 1975 section 7A.
(8) A local government is to ensure that subsection (7) is complied with in entering into, or renewing, a contract of employment with a CEO.
[Section 5.39 amended: No. 49 of 2004 s. 46(1)‑(3); No. 2 of 2012 s. 13 (correction to reprint: Gazette 28 Mar 2013 p. 1317); No. 47 of 2024 s. 160.]
5.39A. Model standards for CEO recruitment, performance and termination
(1) Regulations must prescribe model standards for local governments in relation to the following —
(a) the recruitment of CEOs;
(b) the review of the performance of CEOs;
(c) the termination of the employment of CEOs.
(2) Regulations may amend the model standards.
[Section 5.39A inserted: No. 16 of 2019 s. 22.]
5.39B. Adoption of model standards
model standards means the model standards prescribed under section 5.39A(1).
(2) Within 3 months after the day on which regulations prescribing the model standards come into operation, a local government must prepare and adopt* standards to be observed by the local government that incorporate the model standards.
(3) Within 3 months after the day on which regulations amending the model standards come into operation, the local government must amend* the adopted standards to incorporate the amendments made to the model standards.
(4) A local government may include in the adopted standards provisions that are in addition to the model standards, but any additional provisions are of no effect to the extent that they are inconsistent with the model standards.
(5) The model standards are taken to be a local government’s adopted standards until the local government adopts standards under this section.
(6) The CEO must publish an up‑to‑date version of the adopted standards on the local government’s official website.
(7) Regulations may provide for —
(a) the monitoring of compliance with adopted standards; and
(b) the way in which contraventions of adopted standards are to be dealt with.
[Section 5.39B inserted: No. 16 of 2019 s. 22.]
5.39C. Policy for temporary employment or appointment of CEO
(1) A local government must prepare and adopt* a policy that sets out the process to be followed by the local government in relation to the following —
(a) the employment of a person in the position of CEO for a term not exceeding 1 year;
(b) the appointment of an employee to act in the position of CEO for a term not exceeding 1 year.
(2) A local government may amend* the policy.
(3) When preparing the policy or an amendment to the policy, the local government must comply with any prescribed requirements relating to the form or content of a policy under this section.
(4) The CEO must publish an up‑to‑date version of the policy on the local government’s official website.
[Section 5.39C inserted: No. 16 of 2019 s. 22.]
5.40. Principles affecting employment by local governments
The following principles apply to a local government in respect of its employees —
(a) employees are to be selected and promoted in accordance with the principles of merit and equity; and
(b) no power with regard to matters affecting employees is to be exercised on the basis of nepotism or patronage; and
(c) employees are to be treated fairly and consistently; and
(d) there is to be no unlawful discrimination against employees or persons seeking employment by a local government on a ground referred to in the Equal Opportunity Act 1984 or on any other ground; and
(e) employees are to be provided with safe and healthy working conditions in accordance with the Work Health and Safety Act 2020; and
(f) such other principles, not inconsistent with this Division, as may be prescribed.
[Section 5.40 amended: No. 36 of 2020 s. 364.]
5.41. Role of CEO
(1) The CEO, as the local government’s chief executive officer, is responsible for managing the local government’s administration and operations.
(2) The CEO’s executive role includes the following —
(a) causing council decisions to be implemented;
(b) managing the provision of services and facilities that the council has determined the local government is to provide in the district;
(c) determining procedures and systems for —
(i) implementing the local government’s policies as determined by the council; and
(ii) otherwise managing the local government’s administration and operations;
(d) being responsible for the employment, management, supervision, direction and dismissal of other employees (subject to section 5.37(2) in relation to senior employees);
(e) ensuring that records and documents of the local government are properly kept for the purposes of this Act and any other written law.
(3) The CEO is the council’s principal advisor and, as such, does the following —
(a) advises, and procures advice for, the council in relation to the local government’s affairs and the performance of the local government’s functions;
(b) ensures that the council has the information and advice it needs to make informed and timely decisions.
(4) The CEO —
(a) liaises with the mayor or president on the local government’s affairs and the performance of the local government’s functions; and
(b) speaks on behalf of the local government if the mayor or president agrees.
(5) The CEO performs any other function specified or delegated by the local government or imposed under this Act or another written law as a function to be performed by the CEO.
[Section 5.41 inserted: No. 47 of 2024 s. 50.]
5.42. Delegation of some powers and duties to CEO
(1) A local government may delegate* to the CEO the exercise of any of its powers or the discharge of any of its duties under —
(a) this Act other than those referred to in section 5.43; or
(b) the Planning and Development Act 2005 section 214(2), (3) or (5).
(2) A delegation under this section is to be in writing and may be general or as otherwise provided in the instrument of delegation.
[Section 5.42 amended: No. 1 of 1998 s. 13; No. 28 of 2010 s. 70.]
5.43. Limits on delegations to CEO 28
A local government cannot delegate to a CEO any of the following powers or duties —
(a) any power or duty that requires a decision of an absolute majority of the council;
(b) accepting a tender which exceeds an amount determined by the local government for the purpose of this paragraph;
(d) acquiring or disposing of any property valued at an amount exceeding an amount determined by the local government for the purpose of this paragraph;
(e) any of the local government’s powers under section 5.98, 5.98A, 5.99, 5.99A, 5.100 or 5.129;
(f) borrowing money on behalf of the local government;
(g) hearing or determining an objection of a kind referred to in section 9.5;
(ha) the power under section 9.49A(4) to authorise a person to sign documents on behalf of the local government;
(h) any power or duty that requires the approval of the Minister or the Governor;
(i) such other powers or duties as may be prescribed.
[Section 5.43 amended: No. 49 of 2004 s. 16(3) and 47; No. 17 of 2009 s. 23; No. 5 of 2017 s. 22; No. 16 of 2019 s. 23; No. 11 of 2023 s. 66.]
5.44. CEO may delegate powers and duties to other employees
(1) A CEO may delegate to any employee of the local government the exercise of any of the CEO’s powers or the discharge of any of the CEO’s duties under this Act other than this power of delegation.
(2) A delegation under this section is to be in writing and may be general or as otherwise provided in the instrument of delegation.
(3) This section extends to a power or duty the exercise or discharge of which has been delegated by a local government to the CEO under section 5.42, but in the case of such a power or duty —
(a) the CEO’s power under this section to delegate the exercise of that power or the discharge of that duty; and
(b) the exercise of that power or the discharge of that duty by the CEO’s delegate,
are subject to any conditions imposed by the local government on its delegation to the CEO.
(4) Subsection (3)(b) does not limit the CEO’s power to impose conditions or further conditions on a delegation under this section.
(5) In subsections (3) and (4) —
conditions includes qualifications, limitations or exceptions.
[Section 5.44 amended: No. 1 of 1998 s. 14(1).]
5.45. Other matters relevant to delegations under this Division
(1) Without limiting the application of sections 58 and 59 of the Interpretation Act 1984 —
(a) a delegation made under this Division has effect for the period of time specified in the delegation or where no period has been specified, indefinitely; and
(b) any decision to amend or revoke a delegation by a local government under this Division is to be by an absolute majority.
(2) Nothing in this Division is to be read as preventing —
(a) a local government from performing any of its functions by acting through a person other than the CEO; or
(b) a CEO from performing any of the CEO’s functions by acting through another person.
[Section 5.45 amended: No. 47 of 2024 s. 160.]
5.46. Register of, and records relevant to, delegations to CEO and employees
(1) The CEO is to keep a register of the delegations made under this Division to the CEO and to employees.
(2) At least once every financial year, delegations made under this Division are to be reviewed by the delegator.
(3) A person to whom a power or duty is delegated under this Act is to keep records in accordance with regulations in relation to the exercise of the power or the discharge of the duty.
5.47. Superannuation regulations
The Governor may make regulations about any matter relating to the provision of superannuation by a local government.
[Section 5.47 inserted: No. 17 of 2009 s. 24.]
5.48. Long service benefits for employees and employees of local government associations
employee includes an employee of WALGA;
long service benefit means any of the following —
(a) long service leave with pay; or
(b) long service leave taken on a pro rata basis with pay; or
(c) payment in lieu of long service leave.
(2) Long service benefits for employees are to be provided in accordance with regulations.
[Section 5.48 amended: No. 17 of 2009 s. 25.]
5.49. Workers compensation insurance
eligible body means —
(a) a local government; or
(b) a regional local government; or
(c) a regional subsidiary; or
(d) any other body with functions relating to local government approved in writing by the Minister;
group self‑insurer licence has the meaning given in the WCIM Act section 200;
WCIM Act means the Workers Compensation and Injury Management Act 2023;
WorkCover WA has the meaning given in the WCIM Act section 5.
(2) WALGA must hold and manage a group self‑insurer licence under the WCIM Act for the benefit of —
(a) itself; and
(b) any eligible body to which, under the WCIM Act, the group self‑insurer licence extends.
(3) If an eligible body wishes to be added to or removed from the group self‑insurer licence, WALGA must apply to WorkCover WA to seek a variation in the group self‑insurer licence under the WCIM Act section 246(3).
(4) Nothing in this section limits the application of the WCIM Act.
The WCIM Act section 247 provides that each holder or former holder of a group self‑insurer licence is jointly and severally liable for any self‑insurer liability of an employer that is a liability in respect of an injury to or death of a worker that arose while the employer was a self‑insurer covered by the group self‑insurer licence.
[Section 5.49 inserted: No. 21 of 2023 s. 660.]
5.50. Payments to employees in addition to contract or award
(1) A local government is to prepare a policy in relation to employees whose employment with the local government is finishing, setting out —
(a) the circumstances in which the local government will pay an employee an amount in addition to any amount to which the employee is entitled under a contract of employment or award relating to the employee; and
(b) the manner of assessment of the additional amount.
(1a) A local government must not make any payment of the kind described in subsection (1)(a) unless the local government has adopted a policy prepared under subsection (1).
(2) A local government may make a payment —
(a) to an employee whose employment with the local government is finishing; and
(b) that is more than the additional amount set out in the policy prepared under subsection (1) and adopted by the local government,
but local public notice is to be given in relation to the payment made.
(3) The value of a payment or payments made to a person under this section is not to exceed such amount as is prescribed or provided for by regulations.
(4) In this section a reference to a payment to a person includes a reference to the disposition of property in favour of, or the conferral of any other financial benefit on, the person.
(5) The CEO must publish the policy prepared under subsection (1) and adopted by the local government on the local government’s official website.
[Section 5.50 amended: No. 64 of 1998 s. 29; No. 16 of 2019 s. 24.]
5.51. Employee who nominates for election to council to take leave
(1) If an employee of a local government nominates to be a candidate for election as a member of the council and the nomination is accepted then, by operation of this subsection, the employee is to be treated as being on leave from the employee’s employment on and from the day that the nomination is accepted until the day of the declaration of the poll or, if the nomination is cancelled, on the day of the cancellation.
(2) An employee to whom subsection (1) applies may, during the period of leave, be paid leave entitlements to which the employee is entitled under a contract of employment or award relating to the employee but otherwise the leave is to be unpaid leave.
[Section 5.51 amended: No. 47 of 2024 s. 160.]
5.51A. Code of conduct for employees
(1) The CEO must prepare and implement a code of conduct to be observed by employees of the local government.
(2) The CEO may amend the code of conduct.
(3) The CEO must publish an up‑to‑date version of the code of conduct on the local government’s official website.
(4) Regulations may prescribe the content of, and other matters in relation to, codes of conduct under this section.
(5) A code of conduct under this section is of no effect to the extent that it is inconsistent with regulations made for the purposes of subsection (4).
[Section 5.51A inserted: No. 16 of 2019 s. 25.]
Division 5 — Annual reports and planning
[Heading amended: No. 49 of 2004 s. 42(2).]
[5.52. Deleted: No. 49 of 2004 s. 42(3).]
5.53. Annual reports
(1) The local government is to prepare an annual report for each financial year.
(2) The annual report is to contain —
(a) a report from the mayor or president; and
(b) a report from the CEO; and
[(c), (d) deleted]
(e) an overview of the plan for the future of the district made in accordance with section 5.56, including major initiatives that are proposed to commence or to continue in the next financial year; and
(f) the financial report for the financial year; and
(g) such information as may be prescribed in relation to the payments made to employees; and
(h) the auditor’s report prepared under section 7.12AD(1) for the financial year; and
(ha) a matter on which a report must be made under section 29(2) of the Disability Services Act 1993; and
(hb) details of entries made under section 5.96C in the record of information about conduct; and
(i) such other information as may be prescribed.
[Section 5.53 amended: No. 44 of 1999 s. 28(3); No. 49 of 2004 s. 42(4) and (5); No. 1 of 2007 s. 6; No. 5 of 2017 s. 7; No. 47 of 2024 s. 52(1).]
5.54. Acceptance of annual reports
(1) Subject to subsection (2), the annual report for a financial year is to be accepted* by the local government no later than 31 December after that financial year.
(2) If the auditor’s report is not available in time for the annual report for a financial year to be accepted by 31 December after that financial year, the annual report is to be accepted by the local government no later than 2 months after the auditor’s report becomes available.
[Section 5.54 amended: No. 49 of 2004 s. 49.]
5.55. Notice of annual reports
The CEO is to give local public notice of the availability of the annual report as soon as practicable after the report has been accepted by the local government.
5.55A. Publication of annual reports
The CEO is to publish the annual report on the local government’s official website within 14 days after the report has been accepted by the local government.
[Section 5.55A inserted: No. 5 of 2017 s. 8.]
5.56. Planning for the future
(1) A local government is to plan for the future of the district.
(2) A local government is to ensure that plans made under subsection (1) are in accordance with any regulations made about planning for the future of the district.
[Section 5.56 inserted: No. 49 of 2004 s. 42(6).]
Division 6 — Disclosure of financial interests and gifts
[Heading amended: No. 16 of 2019 s. 26.]
Subdivision 1A — Preliminary
[Heading inserted: No. 16 of 2019 s. 26.]
5.57. Terms used
In this Division, unless the contrary intention appears —
gift means —
(a) a conferral of a financial benefit (including a disposition of property) made by 1 person in favour of another person unless adequate consideration in money or money’s worth passes from the person in whose favour the conferral is made to the person who makes the conferral; or
(b) a travel contribution;
travel includes accommodation incidental to a journey;
travel contribution means a financial or other contribution made by 1 person to travel undertaken by another person.
[Section 5.57 inserted: No. 16 of 2019 s. 27.]
5.58. Provisions about gifts
(1) For the purposes of this Division —
(a) the amount of a gift comprising the conferral of a financial benefit is taken to be an amount equal to the value of the financial benefit at the time the gift was made; and
(b) the amount of a gift comprising a travel contribution (other than a financial contribution) is taken to be an amount equal to the value of the contribution at the time the gift was made.
(2) For the purposes of this Division, a gift made to a relevant person (as defined in section 5.59) by 2 or more related bodies corporate (as defined in the Corporations Act 2001 (Commonwealth) section 9) is taken to have been made by a single corporation.
[Section 5.58 inserted: No. 16 of 2019 s. 27.]
Subdivision 1 — Disclosure of financial interests in matters affecting local government decisions
5.59. Terms used
In this Subdivision, unless the contrary intention appears —
extent, in relation to an interest, includes the value and amount of the interest;
interest relating to a gift means an interest that a relevant person has because of the operation of section 5.60 when read with section 5.62(1)(ea), (eb) or (ec);
member, in relation to a council or committee, means a council member or a member of the committee;
relevant person means a person who is either a member or a person to whom section 5.70, 5.71 or 5.71A applies.
[Section 5.59 amended: No. 16 of 2019 s. 28.]
5.60. When person has an interest
For the purposes of this Subdivision, a relevant person has an interest in a matter if either —
(a) the relevant person; or
(b) a person with whom the relevant person is closely associated,
has —
(c) a direct or indirect financial interest in the matter; or
(d) a proximity interest in the matter.
[Section 5.60 inserted: No. 64 of 1998 s. 30.]
5.60A. Financial interest
For the purposes of this Subdivision, a person has a financial interest in a matter if it is reasonable to expect that the matter will, if dealt with by the local government, or an employee or committee of the local government or member of the council of the local government, in a particular way, result in a financial gain, loss, benefit or detriment for the person.
[Section 5.60A inserted: No. 64 of 1998 s. 30; amended: No. 49 of 2004 s. 50.]
5.60B. Proximity interest
(1) For the purposes of this Subdivision, a person has a proximity interest in a matter if the matter concerns —
(a) a proposed change to a planning scheme affecting land that adjoins the person’s land; or
(b) a proposed change to the zoning or use of land that adjoins the person’s land; or
(c) a proposed development (as defined in section 5.63(5)) of land that adjoins the person’s land.
(2) In this section, land (the proposal land) adjoins a person’s land if —
(a) the proposal land, not being a thoroughfare, has a common boundary with the person’s land; or
(b) the proposal land, or any part of it, is directly across a thoroughfare from, the person’s land; or
(c) the proposal land is that part of a thoroughfare that has a common boundary with the person’s land.
(3) In this section a reference to a person’s land is a reference to any land owned by the person or in which the person has any estate or interest.
[Section 5.60B inserted: No. 64 of 1998 s. 30.]
5.61. Indirect financial interests
A reference in this Subdivision to an indirect financial interest of a person in a matter includes a reference to a financial relationship between that person and another person who requires a local government decision in relation to the matter.
5.62. Closely associated persons
(1) For the purposes of this Subdivision a person is to be treated as being closely associated with a relevant person if —
(a) the person is in partnership with the relevant person; or
(b) the person is an employer of the relevant person; or
(c) the person is a beneficiary under a trust, or an object of a discretionary trust, of which the relevant person is a trustee; or
(ca) the person belongs to a class of persons that is prescribed; or
(d) the person is a body corporate —
(i) of which the relevant person is a director, secretary or executive officer; or
(ii) in which the relevant person holds shares having a total value exceeding —
(I) the prescribed amount; or
(II) the prescribed percentage of the total value of the issued share capital of the company,
whichever is less;
or
(e) the person is the spouse, de facto partner or child of the relevant person and is living with the relevant person; or
(ea) the relevant person is a council member and the person —
(i) gave an electoral gift to the relevant person in relation to the election at which the relevant person was last elected; or
(ii) has given an electoral gift to the relevant person since the relevant person was last elected;
or
(eb) the relevant person is a council member and the person has given a gift to which this paragraph applies to the relevant person since the relevant person was last elected; or
(ec) the relevant person is a CEO and the person has given a gift to which this paragraph applies to the relevant person since the relevant person was last employed (or appointed to act) in the position of CEO; or
(f) the person has a relationship specified in any of paragraphs (a) to (d) in respect of the relevant person’s spouse or de facto partner if the spouse or de facto partner is living with the relevant person.
(1A) Subsection (1)(eb) and (ec) apply to a gift if —
(a) either —
(i) the amount of the gift exceeds the amount prescribed for the purposes of this subsection; or
(ii) the gift is 1 of 2 or more gifts made by 1 person to the relevant person at any time during a year and the sum of the amounts of those 2 or more gifts exceeds the amount prescribed for the purposes of this subsection;
and
(b) the gift is not an excluded gift under subsection (1B).
(1B) A gift is an excluded gift —
(a) if —
(i) the gift is a ticket to, or otherwise relates to the relevant person’s attendance at, an event as defined in section 5.90A(1); and
(ii) the local government approves, in accordance with the local government’s policy under section 5.90A, the relevant person’s attendance at the event;
or
(b) if the gift is in a class of gifts prescribed for the purposes of this subsection.
electoral gift means a gift about which the relevant person was or is required by regulations under section 4.59(a) to provide information in relation to an election;
value, in relation to shares, means the value of the shares calculated in the prescribed manner or using the prescribed method.
[Section 5.62 amended: No. 64 of 1998 s. 31; No. 28 of 2003 s. 110; No. 49 of 2004 s. 51; No. 17 of 2009 s. 26; No. 16 of 2019 s. 29.]
5.63. Some interests need not be disclosed
(1) Sections 5.65, 5.70 and 5.71 do not apply to a relevant person who has any of the following interests in a matter —
(a) an interest common to a significant number of electors or ratepayers; or
(b) an interest in the imposition of any rate, charge or fee by the local government; or
(c) an interest relating to —
(i) a fee, reimbursement of an expense or an allowance to which section 5.98, 5.98A, 5.99, 5.99A, 5.100 or 5.101(2) refers; or
(ia) the payment of a superannuation contribution payment under section 5.99B; or
(ii) a gift permitted by section 5.100A; or
(iii) reimbursement of an expense that is the subject of regulations made under section 5.101A; or
(iv) a fee or reimbursement of an expense in accordance with a policy adopted by the local government under section 5.129;
or
(d) an interest relating to the pay, terms or conditions of an employee unless —
(i) the relevant person is the employee; or
(ii) either the relevant person’s spouse, de facto partner or child is the employee if the spouse, de facto partner or child is living with the relevant person;
or
[(e) deleted]
(f) an interest arising only because the relevant person is, or intends to become, a member or office bearer of a body with non‑profit making objects; or
(g) an interest arising only because the relevant person is, or intends to become, a member, office bearer, officer or employee of a department of the Public Service of the State or Commonwealth or a body established under this Act or any other written law; or
(h) a prescribed interest.
(2) If a relevant person has a financial interest because the valuation of land in which the person has an interest may be affected by —
(a) any proposed change to a planning scheme for any area in the district; or
(b) any proposed change to the zoning or use of land in the district; or
(c) the proposed development of land in the district,
then, subject to subsection (3) and (4), the person is not to be treated as having an interest in a matter for the purposes of sections 5.65, 5.70 and 5.71.
(3) If a relevant person has a financial interest because the valuation of land in which the person has an interest may be affected by —
(a) any proposed change to a planning scheme for that land or any land adjacent to that land; or
(b) any proposed change to the zoning or use of that land or any land adjacent to that land; or
(c) the proposed development of that land or any land adjacent to that land,
then nothing in this section prevents sections 5.65, 5.70 and 5.71 from applying to the relevant person.
(4) If a relevant person has a financial interest because any land in which the person has any interest other than an interest relating to the valuation of that land or any land adjacent to that land may be affected by —
(a) any proposed change to a planning scheme for any area in the district; or
(b) any proposed change to the zoning or use of land in the district; or
(c) the proposed development of land in the district,
then nothing in this section prevents sections 5.65, 5.70 and 5.71 from applying to the relevant person.
(5) A reference in subsection (2), (3) or (4) to the development of land is a reference to the development, maintenance or management of the land or of services or facilities on the land.
[Section 5.63 amended: No. 1 of 1998 s. 15; No. 64 of 1998 s. 32; No. 28 of 2003 s. 111; No. 49 of 2004 s. 52; No. 17 of 2009 s. 27; No. 26 of 2016 s. 12; No. 11 of 2023 s. 70; No. 47 of 2024 s. 54.]
[5.64. Deleted: No. 28 of 2003 s. 112.]
5.65. Members’ interests in matters to be discussed at meetings to be disclosed
(1) A member who has an interest in any matter to be discussed at a council or committee meeting that will be attended by the member must disclose the nature of the interest —
(a) in a written notice given to the CEO before the meeting; or
(b) at the meeting immediately before the matter is discussed.
(2) It is a defence to a prosecution under this section if the member proves that the member did not know —
(a) that the member had an interest in the matter; or
(b) that the matter in which the member had an interest would be discussed at the meeting.
(3) This section does not apply to a person who is a member of a committee referred to in section 5.9(2)(f).
[Section 5.65 amended: No. 47 of 2024 s. 160 and 161.]
5.66. Meeting to be informed of disclosures
If a member has disclosed an interest in a written notice given to the CEO before a meeting then —
(a) before the meeting the CEO is to cause the notice to be given to the person who is to preside at the meeting; and
(b) at the meeting the person presiding is to bring the notice and its contents to the attention of the persons present immediately before the matters to which the disclosure relates are discussed.
[Section 5.66 amended: No. 1 of 1998 s. 16; No. 64 of 1998 s. 33.]
5.67. Disclosing members not to participate in meetings
A member who makes a disclosure under section 5.65 must not —
(a) preside at the part of the meeting relating to the matter; or
(b) participate in, or be present during, any discussion or decision making procedure relating to the matter,
unless, and to the extent that, the disclosing member is allowed to do so under section 5.68 or 5.69.
[Section 5.67 amended: No. 47 of 2024 s. 161.]
5.68. Councils and committees may allow members disclosing interests to participate etc. in meetings
(1) If a member has disclosed, under section 5.65, an interest in a matter, the members present at the meeting who are entitled to vote on the matter —
(a) may allow the disclosing member to be present during any discussion or decision making procedure relating to the matter; and
(b) may allow, to the extent decided by those members, the disclosing member to preside at the meeting (if otherwise qualified to preside) or to participate in discussions and the decision making procedures relating to the matter if —
(i) the disclosing member also discloses the extent of the interest; and
(ii) those members decide that the interest —
(I) is so trivial or insignificant as to be unlikely to influence the disclosing member’s conduct in relation to the matter; or
(II) is common to a significant number of electors or ratepayers.
(1A) Subsection (1) does not apply if —
(a) the interest disclosed is an interest relating to a gift; and
(b) subsection (1B) or (1C) applies to the gift.
(1B) This subsection applies to the gift if the disclosing member was or is required by regulations under section 4.59(a) to provide information about the gift in relation to an election.
(1C) This subsection applies to the gift if —
(a) the amount of the gift exceeds the amount prescribed for the purposes of this subsection; or
(b) the gift is 1 of 2 or more gifts made by 1 person to the disclosing member at any time during a year and the sum of the amounts of those 2 or more gifts exceeds the amount prescribed for the purposes of this subsection.
(2) A decision under this section is to be recorded in the minutes of the meeting relating to the matter together with —
(a) the extent of any participation allowed by the council or committee; and
(b) if the decision concerns an interest relating to a gift, the information prescribed for the purposes of this paragraph.
(3) This section does not prevent the disclosing member from discussing, or participating in the decision making process on, the question of whether an application should be made to the Minister under section 5.69.
[Section 5.68 amended: No. 16 of 2019 s. 30; No. 11 of 2023 s. 71.]
5.69. Minister may allow members disclosing interests to participate etc. in meetings
(1) If a member has disclosed, under section 5.65, an interest in a matter, the council or the CEO may apply to the Minister to allow the disclosing member to participate in the part of the meeting, and any subsequent meeting, relating to the matter.
(2) An application made under subsection (1) is to include —
(a) details of the nature of the interest disclosed and the extent of the interest; and
(3) On an application under this section the Minister may allow, on any condition determined by the Minister, the disclosing member to preside at the meeting, and at any subsequent meeting, (if otherwise qualified to preside) or to participate in discussions or the decision making procedures relating to the matter if —
(a) there would not otherwise be a sufficient number of members to deal with the matter; or
(b) the Minister is of the opinion that it is in the interests of the electors or ratepayers to do so.
(4) A person must not contravene a condition imposed by the Minister under this section.
(5) A decision under this section must be recorded in the minutes of the meeting relating to the matter.
[Section 5.69 amended: No. 49 of 2004 s. 53; No. 16 of 2019 s. 31; No. 47 of 2024 s. 161.]
5.69A. Minister may exempt committee members from disclosure requirements
(1) A council or a CEO may apply to the Minister to exempt the members of a committee from some or all of the provisions of this Subdivision relating to the disclosure of interests by committee members.
(2) An application under subsection (1) is to include —
(a) the name of the committee, details of the function of the committee and the reasons why the exemption is sought; and
(3) On an application under this section the Minister may grant the exemption, on any conditions determined by the Minister, if the Minister is of the opinion that it is in the interests of the electors or ratepayers to do so.
(4) A person must not contravene a condition imposed by the Minister under this section.
[Section 5.69A inserted: No. 64 of 1998 s. 34(1); amended: No. 47 of 2024 s. 161.]
5.70. Employees to disclose interests relating to advice or reports
employee includes a person who, under a contract for services with the local government, provides advice or a report on a matter.
(2) An employee who has an interest in any matter in respect of which the employee is providing advice or a report directly to the council or a committee must disclose the nature of the interest when giving the advice or report.
(2A) Subsection (2) applies to a CEO even if the advice or report is provided in accordance with a decision made under section 5.71B(2) or (6).
(3) An employee who discloses an interest under this section must, if required to do so by the council or committee, as the case may be, disclose the extent of the interest.
[Section 5.70 amended: No. 16 of 2019 s. 32; No. 47 of 2024 s. 161.]
5.71. Employees to disclose interests relating to delegated functions
If, under Division 4, an employee has been delegated a power or duty relating to a matter and the employee has an interest in the matter, the employee must not exercise the power or discharge the duty and —
(a) in the case of the CEO, must disclose to the mayor or president the nature of the interest as soon as practicable after becoming aware that the CEO has the interest in the matter; and
(b) in the case of any other employee, must disclose to the CEO the nature of the interest as soon as practicable after becoming aware that the employee has the interest in the matter.
[Section 5.71 amended: No. 47 of 2024 s. 160 and 161.]
5.71A. CEOs to disclose interests relating to gifts in connection with advice or reports
(1) A CEO who has an interest relating to a gift in a matter in respect of which the CEO proposes to provide advice or a report, directly or indirectly, to the council or a committee must disclose the nature of the interest in a written notice given to the council.
(2) A CEO who makes a disclosure under subsection (1) must not provide the advice or report unless the CEO is allowed to do so under section 5.71B(2) or (6).
(3) A CEO who has an interest relating to a gift in a matter in respect of which another employee is providing advice or a report directly to the council or a committee must disclose the nature of the interest when the advice or report is provided.
[Section 5.71A inserted: No. 16 of 2019 s. 33; amended: No. 47 of 2024 s. 161.]
5.71B. Council or Minister may allow CEOs to provide advice or reports
relevant gift means the gift to which the interest disclosed under section 5.71A(1) relates.
(2) The council may allow the CEO to provide the advice or report to which a disclosure under section 5.71A(1) relates if —
(a) the amount of the relevant gift does not exceed the amount prescribed for the purposes of this section; and
(b) the council decides that the nature of the interest disclosed is unlikely to influence the CEO in the provision of the advice or report.
(3) A decision of the council under subsection (2) must be recorded in the minutes of the council meeting at which the decision is made.
(4) The council may apply to the Minister to allow the CEO to provide the advice or report to which a disclosure under section 5.71A(1) relates if the amount of the relevant gift exceeds the amount prescribed for the purposes of this section.
(5) An application under subsection (4) must include —
(a) details of the nature of the interest disclosed; and
(6) On an application under subsection (4), the Minister may allow, on any condition determined by the Minister, the CEO to provide the advice or report if the Minister is of the opinion that it is in the interests of the electors or ratepayers to do so.
(7) A decision of the Minister under subsection (6) must be recorded in the minutes of the council meeting at which the decision is considered.
(8) For the purposes of subsections (2)(a) and (4), if the relevant gift is 1 of 2 or more gifts made by 1 person to the CEO at any time during a year, the amount of the relevant gift is the sum of the amounts of those 2 or more gifts.
[Section 5.71B inserted: No. 16 of 2019 s. 33.]
5.72. Defence to prosecution
It is a defence to a prosecution under section 5.70(2), 5.71 or 5.71A(1) or (3) if the person proves that the person did not know that the person had an interest in the matter.
[Section 5.72 amended: No. 16 of 2019 s. 34; No. 47 of 2024 s. 160.]
5.73. Disclosures to be minuted
A disclosure under section 5.65, 5.70 or 5.71A(3) is to be recorded in the minutes of the meeting relating to the disclosure.
[Section 5.73 amended: No. 16 of 2019 s. 35.]
Subdivision 2 — Disclosure of financial interests in returns
5.74. Terms used
(1) In this Subdivision, unless the contrary intention appears —
address means —
(a) in relation to a person other than a corporation, the last residential or business address of the person known to the person disclosing the address in a return; or
(b) in relation to a corporation, the address of the registered office or principal place of business of the corporation in the State or, where there is no such office or place, the address of the principal office or place of business of the corporation in the place in which it is incorporated or taken to be registered; or
(c) in relation to any real property, the postal address of the property or the particulars of title of the property;
annual return means a return required by section 5.76;
corporation means any body corporate, whether formed or incorporated within or outside the State, and includes any company or foreign company (as those terms are defined in the Corporations Act 2001 of the Commonwealth) but does not include —
(a) a body corporate that is incorporated within Australia or an external Territory and is a public authority or an instrumentality or agency of the Crown; or
(b) a corporation sole; or
[(c), (d) deleted]
(e) an association, society, institution or body incorporated, or taken to be incorporated, under the Associations Incorporation Act 2015;
designated employee means —
(a) a CEO; and
(b) an employee, other than the CEO, to whom any power or duty has been delegated under Division 4; and
(c) an employee who is a member of a committee comprising council members and employees; and
(d) an employee nominated by the local government to be a designated employee;
primary return means a return required by section 5.75;
relative, in relation to a relevant person, means any of the following —
(a) a parent, grandparent, brother, sister, uncle, aunt, nephew, niece, lineal descendant of the relevant person or of the relevant person’s spouse or de facto partner;
(b) the relevant person’s spouse or de facto partner or the spouse or de facto partner of any relative specified in paragraph (a),
whether or not the relationship is traced through, or to, a person whose parents were not actually married to each other at the time of the person’s birth or subsequently, and whether the relationship is a natural relationship or a relationship established by a written law;
relevant person means a person who is a council member or a designated employee;
return means a primary or an annual return;
return period, in relation to an annual return required to be lodged by a relevant person in a particular year, means —
(a) if the last return lodged by the relevant person was a primary return, the period commencing on the day after the start day for the primary return and ending on 30 June in that year; or
(b) if the last return lodged by the relevant person was an annual return, the period of 12 months ending on 30 June in that year;
start day means —
(a) in the case of a council member, the day on which the council member made the declaration referred to in section 2.29; or
(b) in the case of a designated employee, the day on which the person became a designated employee.
(2) A reference in this Subdivision to a disclosure concerning any income, corporation or any other thing (not being real property), includes a reference to a disclosure concerning any income derived, corporation incorporated (or taken to be registered), or other thing arising or received, outside this State.
(3) For the purposes of this Subdivision, loans made, or goods or services supplied, to a relevant person by 2 or more related bodies corporate (as defined in the Corporations Act 2001 of the Commonwealth) are taken to have been made or supplied by a single corporation.
[Section 5.74 amended: No. 1 of 1998 s. 17; No. 26 of 1999 s. 92(2); No. 10 of 2001 s. 122; No. 28 of 2003 s. 113; No. 24 of 2009 s. 516; No. 30 of 2015 s. 223; No. 16 of 2019 s. 36; No. 47 of 2024 s. 160.]
5.75. Primary returns
(1) A relevant person other than the CEO must lodge with the CEO a primary return in the prescribed form within 3 months of the start day.
(2) A CEO must lodge with the mayor or president a primary return in the prescribed form within 3 months of the start day.
(3) This section does not apply to a person who —
(a) has lodged a return within the previous year; or
(b) has, within 3 months of the start day, ceased to be a relevant person.
[Section 5.75 amended: No. 47 of 2024 s. 55.]
5.76. Annual returns
(1) Each year, a relevant person other than the CEO must lodge with the CEO an annual return in the prescribed form by 31 August of that year.
(2) Each year, a CEO must lodge with the mayor or president an annual return in the prescribed form by 31 August of that year.
[Section 5.76 amended: No. 1 of 1998 s. 18; No. 66 of 2006 s. 12; No. 47 of 2024 s. 56.]
5.77. Acknowledging receipt of returns
On receipt of a return under section 5.75 or 5.76 from a person, the CEO or the mayor or president, as the case may be, is to give the person written acknowledgment of having received the return.
5.78. Information to be disclosed in returns
(1) A relevant person must comply with the requirements of sections 5.79, 5.80, 5.81, 5.84, 5.85 and 5.86 in relation to the disclosure of information in a return.
(2) Nothing in this Subdivision requires a relevant person to —
(a) include in a return any information which has been disclosed in a previous return made by the relevant person; or
(b) disclose the actual value, amount or extent of any asset, income, interest, debt or disposition referred to in section 5.79, 5.80, 5.81, 5.84, 5.85 or 5.86.
[Section 5.78 amended: No. 17 of 2009 s. 28; No. 2 of 2016 s. 34; No. 47 of 2024 s. 161.]
5.79. Real property
(1) A relevant person is to disclose in a primary return and an annual return —
(a) the address of each parcel of real property, located in the district or in an adjoining district, in which the person had an interest —
(i) in the case of a primary return, on the start day; and
(ii) in the case of an annual return, at any time during the return period;
and
(b) the nature of the interest in each parcel of real property to which paragraph (a) applies.
(2) Nothing in this Subdivision requires a relevant person to disclose in a return an interest in a parcel of real property to which subsection (1) applies if the person had the interest only —
(a) in the capacity of executor or administrator of the estate of a deceased person and the person was not a beneficiary under the will or did not have an entitlement under the intestacy; or
(b) in the capacity of trustee and the person acquired the interest in the ordinary course of an occupation of the person which is not related to the person’s duties as a council member or employee; or
(c) by way of security for a debt.
interest means any estate, interest, right or power whatever, whether at law or in equity, in or over real property.
[Section 5.79 amended: No. 47 of 2024 s. 160.]
5.80. Source of income
(1) A relevant person is to disclose —
(a) in a primary return, each source from which the person reasonably expects to receive income in the period commencing on the start day and ending on the next 30 June; and
(b) in an annual return, each source from which income was received by the person at any time during the return period.
(2) A reference in subsection (1) to each source from which income was received, or is reasonably expected to be received, by a person is a reference to —
(a) in relation to income from an occupation of the person —
(i) a description of the occupation; and
(ii) if the person is employed or the holder of an office, the name and address of the person’s employer or a description of the office; and
(iii) if the person has entered into a partnership with other persons, the name (if any) under which the partnership is conducted;
and
(b) in relation to income from a trust, the name and address of the settlor and the trustee; and
(c) in relation to any other income, a description sufficient to identify the person from whom, or the circumstances in which, the income was, or is reasonably expected to be, received.
(3) Nothing in this Subdivision requires a relevant person to disclose in a return the source of any income if the amount of the income received, or reasonably expected to be received, by the person from that source did not exceed the prescribed amount, or is not reasonably expected to exceed the prescribed amount.
income means assessable income within the meaning of the Income Tax Assessment Act 1936 of the Commonwealth, but does not include fees, reimbursement of expenses or allowances referred to in Division 8.
[Section 5.80 amended: No. 47 of 2024 s. 160.]
5.81. Trusts
A relevant person is to disclose in a primary return and in an annual return the name and address of the settlor and the trustee of any trust in which the person held a beneficial interest, or of any discretionary trust of which the person was a trustee or object, other than a trust to which section 5.80(2)(b) applies, in the case of —
(a) a primary return, on the start day; and
(b) an annual return, at any time during the return period.
[5.82, 5.83. Deleted: No. 16 of 2019 s. 37
5.84. Interests and positions in corporations
(1) A relevant person is to disclose in a primary return and in an annual return —
(a) the name of each corporation of which the person was a member or in which the person otherwise had an interest or held any position (whether remunerated or not) in the case of —
(i) a primary return, on the start day; and
(ii) an annual return, at any time during the return period;
and
(b) the nature of the interest, or the description of the position held, in each corporation to which paragraph (a) applies; and
(c) for each corporation to which paragraph (a) applies, other than corporations whose shares are quoted on a prescribed financial market in Australia —
(i) its address; and
(ii) a description of its principal business.
interest means a relevant interest (within the meaning given by section 9 of the Corporations Act 2001 of the Commonwealth) in any securities (within the meaning given by section 92 of that Act) issued or made available by the corporation;
prescribed financial market has the meaning given by section 9 of the Corporations Act 2001 of the Commonwealth.
[Section 5.84 inserted: No. 64 of 1998 s. 35; amended: No. 10 of 2001 s. 123; No. 21 of 2003 s. 15(2) and (3); No. 47 of 2024 s. 160.]
5.85. Debts
(1) A relevant person is to disclose in a primary return and an annual return the name and address of each person to whom the relevant person was liable to pay any debt —
(a) in the case of a primary return, on the start day; or
(b) in the case of an annual return, at any time during the return period,
whether or not the amount, or any part of the amount, to be paid was due and payable on the start day or at any time during the return period, as the case may be.
(2) Nothing in this Subdivision requires a relevant person to disclose in a return a liability to pay a debt if —
(a) the amount to be paid did not exceed the prescribed amount on the start day or at any time during the return period, as the case may be, unless —
(i) the debt was one of 2 or more debts which the person was liable to pay to one person on the start day or at any time during the return period, as the case may be; and
(ii) the sum of the amounts to be paid exceeded the prescribed amount;
or
(b) the person was liable to pay the debt to a relative; or
(c) in the case of a debt arising from a loan of money, the person was liable to pay the debt to an ADI (authorised deposit‑taking institution) as defined in section 5 of the Banking Act 1959 of the Commonwealth or other person whose ordinary business includes the lending of money and the loan was made in the ordinary course of business of the lender; or
(d) in the case of a debt arising from the supply of goods or services —
(i) the goods or services were supplied in the period of 18 months immediately preceding the start day or were supplied during the return period, as the case may be; or
(ii) the goods or services were supplied in the ordinary course of an occupation of the person which is not related to the person’s duties as a council member or employee.
(3) In subsections (1) and (2) —
debt means a debt arising from —
(a) a loan of money; or
(b) the supply of goods or services.
[Section 5.85 amended: No. 26 of 1999 s. 92(3); No. 47 of 2024 s. 160.]
5.86. Dispositions of property
(1) A relevant person is to disclose in an annual return particulars of each disposition by the person of real property —
(a) located in the district or in an adjoining district, in which property the person had an interest;
(b) by which disposition the relevant person retained, either wholly or in part, the use and benefit of the property or the right to re‑acquire the property at a later time,
which was made at any time during the return period.
(2) A relevant person is to disclose in an annual return particulars of each disposition of real property —
(a) located in the district or in an adjoining district, in which property the relevant person had an interest; and
(b) to a person by any person other than the relevant person under arrangements made by the relevant person; and
(c) by which disposition the relevant person obtained, either wholly or in part, the use and benefit of the property,
which was made at any time during the return period.
disposition of real property means any conveyance, transfer, assignment, settlement, payment or other alienation of real property, and includes —
(a) the creation of a trust in respect of real property; and
(b) the grant or creation of any lease, mortgage, charge, easement, licence, power, partnership or interest in respect of real property; and
(c) the release, discharge, surrender, forfeiture or abandonment, at law or in equity, of any debt, contract, chose in action or any other interest in respect of real property; and
(d) the exercise by a person of a general power of appointment over real property in favour of any other person; and
(e) any transaction entered into by any person with intent thereby to diminish, directly or indirectly, the value of his own real property and to increase the value of the property of any other person.
5.87. Discretionary disclosures generally
A relevant person may, at the person’s discretion, disclose in any return any direct or indirect benefits, advantages or liabilities, whether financial or not —
(a) which are not required to be disclosed by any other provision of this Subdivision; and
(b) which the person considers might appear to raise a conflict between the person’s private interests and the person’s duty as a council member or a designated employee or which the person otherwise desires to disclose.
[Section 5.87 amended: No. 47 of 2024 s. 160.]
5.87AA. Inspector must be notified of failure to lodge returns and errors and omissions in returns
(1) The CEO must notify the Inspector if —
(a) a relevant person does not lodge a primary return or an annual return with the CEO in accordance with this Subdivision; or
(b) the CEO believes that a primary return or an annual return lodged by a relevant person with the CEO contains errors or omissions.
(2) The mayor or president must notify the Inspector if —
(a) the CEO does not lodge a primary return or an annual return with the mayor or president in accordance with this Subdivision; or
(b) the mayor or president believes that a primary return or an annual return lodged by the CEO with the mayor or president contains errors or omissions.
(3) A notification under subsection (1)(b) or (2)(b) must include a copy of the primary return or annual return in question.
(4) A notification under subsection (1) or (2) must —
(a) be made in a form approved by the Inspector; and
(b) be given to the Inspector within 14 days after the day on which the CEO, or the mayor or president, as the case requires, becomes aware that the primary return or annual return has not been lodged as required or forms their belief that the primary return or annual return contains errors or omissions.
[Section 5.87AA inserted: No. 47 of 2024 s. 57.]
Subdivision 2A — Disclosure of gifts
[Heading inserted: No. 16 of 2019 s. 38.]
5.87A. Council members to disclose gifts
(1) A council member must disclose, in accordance with subsection (2) and section 5.87C, a gift received by the council member.
(2) The disclosure must be made in writing to the CEO.
(3) A person does not commit an offence against subsection (1) if —
(a) the amount of the gift does not exceed the amount prescribed for the purposes of this paragraph; or
(b) the gift is not received by the person in their capacity as a council member.
(4) For the purposes of subsection (3)(a), if the gift is 1 of 2 or more gifts made by 1 person to the council member at any time during a year, the amount of the gift is the sum of the amounts of those 2 or more gifts.
(5) For the purposes of subsection (3)(b), the gift is not received by the person in their capacity as a council member if it is a gift that the person would have received even if the person were not a council member.
[Section 5.87A inserted: No. 16 of 2019 s. 38; amended: No. 47 of 2024 s. 161.]
5.87B. CEOs to disclose gifts
(1) A CEO must disclose, in accordance with subsection (2) and section 5.87C, a gift received by the CEO.
(2) The disclosure must be made in writing to the mayor or president.
(3) A person does not commit an offence against subsection (1) if —
(a) the amount of the gift does not exceed the amount prescribed for the purposes of this paragraph; or
(b) the gift is not received by the person in their capacity as the CEO.
(4) For the purposes of subsection (3)(a), if the gift is 1 of 2 or more gifts made by 1 person to the CEO at any time during a year, the amount of the gift is the sum of the amounts of those 2 or more gifts.
(5) For the purposes of subsection (3)(b), the gift is not received by the person in their capacity as the CEO if it is a gift that the person would have received even if the person were not the CEO.
[Section 5.87B inserted: No. 16 of 2019 s. 38; amended: No. 47 of 2024 s. 161.]
5.87C. Provisions about disclosure
(1) This section applies to a disclosure under section 5.87A or 5.87B.
(2) The disclosure must be made within 10 days after receipt of the gift.
(3) The disclosure must include the following —
(a) a description of the gift;
(b) the name and address of the person who made the gift;
(c) the date on which the gift was received;
(d) the estimated value of the gift at the time it was made;
(e) the nature of the relationship between the person who made the gift and the person who received the gift;
(f) in the case of a travel contribution —
(i) a description of the travel; and
(ii) the date of the travel.
[Section 5.87C inserted: No. 16 of 2019 s. 38.]
Subdivision 3 — General
5.88. Register of financial interests
(1) A CEO is to keep a register of financial interests.
(2) The register is to contain —
(a) the returns lodged under section 5.75 and 5.76; and
(b) a record of the disclosures made under sections 5.65, 5.70, 5.71 and 5.71A,
and be in the form that is prescribed (if any).
(3) As soon as is practicable after a person ceases to be a person who is required under section 5.75 or 5.76 to lodge a return, the CEO is to remove from the register all returns relating to that person.
(4) Returns lodged under section 5.75 or 5.76 and removed from the register under subsection (3) are to be kept by the CEO for a period of at least 5 years after the person who lodged the return ceased to be a council member or designated employee.
[Section 5.88 amended: No. 16 of 2019 s. 39(1).]
5.89A. Register of gifts
(1) A CEO is to keep a register of gifts.
(2) The register is to contain a record of the disclosures made under sections 5.87A and 5.87B.
(2A) The CEO must record a disclosure made under section 5.87A or 5.87B in the register within 10 days after the disclosure is made.
(2B) If a gift disclosed under section 5.87A or 5.87B is an excluded gift under section 5.62(1B)(a), the CEO must record in the register —
(a) the date of the approval referred to in section 5.62(1B)(a)(ii); and
(b) the reasons for that approval; and
(c) any prescribed information.
(3) The register is to be in the form that is prescribed (if any).
[(4) deleted]
(5) The CEO is to publish an up‑to‑date version of the register on the local government’s official website.
(5A) The version of the register published under subsection (5) must not, in the case of a disclosure about a gift made by an individual, include the address disclosed under section 5.87C(3)(b) and must instead include the town or suburb mentioned in the address.
(6) As soon as practicable after a person ceases to be a person who is required under section 5.87A or 5.87B to make a disclosure, the CEO is to remove from the register all records relating to that person.
(7) If records relating to a person are removed from the register under subsection (6), a copy of the records is, for a period of at least 5 years after the person ceases to be a person required under section 5.87A or 5.87B to make a disclosure —
(a) to be kept by the CEO; and
(b) to be made available for public inspection.
[Section 5.89A inserted: No. 2 of 2016 s. 37; amended: No. 16 of 2019 s. 40.]
[5.89B. Deleted: No. 16 of 2019 s. 41.]
5.89. Offence to give false or misleading information
A person must not, in relation to a disclosure under section 5.65, 5.70, 5.71, 5.71A, 5.87A or 5.87B or a return lodged under section 5.75 or 5.76, provide information in written or oral form that the person knows to be —
(a) false or misleading in a material particular; or
(b) likely to deceive in a material way.
[Section 5.89 amended: No. 2 of 2016 s. 38; No. 16 of 2019 s. 42; No. 47 of 2024 s. 161.]
5.90. Offence to publish information in certain cases
(1) A person must not publish —
(a) any information derived from a register of financial interests or register of gifts unless that information constitutes a fair or accurate report or summary of information contained in the register and is published in good faith; or
(b) any comment on the facts set forth in a register of financial interests or register of gifts unless that comment is fair and published in good faith.
publish has the meaning that the term has in the law of tort (as modified by the Defamation Act 2005) relating to defamation.
[Section 5.90 amended: No. 16 of 2019 s. 43; No. 47 of 2024 s. 161.]
Division 6A — Attendance at events
[Heading inserted: No. 16 of 2019 s. 44.]
5.90A. Policy for attendance at events
event includes the following —
(a) a concert;
(b) a conference;
(c) a function;
(d) a sporting event;
(e) an occasion of a kind prescribed for the purposes of this definition.
(2) A local government must prepare and adopt* a policy that deals with matters relating to the attendance of council members and the CEO at events, including —
(a) the provision of tickets to events; and
(b) payments in respect of attendance; and
(c) approval of attendance by the local government and criteria for approval; and
(d) any prescribed matter.
(3) A local government may amend* the policy.
(4) When preparing the policy or an amendment to the policy, the local government must comply with any prescribed requirements relating to the form or content of a policy under this section.
(5) The CEO must publish an up‑to‑date version of the policy on the local government’s official website.
[Section 5.90A inserted: No. 16 of 2019 s. 44.]
Division 7 — Access to information
5.91. Interpretation
A reference in this Division to a council member, a committee member or an employee performing a function under a written law other than this Act does not include a reference to a council member, a committee member or an employee performing a function in a capacity other than that of council member, a committee member or an employee, as the case may be, under this Act.
5.92. Access to information by council, committee members
(1) A person who is a council member or a committee member can have access to any information held by the local government that is relevant to the performance by the person of any of the person’s functions under this Act or under any other written law.
(2) Without limiting subsection (1), a council member can have access to —
(a) all written contracts entered into by the local government; and
(b) all documents relating to written contracts proposed to be entered into by the local government.
(4) This section does not give a council member or committee member the right to have access to the following information —
(a) a contract with an employee, other than the CEO or a senior employee, entered into by the local government;
(b) documents relating to a contract with an employee, other than the CEO or a senior employee, proposed to be entered into by the local government;
(c) any employment record of an employee;
(d) personal information about an individual that is not relevant to a matter on which the council or committee is to make a decision;
(e) information the local government is prohibited or restricted from disclosing to the council member or committee member under a secrecy provision;
(f) information that is not relevant to the functions of the council member or committee member under this Act or another written law;
(g) information of a kind prescribed by the regulations.
(5) In subsection (4) —
personal information means information about an individual whose identity is apparent or can reasonably be ascertained from the information;
secrecy provision means a provision of a written law that prohibits or regulates the handling of information.
[Section 5.92 amended: No. 47 of 2024 s. 58 and 160.]
5.93. Improper use of information
A person who is a council member, a committee member or an employee must not make improper use of any information acquired in the performance by the person of any of the person’s functions under this Act or any other written law —
(a) to gain directly or indirectly an advantage for the person or any other person; or
(b) to cause detriment to the local government or any other person.
[Section 5.93 amended: No. 47 of 2024 s. 160 and 161.]
5.94. Public can inspect certain local government information
A person can attend the office of a local government during office hours and, unless it would be contrary to section 5.95, inspect, free of charge, in the form or medium in which it is held by the local government and whether or not it is current at the time of inspection —
(a) any code of conduct;
[(aa) and (ab) deleted]
(b) any register of financial interests;
(ba) any register of gifts;
(c) any annual report;
(d) any annual budget;
(e) any list of fees and charges imposed under section 6.16;
(f) any plan for the future of the district made in accordance with section 5.56;
(g) any proposed local law of which the local government has given local public notice under section 3.12(3);
(ga) any proposed local law in respect of which the local government has published a notice on its official website under section 3.12(3C);
(h) any local law made by the local government in accordance with section 3.12;
(i) any regulations made by the Governor under section 9.60 that operate as if they were local laws of the local government;
(j) any text that —
(i) is adopted (whether directly or indirectly) by a local law of the local government or by a regulation that is to operate as if it were a local law of the local government; or
(ii) would be adopted by a proposed local law of which the local government has given local public notice under section 3.12(3); or
(iii) would be adopted by a proposed local law in respect of which the local government has published a notice on its official website under section 3.12(3C);
(k) any subsidiary legislation made or adopted by the local government under any written law other than under this Act;
(l) any written law having a provision in respect of which the local government has a power or duty to enforce;
(m) any rate record;
(n) any confirmed minutes of council or committee meetings;
(o) any minutes of electors’ meetings;
(p) any notice papers and agenda relating to any council or committee meeting and reports and other documents that have been —
(ii) produced by the local government or a committee for presentation at a council or committee meeting and which have been presented at the meeting;
(q) any report of a review of a local law prepared under section 3.16(3);
(r) any business plan prepared under section 3.59;
(s) any register of owners and occupiers under section 4.32(6) and electoral rolls;
[(t) deleted]
(ta) a report on a supplementary audit prepared under section 7.12AH(1);
(u) such other information relating to the local government —
(i) required by a provision of this Act to be available for public inspection; or
(ii) as may be prescribed.
[Section 5.94 amended: No. 49 of 2004 s. 42(7); No. 1 of 2007 s. 7; No. 5 of 2017 s. 9; No. 16 of 2019 s. 45; No. 47 of 2024 s. 59.]
[Section 5.94 modified: SL 2020/57 1M.]
5.95. Further provisions relating to right to inspect local government information
(1) A person’s right to inspect information referred to in section 5.94 does not extend to the inspection of information —
(a) which is not current at the time of inspection; and
(b) which, in the CEO’s opinion, would divert a substantial and unreasonable portion of the local government’s resources away from its other functions.
(2) A person’s right to inspect information referred to in section 5.94 does not extend to the inspection of information referred to in paragraph (m), (n), (p) or (u) of that section if the information relates to any debt owed to the local government by a person other than the first‑mentioned person.
(3) Subject to subsection (4), a person’s right to inspect information referred to in section 5.94 does not extend to the inspection of information referred to in paragraph (n) or (p) of that section if the meeting or that part of the meeting to which the information refers was closed to members of the public.
(4) Subsection (3) does not apply in relation to information —
(a) that is a record of the decisions made at a meeting of a council, a committee or electors; or
(b) of a kind prescribed as being information that can be inspected by members of the public despite subsection (3).
[(5) deleted]
(6) Subject to subsection (7), a person’s right to inspect information referred to in section 5.94 does not extend to the inspection of information —
(a) referred to in a paragraph of that section that is prescribed as being confidential information for the purposes of this subsection; or
(b) referred to in that section of a type prescribed as confidential for the purposes of this subsection,
for the period of time prescribed in relation to the information.
(7) Subsection (6) does not apply in respect of information in relation to a local government if —
(a) the information is prescribed as information that is confidential but that may be available for inspection if the local government so resolves; and
(b) the local government has resolved that the information is to be available for inspection.
(8) A person’s right to inspect information referred to in section 5.94 does not extend to the inspection of information referred to in paragraph (m) of that section if the information is information that has been omitted by regulations made under section 4.38 from the electoral roll for the protection of an elector or the elector’s family.
(9) Information may be prescribed for the purposes of section 5.94(u)(ii) whether or not the information is required to be generated, obtained, provided or kept under another provision of this Act.
[Section 5.95 amended: No. 49 of 2004 s. 54; No. 16 of 2019 s. 46; No. 11 of 2023 s. 76(2); No. 47 of 2024 s. 160.]
5.96. Copies of information to be available
If a person can inspect certain information under this Division, the person may request a copy of the information and, unless regulations prescribe otherwise, the local government is to ensure that copies are available and that the price at which it sells copies does not exceed the cost of providing the copies.
[Section 5.96 amended: No. 17 of 2009 s. 31.]
5.96A. Information published on official website
(1) The CEO must publish the following information on the local government’s official website, unless it would be contrary to subsection (2) to do so —
(a) a map of the district showing the district boundaries and, if the district is divided into wards, the ward boundaries;
(b) an up‑to‑date consolidated version of any local law made by the local government in accordance with section 3.12 that is in force;
(c) the annual budget;
(d) an up‑to‑date list of fees and charges imposed under section 6.16;
(e) current plans for the future of the district made under section 5.56;
(f) confirmed minutes of council or committee meetings;
(g) minutes of electors’ meetings;
(h) notice papers and agenda relating to council or committee meetings and reports and other documents that have been —
(ii) produced by the local government or a committee for presentation at a council or committee meeting and that have been presented at the meeting;
(i) information of a kind prescribed for the purposes of this subsection or required by another provision of this Act to be published on the website.
(2) The CEO must not publish information referred to in subsection (1)(f) or (h) if the meeting or that part of the meeting to which the information refers was closed to members of the public.
(3) Subsection (2) does not apply to information —
(a) that is a record of decisions made at a council or committee meeting; or
(b) of a kind prescribed as being information that can be published despite subsection (2).
(3B) A kind of information may be prescribed for the purposes of subsection (1) as provided for by subsection (1)(i) whether or not that kind of information is required to be generated, obtained, provided or kept under another provision of this Act.
(4) The CEO must ensure that the following information is not published on the local government’s official website —
(a) rate records;
(b) the register of owners and occupiers under section 4.32(6) and electoral rolls;
(c) information of a kind prescribed for the purposes of this subsection.
(5) Regulations may specify the period for which information referred to in subsection (1) must be kept on the local government’s official website, and may specify different periods for different kinds of information.
[Section 5.96A inserted: No. 16 of 2019 s. 47; amended: No. 11 of 2023 s. 77(3).]
5.96C. Record of information about conduct
(1) The CEO must maintain a record of information about the following —
(a) behavioural breaches by a council member that are found under the local government’s code of conduct to have occurred;
(b) recurrent breaches that are found under section 8A.14(4) to have been committed by a council member;
(c) conduct breaches by a council member that are found under section 8A.18 to have occurred;
(d) specified breaches that are found under section 8A.25 to have been committed by a council member;
(e) orders made under section 8A.14(5), 8A.18(4), 8A.21(2)(b), 8A.25 or 8A.27(2)(b) in respect of a council member;
(f) any other prescribed information about the conduct of a person who is, or of a person when they were, a council member, the CEO or another employee.
(2) In subsection (1)(a) to (e), references to a council member include a former council member.
(3) The CEO must publish an up‑to‑date version of the record of information on the local government’s official website.
(4) Regulations may specify any of the following —
(a) information that must be included in a record of information;
(b) information that must not be included in a record of information;
(c) the period for which information must be kept in a record of information;
(d) the period for which information included in a record of information must be kept on the local government’s official website under subsection (3) (which may be shorter than the period for which the information must be kept in the record of information under paragraph (c)).
[Section 5.96C inserted: No. 47 of 2024 s. 61.]
5.97. Freedom of Information Act 1992 not affected
Nothing in this Division affects the operation of the Freedom of Information Act 1992.
Division 8 — Local government payments and gifts to its members
[Heading inserted: No. 17 of 2009 s. 32.]
5.98. Fees, reimbursements and allowances for council members
(1A) In this section —
determined means determined by the Salaries and Allowances Tribunal under the Salaries and Allowances Act 1975 section 7B.
(1) A council member who attends a council or committee meeting is entitled to be paid —
(a) the fee determined for attending a council or committee meeting; or
(b) where the local government has set a fee within the range determined for council or committee meeting attendance fees, that fee.
(2A) A council member who attends a meeting of a prescribed type at the request of the council is entitled to be paid —
(a) the fee determined for attending a meeting of that type; or
(b) where the local government has set a fee within the range determined for meetings of that type, that fee.
(2) A council member who incurs an expense of a kind prescribed as being an expense —
(a) to be reimbursed by all local governments; or
(b) which may be approved by any local government for reimbursement by the local government and which has been approved by the local government for reimbursement,
is entitled to be reimbursed for the expense in accordance with subsection (3).
(3) A council member to whom subsection (2) applies is to be reimbursed for the expense —
(a) where the extent of reimbursement for the expense has been determined, to that extent; or
(b) where the local government has set the extent to which the expense can be reimbursed and that extent is within the range determined for reimbursement, to that extent.
(4) If an expense is of a kind that may be approved by a local government for reimbursement, then the local government may approve reimbursement of the expense either generally or in a particular case but nothing in this subsection limits the application of subsection (3) where the local government has approved reimbursement of the expense in a particular case.
(5) The mayor or president of a local government is entitled, in addition to any entitlement that the mayor or president has under subsection (1) or (2), to be paid —
(a) the annual local government allowance determined for mayors or presidents; or
(b) where the local government has set an annual local government allowance within the range determined for annual local government allowances for mayors or presidents, that allowance.
(6) A local government cannot make any payment to, or reimburse an expense of, a person who is a council member or a mayor or president in that person’s capacity as council member, mayor or president unless the payment or reimbursement is in accordance with —
(a) this Division; or
(b) a policy adopted by the local government under section 5.129.
(6A) Neither subsection (6), nor any other provision of this Act, prevents a local government from doing the following —
(a) making a unanimous resolution as referred to in the Taxation Administration Act 1953 (Commonwealth) Schedule 1 section 12‑45(1)(e);
(b) if the local government makes such a resolution — doing anything under the Taxation Administration Act 1953 (Commonwealth), the Superannuation Guarantee (Administration) Act 1992 (Commonwealth) or any other law of the Commonwealth as a result of the making of the resolution.
[(7) deleted]
[Section 5.98 amended: No. 64 of 1998 s. 36; No. 17 of 2009 s. 33; No. 2 of 2012 s. 14; No. 11 of 2023 s. 79; No. 47 of 2024 s. 62 and 160.]
5.98A. Allowance for deputy mayor or deputy president
(1) A local government may decide* to pay the deputy mayor or deputy president of the local government an allowance of up to the percentage that is determined by the Salaries and Allowances Tribunal under the Salaries and Allowances Act 1975 section 7B of the annual local government allowance to which the mayor or president is entitled under section 5.98(5).
(2) An allowance under subsection (1) is to be paid in addition to any amount to which the deputy mayor or deputy president is entitled under section 5.98.
[Section 5.98A inserted: No. 64 of 1998 s. 37; amended: No. 2 of 2012 s. 15.]
5.99. Annual fee for council members in lieu of fees for attending meetings
A local government may decide* that instead of paying council members a fee referred to in section 5.98(1), it will instead pay all council members who attend council or committee meetings —
(a) the annual fee determined by the Salaries and Allowances Tribunal under the Salaries and Allowances Act 1975 section 7B; or
(b) where the local government has set a fee within the range for annual fees determined by that Tribunal under that section, that fee.
[Section 5.99 amended: No. 2 of 2012 s. 16.]
5.99A. Allowances for council members in lieu of reimbursement of expenses
(1) A local government may decide* that instead of reimbursing council members under section 5.98(2) for all of a particular type of expense it will instead pay all eligible council members —
(a) the annual allowance determined by the Salaries and Allowances Tribunal under the Salaries and Allowances Act 1975 section 7B for that type of expense; or
(b) where the local government has set an allowance within the range determined by the Salaries and Allowances Tribunal under the Salaries and Allowances Act 1975 section 7B for annual allowances for that type of expense, an allowance of that amount,
and only reimburse the member for expenses of that type in excess of the amount of the allowance.
(2) For the purposes of subsection (1), a council member is eligible to be paid an annual allowance under subsection (1) for a type of expense only in the following cases —
(a) in the case of an annual allowance that is paid in advance, if it is reasonably likely that the council member will incur expenses of that type during the period to which the allowance relates;
(b) in the case of an annual allowance that is not paid in advance, if the council member has incurred expenses of that type during the period to which the allowance relates.
[Section 5.99A inserted: No. 64 of 1998 s. 38; amended: No. 2 of 2012 s. 17; No. 26 of 2016 s. 13.]
5.99B. Superannuation for council members: main provisions
(1) In this section and sections 5.99C to 5.99E —
remuneration has the same meaning that it has in the Superannuation Guarantee (Administration) Act 1992 (Commonwealth) section 11(1)(e);
superannuation contribution payment, in relation to a council member, means —
(a) a payment of a prescribed type that is towards, or otherwise relates to, superannuation or retirement benefits for the council member; or
(b) in the absence of regulations made for the purposes of paragraph (a) — a payment that is a contribution to an account that —
(i) is nominated by the council member to the local government; and
(ii) is for superannuation or retirement benefits from a scheme or fund to which the Superannuation Guarantee (Administration) Act 1992 (Commonwealth) applies.
(2) A local government may decide* to pay superannuation contribution payments for its council members under this section.
(3) A local government may revoke* a decision made by it under subsection (2).
(4) Regulations may require a local government, for which no decision under subsection (2) is in effect, to pay superannuation contribution payments for its council members under this section.
(5) Regulations may make provision for determining —
(a) when a superannuation contribution payment for a council member is payable; and
(b) the amount of a superannuation contribution payment for a council member.
(6) Subsections (7) and (8) apply in the absence of regulations made for the purposes of subsection (5).
(7) A superannuation contribution payment for a council member is payable with, and at the same time as, any remuneration of the council member paid by the local government.
(8) The amount of the superannuation contribution payment is the amount that the local government would have been required to contribute under the Superannuation Guarantee (Administration) Act 1992 (Commonwealth) as superannuation if —
(a) the council member were an employee of the local government for the purposes of that Act; and
(b) the remuneration were salary or wages of the council member for the purposes of that Act.
(9) This section is subject to sections 5.99C and 5.99D.
[Section 5.99B inserted: No. 47 of 2024 s. 63.]
5.99C. Superannuation for council members: opt outs
(1) This section applies to a local government —
(a) for which a decision under section 5.99B(2) is in effect; or
(b) to which a requirement under regulations made for the purposes of section 5.99B(4) applies.
(2) A council member may, by written notice to the CEO (an opt‑out notice), opt out of superannuation contribution payments.
(3) An opt‑out notice remains in effect unless, and until, the council member, by written notice to the CEO, revokes the opt‑out notice.
(4) If an opt‑out notice is in effect, the local government cannot pay a superannuation contribution payment for the council member under section 5.99B.
If an opt‑out notice is revoked, the local government cannot pay a superannuation contribution payment for the council member that the local government could not previously pay because of this subsection.
[Section 5.99C inserted: No. 47 of 2024 s. 63.]
5.99D. Superannuation for council members: other exceptions
(1) This section applies to a local government —
(a) for which a decision under section 5.99B(2) is in effect; or
(b) to which a requirement under regulations made for the purposes of section 5.99B(4) applies.
(2) A local government cannot pay a superannuation contribution payment for a council member under section 5.99B at any time when the Taxation Administration Act 1953 (Commonwealth) Schedule 1 section 12‑45(1)(e) applies in relation to the local government.
(3) Subsection (4) applies in the absence of regulations made for the purposes of paragraph (a) of the definition of superannuation contribution payment in section 5.99B(1).
(4) A local government cannot pay a superannuation contribution payment for a council member under section 5.99B if the council member has not, before the time at which the superannuation contribution payment must be paid, nominated an account to the local government as referred to in paragraph (b) of the definition of superannuation contribution payment in section 5.99B(1).
(5) Regulations may prescribe circumstances in which a local government —
(a) cannot pay a superannuation contribution payment for a council member under section 5.99B; or
(b) can pay only a portion of the amount of each superannuation contribution payment for a council member under section 5.99B.
(6) Regulations may make provision for determining the portion referred to in subsection (5)(b).
A superannuation contribution payment, or a portion of a superannuation contribution payment, that a local government cannot pay for a council member under subsection (2) or (4), or under a provision of regulations made for the purposes of subsection (5), cannot be paid by the local government after the subsection or provision of regulations has ceased to apply. For example, if a local government cannot pay a superannuation contribution payment for a council member under subsection (2), the local government cannot pay the superannuation contribution payment after the Taxation Administration Act 1953 (Commonwealth) Schedule 1 section 12‑45(1)(e) ceases to apply in relation to the local government.
[Section 5.99D inserted: No. 47 of 2024 s. 63.]
5.99E. Superannuation for council members: supplementary provisions
(1) For the purposes of subsection (2), this subsection applies to a case in which —
(a) section 5.102AB, 8.29(5)(b), 8.30B(4)(b) or 8A.25(4)(b) applies, or regulations made for the purposes of section 5.126(3)(b) apply, in relation to an annual allowance or annual fee paid in advance to a person (the relevant person); and
(b) the local government paid a superannuation contribution payment for the relevant person under section 5.99B wholly or partly by reference to, or otherwise in connection with, the annual allowance or annual fee.
(2) Regulations may, in respect of a case to which subsection (1) applies, make provision —
(a) requiring the relevant person to pay the local government an amount (the returnable amount) that is equal to a percentage of the amount of the superannuation contribution payment; and
(b) for determining that percentage (which may be 100%); and
(c) for the local government to recover the returnable amount if it is not paid.
(3) In making a determination under the Salaries and Allowances Act 1975 section 7B, the Salaries and Allowances Tribunal must not take into account either of the following —
(a) the payment of superannuation contribution payments by a local government under section 5.99B;
(b) a local government’s power to decide to pay, or its duty to pay, superannuation contribution payments under section 5.99B.
(4) Nothing in section 5.99B, 5.99C or 5.99D or this section, or that is done under section 5.99B, 5.99C or 5.99D or this section, makes a council member an employee of the local government.
(5) A superannuation contribution payment paid by a local government under section 5.99B is not salary for the purposes of any written law.
[Section 5.99E inserted: No. 47 of 2024 s. 63; amended: No. 47 of 2024 s. 64.]
5.100A. Gifts to council members
A local government cannot give a gift to a council member unless —
(a) the gift is given in prescribed circumstances; and
(b) the value of the gift is less than a prescribed amount.
[Section 5.100A inserted: No. 17 of 2009 s. 34.]
5.100. Fees paid and expenses reimbursed to committee members
committee member means a person who is a committee member but who is neither a council member nor an employee;
determined means determined by the Salaries and Allowances Tribunal under the Salaries and Allowances Act 1975 section 7BAA.
(2) A committee member who attends a meeting of the committee is entitled to be paid —
(a) the fee determined for attending a committee meeting; or
(b) if the local government has set a fee within the range determined for committee meeting attendance fees — that fee.
(3) A committee member who attends a meeting of a prescribed type at the request of the council is entitled to be paid —
(a) the fee determined for attending a meeting of that type; or
(b) if the local government has set a fee within the range determined for meetings of that type — that fee.
(4) Subsection (5) applies if a committee member incurs —
(a) an expense that is of a kind prescribed as being an expense to be reimbursed by all local governments; or
(b) an expense —
(i) that is of a kind prescribed as being an expense which may be approved by any local government for reimbursement by the local government; and
(ii) which has been approved by the local government for reimbursement.
(5) The committee member must be reimbursed for the expense —
(a) if the extent of reimbursement for the expense has been determined — to that extent; or
(b) if the local government has set the extent to which the expense can be reimbursed and that extent is within the range determined for reimbursement — to that extent.
(6) If an expense is of a kind that may be approved by a local government for reimbursement, the local government may approve reimbursement of the expense either generally or in a particular case but nothing in this subsection limits the application of subsection (5) if the local government has approved reimbursement of the expense in a particular case.
(7) A local government cannot make any payment to, or reimburse an expense of, a person who is a committee member in that person’s capacity as committee member unless the payment or reimbursement is in accordance with this section.
[Section 5.100 inserted: No. 11 of 2023 s. 80.]
5.101. Payments for employee committee members
(1) A committee member who is an employee is not to be paid a fee for attending any committee meeting.
(2) Nothing in this section prevents a local government from reimbursing an employee for an expense incurred by the employee in relation to a matter affecting the local government.
5.101A. Regulations about payment of expenses
Regulations may be made about the method of payment of an expense for which a person can be reimbursed.
[Section 5.101A inserted: No. 17 of 2009 s. 35.]
5.102. Expense may be funded before actually incurred
Nothing in this Division prevents a local government from making a cash advance to a person in respect of an expense for which the person can be reimbursed.
5.102AA. Apportionment of annual payments
A determination made by the Salaries and Allowances Tribunal under the Salaries and Allowances Act 1975 section 7B may provide for the payment of a proportion of an annual allowance or annual fee payable under this Division if a person holds the office to which the allowance or fee relates for only part of a year.
[Section 5.102AA inserted: No. 26 of 2016 s. 14.]
5.102AB. Repayment of advance annual payments if recipient ceases to hold office
(a) a local government pays an annual allowance or annual fee under this Division to a person in advance (either wholly or in part); and
(b) the person ceases to hold the office to which the allowance or fee relates before the end of the period to which the advance payment relates.
(2) Regulations may be made —
(a) requiring the repayment to a local government, to the extent determined in accordance with the regulations, of an advance payment of an annual allowance or annual fee in the circumstances to which this section applies; and
(b) providing for a local government to recover any amount repayable if it is not repaid.
[Section 5.102AB inserted: No. 26 of 2016 s. 14.]
5.102AC. Application of this Division to regional local governments
(1) This Division applies, and is to be taken to have always applied, in accordance with section 3.66(1) and (5) to and in relation to regional local governments, members and deputy members of the councils of regional local governments and chairmen and deputy chairmen of regional local governments.
(2) This section does not limit section 3.66.
[Section 5.102AC inserted: No. 26 of 2016 s. 14.]
Division 9 — Code of conduct
[Heading inserted: No. 1 of 2007 s. 8; amended: No. 16 of 2019 s. 48; No. 47 of 2024 s. 66.]
5.102A. Terms used
candidate means a candidate for election as a council member;
model code means the model code of conduct prescribed for the purposes of section 5.103(1);
rule of conduct means a provision of the model code that is specified in the model code to be a rule of conduct.
[Section 5.102A inserted: No. 1 of 2007 s. 9; amended: No. 16 of 2019 s. 49; No. 47 of 2024 s. 67.]
5.103. Model code of conduct for council members, committee members and candidates
(1) Regulations must prescribe a model code of conduct for council members, committee members and candidates.
(2) The model code of conduct must include —
(a) general principles to guide behaviour; and
(b) requirements relating to behaviour; and
(c) provisions specified to be rules of conduct.
(3) The model code of conduct may include provisions about how the following are to be dealt with —
(a) alleged breaches of the requirements referred to in subsection (2)(b);
(b) alleged breaches of the rules of conduct by committee members.
(3A) Without limiting subsection (3), the provisions of the model code of conduct may —
(a) provide for the Inspector to appoint a monitor for a local government to assist the local government to deal with matters raised by a complaint of a behavioural breach; and
(b) confer other functions on the Inspector in relation to a complaint of a behavioural breach.
(4) The model code of conduct cannot include a rule of conduct if contravention of the rule would, in addition to being a conduct breach, also be a specified breach.
(5) Regulations may amend the model code of conduct.
[Section 5.103 inserted: No. 16 of 2019 s. 50; amended: No. 47 of 2024 s. 68.]
5.104. Adoption of model code of conduct
(1) Within 3 months after the day on which regulations prescribing the model code come into operation, a local government must prepare and adopt* a code of conduct to be observed by council members, committee members and candidates that incorporates the model code.
(2) Within 3 months after the day on which regulations amending the model code come into operation, the local government must amend* the adopted code of conduct to incorporate the amendments made to the model code.
(3) A local government may include in the adopted code of conduct requirements in addition to the requirements referred to in section 5.103(2)(b), but any additional requirements —
(a) can only be expressed to apply to council members or committee members; and
(b) are of no effect to the extent that they are inconsistent with the model code.
(4) A local government cannot include in the adopted code of conduct provisions in addition to the principles referred to in section 5.103(2)(a) or the rules of conduct.
(5) The model code is taken to be a local government’s adopted code of conduct until the local government adopts a code of conduct.
(6) An alleged breach of a local government’s adopted code of conduct by a candidate cannot be dealt with under this Division or the adopted code of conduct unless the candidate has been elected as a council member.
(7) The CEO must publish an up‑to‑date version of a local government’s adopted code of conduct on the local government’s official website.
[Section 5.104 inserted: No. 16 of 2019 s. 50.]
5.105. Dealing with complaint alleging behavioural breach
(1) A complaint made by a person (the complainant) to a local government alleging a behavioural breach under the local government’s code of conduct by a person (the respondent) must be dealt with under the code of conduct unless —
(a) regulations made for the purposes of subsection (3) require the complaint to be referred to the Inspector; and
(b) the Inspector refers the complaint to be dealt with under Part 8A Division 5.
(2) A complaint under subsection (1) cannot allege a behavioural breach by a commissioner.
(3) Regulations may set out circumstances in which a complaint made to a local government alleging a behavioural breach under the local government’s code of conduct must be referred by the local government to the Inspector to be dealt with under section 8A.12(1).
(4) Neither the complainant nor the respondent may —
(a) preside at any part of a council or committee meeting relating to the complaint; or
(b) participate in, or be present during, any discussion or decision‑making procedure of a council or committee relating to the complaint.
(5) Subsection (4) does not restrict the right of the complainant and the respondent to be given a reasonable opportunity to be heard and to present evidence.
Section 8A.36 imposes confidentiality requirements in relation to complaints.
A finding that a behavioural breach has occurred is to be based on evidence from which it may be concluded that it is more likely that the breach occurred than that it did not occur.
[Section 5.106 inserted: No. 1 of 2007 s. 11; amended: No. 47 of 2024 s. 70.]
[5.107-5.125. Deleted: No. 47 of 2024 s. 71.]
Division 10 — Training and development
[Heading inserted: No. 16 of 2019 s. 61.]
5.126. Training for council members
(1) Each council member must complete training in accordance with regulations.
(a) prescribe a course of training; and
(b) prescribe the period within which training must be completed; and
(c) prescribe circumstances in which a council member is exempt from the requirement in subsection (1); and
(ca) provide for a council member to be required to provide, in accordance with the regulations, the CEO with a declaration in respect of the council member’s compliance with subsection (1); and
(d) provide that contravention of subsection (1) is an offence and prescribe a fine not exceeding $10 000 for the offence.
(3) Regulations may provide as follows, despite Division 8, in relation to a council member who contravenes subsection (1) or does not provide the CEO with a declaration in accordance with regulations made for the purposes of subsection (2)(ca) —
(a) for the council member to lose, to the extent determined in accordance with the regulations, their entitlements to fees, reimbursement of expenses and allowances under Division 8;
(b) if the local government has paid an annual allowance or annual fee under Division 8 to the council member in advance —
(i) for the council member to be required to repay to the local government, to the extent determined in accordance with the regulations, the advance payment; and
(ii) for the local government to recover any amount repayable if it is not repaid.
(4) Without limiting section 9.61(b), regulations made for the purposes of subsection (2)(ca) may do the following —
(a) provide that a council member commits an offence if the council member provides the CEO with a declaration that contains information that the council member knows —
(i) is false or misleading in a material particular; or
(ii) is likely to deceive in a material way;
(b) prescribe a fine not exceeding $10 000 for the offence.
[Section 5.126 inserted: No. 16 of 2019 s. 61; amended: No. 47 of 2024 s. 72.]
5.127. Report on training
(1) A local government must prepare a report for each financial year on the training completed by council members in the financial year.
(2) The CEO must publish the report on the local government’s official website within 1 month after the end of the financial year to which the report relates.
[Section 5.127 inserted: No. 16 of 2019 s. 61.]
5.128. Policy for continuing professional development
(1) A local government must prepare and adopt* a policy in relation to the continuing professional development of council members.
(2) A local government may amend* the policy.
(3) When preparing the policy or an amendment to the policy, the local government must comply with any prescribed requirements relating to the form or content of a policy under this section.
(4) The CEO must publish an up‑to‑date version of the policy on the local government’s official website.
(5) A local government —
(a) must review the policy after each ordinary election; and
(b) may review the policy at any other time.
[Section 5.128 inserted: No. 16 of 2019 s. 61.]
5.129. Fees and expenses
(1) A local government may prepare and adopt* a policy under which the local government undertakes to do 1 or more of the following —
(a) pay a fee to a council member in relation to their participation in a course of training that they are required to complete under section 5.126;
(b) reimburse a council member for a fee or other expense incurred by the council member in relation to their participation in a course of training that they are required to complete under section 5.126;
(c) pay a fee to a council member in relation to their participation in continuing professional development under the local government’s policy under section 5.128;
(d) reimburse a council member for a fee or other expense incurred by the council member in relation to their participation in continuing professional development under the local government’s policy under section 5.128.
(2) The local government may do the following —
(a) amend* the policy at any time;
(b) revoke* the policy at any time (with or without replacing it).
(3) The CEO must publish an up‑to‑date version of the policy on the local government’s official website.
(4) Regulations may do any of the following —
(a) prescribe monetary limits or ranges in respect of amounts that may be paid or reimbursed under a policy;
(b) provide that a policy can apply only in respect of prescribed courses of training or prescribed types of continuing professional development;
(c) otherwise provide for restrictions on the amounts that may be paid or reimbursed under a policy;
(d) make other provision in relation to the content of a policy;
(e) make provision in relation to the form of a policy;
(f) otherwise make provision in relation to policies.
(5) Despite any regulations made for the purposes of subsection (4), the Departmental CEO may authorise a local government to apply its policy to a course of training, or to any continuing professional development, to which the local government would not otherwise be authorised to apply the policy because of those regulations.
(6) Neither the Salaries and Allowances Act 1975 section 7B nor a determination made under that section limits or otherwise affects what can be done under this section.
[Section 5.129 inserted: No. 11 of 2023 s. 82.]
Division 11 — Restricting communication about complaints
[Heading inserted: No. 47 of 2024 s. 74.]
5.130. CEO may restrict communication about complaints
complaint includes a communication in the nature of a complaint, and a part of a complaint, but does not include a complaint mentioned in section 5.105.
(2) This section applies if a person (the complainant) makes a complaint (the complaint) to a local government and —
(a) the CEO is satisfied —
(i) that the local government has previously responded to the complainant regarding the subject matter of the complaint; and
(ii) that to respond to the complaint would divert an unreasonable portion of the local government’s resources away from its other operations;
or
(b) the CEO is satisfied —
(i) that the current complaint is vexatious, misconceived, frivolous or without substance; and
(ii) that to respond to the current complaint would divert an unreasonable portion of the local government’s resources away from its other operations.
(3) The CEO may decide that the local government will not communicate or otherwise deal with the complainant with respect to —
(a) the subject matter of the current complaint; or
(b) a category of subject matter into which the subject matter of the current complaint falls.
(4) If the CEO makes a decision under subsection (3), the CEO must give the complainant a notice in a form approved by the Inspector setting out —
(a) the decision; and
(b) the subject matter or category of subject matter to which the decision applies under subsection (3)(a) or (b); and
(c) the period during which the decision will apply.
(5) Regulations may —
(a) prescribe other matters that must be included in the notice; and
(b) prescribe the maximum period during which a decision under subsection (3) can apply.
(6) Nothing in this section applies to a council member or a committee member or restricts a person from —
(a) attending a council meeting or raising a question at a council meeting in accordance with this Act; or
(b) participating in an election (as defined in section 4.1); or
(c) inspecting information referred to in section 5.94 in accordance with that section; or
(d) taking any other action prescribed by the regulations.
[Section 5.130 inserted: No. 47 of 2024 s. 74.]
5.131. Guidelines for restricting communication
(1) The Minister may issue guidelines under section 9.69AA in relation to the making of a decision under section 5.130(3).
(2) Without limiting subsection (1), the guidelines may include provision for the circumstances in which the CEO may decide not to continue to communicate concerning the subject matter or category of subject matter in a complaint.
(3) The guidelines are intended to —
(a) assist the CEO in the making of a decision under section 5.130(3); and
(b) provide information to any person or body that might be affected by section 5.130.
(4) In making a decision under section 5.130(3) the CEO must take into account the guidelines that relate to the making of the decision.
(5) Nothing in subsection (4) —
(a) derogates from the CEO’s duty to exercise the CEO’s discretion in a particular case; or
(b) precludes the CEO from taking into account matters not set out in guidelines; or
(c) requires the CEO to take into account guidelines that are inconsistent with a provision of this Act.
[Section 5.131 inserted: No. 47 of 2024 s. 74.]
5.132. Inspector may direct CEO to revoke decision
(1) The Inspector may direct the CEO to revoke a decision made under section 5.130(3) if, on a complaint made under Part 8A Division 7, a finding is made that the CEO —
(a) breached a requirement of this Act in relation to the decision; or
(b) made a decision that does not take into account the guidelines mentioned in section 5.131.
(2) A direction under subsection (1) must —
(a) be in writing; and
(b) specify the time within which the CEO must comply with the direction.
(3) The CEO must —
(a) comply with the direction within the time specified; and
(b) notify the person to whom notice of the decision was given under section 5.130(4) that the decision is revoked.
[Section 5.132 inserted: No. 47 of 2024 s. 74.]
5.133. Other laws concerning access to information not affected
Nothing in this Division affects the operation of any other written law concerning access to information.
[Section 5.133 inserted: No. 47 of 2024 s. 74.]
Part 6 — Financial management
This Part deals with the financial management of local governments, including —
(a) annual budgeting; and
(b) financial accounting and reporting of the funds of local governments; and
(c) the ways (including rates and service charges, fees, charges and borrowings) in which the activities of local governments are financed.
6.1. Terms used
annual budget means the annual budget adopted by a local government under section 6.2;
budget deficiency means, in relation to a financial year, the amount referred to in section 6.2(2)(c);
differential general rate means the rate imposed under section 6.33;
general rate means a rate imposed in accordance with section 6.32(1)(a);
minimum payment means an amount imposed under section 6.35;
service charge means a service charge imposed under section 6.38;
specified area rate means a rate imposed under section 6.37;
trust fund means the trust fund established by a local government under section 6.9.
[Section 6.1 amended: No. 55 of 2004 s. 688.]
Division 2 — Annual budget
6.2. Local government to prepare annual budget
(1) During the period from 1 June in a financial year to 31 August in the next financial year, or such extended time as the Minister allows, each local government is to prepare and adopt*, in the form and manner prescribed, a budget for its municipal fund for the financial year ending on the 30 June next following that 31 August.
(2) In the preparation of the annual budget the local government is to have regard to the contents of the plan for the future of the district made in accordance with section 5.56 and to prepare a detailed estimate for the current year of —
(a) the expenditure by the local government; and
(b) the revenue and income, independent of general rates, of the local government; and
(c) the amount required to make up the deficiency, if any, shown by comparing the estimated expenditure with the estimated revenue and income.
(3) For the purposes of subsections (2)(a) and (b) all expenditure, revenue and income of the local government is to be taken into account unless otherwise prescribed.
(4) The annual budget is to incorporate —
(a) particulars of the estimated expenditure proposed to be incurred by the local government; and
(b) detailed information relating to the rates and service charges which will apply to land within the district including —
(i) the amount it is estimated will be yielded by the general rate; and
(ii) the rate of interest (if any) to be charged by the local government on unpaid rates and service charges;
and
(c) the fees and charges proposed to be imposed by the local government; and
(d) the particulars of borrowings and other financial accommodation proposed to be entered into by the local government; and
(e) details of the amounts to be set aside in, or used from, reserve accounts and of the purpose for which they are to be set aside or used; and
(f) particulars of proposed land transactions and trading undertakings (as those terms are defined in and for the purpose of section 3.59) of the local government; and
(g) such other matters as are prescribed.
(5) Regulations may provide for —
(a) the form of the annual budget; and
(b) the contents of the annual budget; and
(c) the information to be contained in or to accompany the annual budget.
[Section 6.2 amended: No. 49 of 2004 s. 42(8) and 56.]
[Section 6.2 modified: SL 2020/57 1M.]
6.3. Budget for other circumstances
A local government is required to prepare and adopt* a budget in a form and manner similar to the annual budget with such modifications as are necessary to meet the case —
(a) where required to do so in consequence of the quashing of —
(i) a general valuation; or
(ii) a rate or service charge,
by a court or by the State Administrative Tribunal; or
(b) if, at any time after the imposition of rates in a financial year it intends to impose a supplementary general rate or specified area rate for the unexpired portion of the financial year.
[Section 6.3 amended: No. 55 of 2004 s. 689.]
Division 3 — Reporting on activities and finance
6.4. Financial report
(1) A local government is to prepare an annual financial report for the preceding financial year and such other financial reports as are prescribed.
(2) The financial report is to —
(a) be prepared and presented in the manner and form prescribed; and
(b) contain the prescribed information.
(3) By 30 September following each financial year or such extended time as the Minister allows, a local government is to submit to its auditor —
(a) the accounts of the local government, balanced up to the last day of the preceding financial year; and
(b) the annual financial report of the local government for the preceding financial year.
Division 4 — General financial provisions
6.5. Accounts and records
The CEO has a duty —
(a) to ensure that there are kept, in accordance with regulations, proper accounts and records of the transactions and affairs of the local government; and
(b) to keep the accounts and records up to date and ready for inspection at any time by persons authorised to do so under this Act or another written law.
6.6. Funds to be established
(1) A local government is to have —
(a) a municipal fund; and
(b) a trust fund.
(2) The municipal fund is to be kept separate and distinct from the trust fund.
6.7. Municipal fund
(1) All money and the value of all assets received or receivable by a local government are to be held and brought to account in its municipal fund unless required by this Act or any other written law to be held in the trust fund.
(2) Money held in the municipal fund may be applied towards the performance of the functions and the exercise of the powers conferred on the local government by this Act or any other written law.
6.8. Expenditure from municipal fund not included in annual budget
(1) A local government is not to incur expenditure from its municipal fund for an additional purpose except where the expenditure —
(a) is incurred in a financial year before the adoption of the annual budget by the local government; or
(b) is authorised in advance by resolution*; or
(c) is authorised in advance by the mayor or president in an emergency.
(1a) In subsection (1) —
additional purpose means a purpose for which no expenditure estimate is included in the local government’s annual budget.
(2) Where expenditure has been incurred by a local government —
(a) pursuant to subsection (1)(a), it is to be included in the annual budget for that financial year; and
(b) pursuant to subsection (1)(c), it is to be reported to the next ordinary meeting of the council.
[Section 6.8 amended: No. 1 of 1998 s. 19.]
6.9. Trust fund
(1) A local government is to hold in the trust fund all money or the value of assets —
(a) that are required by this Act or any other written law to be credited to that fund; and
(b) held by the local government in trust.
(2) Money or other property held in the trust fund is to be applied for the purposes of, and in accordance with, the trusts affecting it.
(3) Where money or other property is held in the trust fund, the local government is to —
(a) in the case of money, pay it to the person entitled to it together with, if the money has been invested, any interest earned from that investment;
(b) in the case of property, deliver it to the person entitled to it.
(4) Where money has been held in the trust fund for 10 years it may be transferred by the local government to the municipal fund but the local government is required to repay the money, together with any interest earned from its investment, from that fund to a person claiming and establishing a right to the repayment.
[Section 6.9 amended: No. 49 of 2004 s. 57.]
6.10. Financial management regulations
Regulations may provide for —
(a) the security and banking of money received by a local government; and
(b) the keeping of financial records by a local government; and
(c) the management by a local government of its assets, liabilities and revenue; and
(d) the general management of, and the authorisation of payments out of —
(i) the municipal fund; and
(ii) the trust fund,
of a local government.
6.11. Reserve accounts
(1) Subject to subsection (5), where a local government wishes to set aside money for use for a purpose in a future financial year, it is to establish and maintain a reserve account for each such purpose.
(2) Subject to subsection (3), before a local government —
(a) changes* the purpose of a reserve account; or
(b) uses* the money in a reserve account for another purpose,
it must give one month’s local public notice of the proposed change of purpose or proposed use.
(3) A local government is not required to give local public notice under subsection (2) —
(a) where the change of purpose or of proposed use of money has been disclosed in the annual budget of the local government for that financial year; or
(b) in such other circumstances as are prescribed.
(4) A change of purpose of, or use of money in, a reserve account is to be disclosed in the annual financial report for the year in which the change occurs.
(5) Regulations may prescribe the circumstances and the manner in which a local government may set aside money for use for a purpose in a future financial year without the requirement to establish and maintain a reserve account.
6.12. Power to defer, grant discounts, waive or write off debts
(1) Subject to subsection (2) and any other written law, a local government may —
(a) when adopting the annual budget, grant* a discount or other incentive for the early payment of any amount of money; or
(b) waive or grant concessions in relation to any amount of money; or
(c) write off any amount of money,
which is owed to the local government.
(2) Subsection (1)(a) and (b) do not apply to an amount of money owing in respect of rates and service charges.
(3) The grant of a concession under subsection (1)(b) may be subject to any conditions determined by the local government.
(4) Regulations may prescribe circumstances in which a local government is not to exercise a power under subsection (1) or regulate the exercise of that power.
[Section 6.12 amended: No. 64 of 1998 s. 39.]
6.13. Interest on money owing to local governments
(1) Subject to any other written law, a local government may resolve* to require a person to pay interest at the rate set in its annual budget on any amount of money (other than rates and service charges) which —
(a) that person owes to the local government; and
(b) has been owed for the period of time referred to in subsection (6).
(2) A resolution under subsection (1) is to be included in the annual budget.
(3) The rate of interest that may be set by the local government under this section is not to exceed the rate for the time being prescribed as the maximum rate of interest that may be set for the purposes of this section.
(4) Where a local government imposes interest under subsection (1) on any outstanding amount of money the local government is not to also impose an additional charge in relation to that amount.
(5) Accrued interest is, for the purpose of its recovery, taken to form part of the money owed to the local government on which it is charged.
(6) A local government is not to impose interest on any amount of money under subsection (1) until the money has been owed to the local government for the period of time set by the local government in its annual budget (not being less than 35 days) after the date which is stated on the relevant account for payment as being the date the account was issued.
(7) Regulations may provide for the method of calculation of interest.
[Section 6.13 modified: SL 2020/57 1M.]
6.14. Power to invest
(1) Money held in the municipal fund or the trust fund of a local government that is not, for the time being, required by the local government for any other purpose may be invested as trust funds may be invested under the Trustees Act 1962 Part III.
(2A) A local government is to comply with the regulations when investing money referred to in subsection (1).
(2) Regulations in relation to investments by local governments may —
(a) make provision in respect of the investment of money referred to in subsection (1); and
[(b) deleted]
(c) prescribe circumstances in which a local government is required to invest money held by it; and
(d) provide for the application of investment earnings; and
(e) generally provide for the management of those investments.
[Section 6.14 amended: No. 49 of 2004 s. 58; No. 17 of 2009 s. 36; No. 2 of 2012 s. 19.]
6.14A. Prohibitions on certain payments connected with legal matters
council member includes a former council member;
insurance policy includes any contract of insurance;
legal matter —
(a) means any of the following —
(i) a complaint, an investigation or proceedings under Part 8A;
(ii) proceedings before the State Administrative Tribunal or any other tribunal;
(iii) criminal proceedings, including an infringement notice under Part 9 or any similar type of notice under another written law;
(iv) a criminal investigation;
(v) any other type of statutory investigation or proceedings;
but
(b) does not include any of the following —
(i) an inquiry under Part 8;
(ii) civil proceedings before a court (but subject to subsection (4));
(iii) a prescribed investigation, proceedings or other matter;
liability includes the following —
(a) a cost or expense incurred for, or in respect of, legal advice, representation or other services;
(b) any other type of cost or expense;
(c) a fine or modified penalty in respect of an offence.
(2) Regulations may provide for prohibitions on a local government (directly or indirectly) —
(a) paying (wholly or partly) a liability incurred by a council member that arises from, or is otherwise connected with, a legal matter or potential legal matter; or
(b) paying (wholly or partly) a premium in respect of an insurance policy that would or might indemnify (wholly or partly) a council member against a liability of the kind referred to in paragraph (a); or
(c) providing, or procuring the provision of, legal advice, representation or other services to or for a council member in respect of a legal matter or potential legal matter.
(3) For the purposes of subsection (2)(a) and (b), references to paying a liability or premium include the following —
(a) reimbursing for the payment of the liability or premium;
(b) otherwise funding, or meeting the cost of, the payment of the liability or premium.
(4) Despite paragraph (b)(ii) of the definition of legal matter in subsection (1), regulations made for the purposes of subsection (2)(a) or (b) may apply in relation to a liability for exemplary or punitive damages that are awarded in civil proceedings before a court as if civil proceedings before a court were a legal matter.
(5) Regulations made for the purposes of subsection (2)(c) may provide (without limitation) that a local government is taken to provide, or to procure the provision of, legal advice, representation or other services if an employee of the local government does so with or without the local government’s authority.
(6) This section does not limit section 5.98(6).
A council member has certain protections from liability under section 9.56.
[Section 6.14A inserted: No. 47 of 2024 s. 75.]
Division 5 — Financing local government activities
Subdivision 1 — Introduction
6.15. Local government’s ability to receive revenue and income
(1) A local government may receive revenue or income —
(a) from —
(i) rates; or
(ii) service charges; or
(iii) fees and charges; or
(iv) borrowings; or
(v) investments; or
(vi) any other source,
authorised by or under this Act or another written law; or
(b) from —
(i) dealings in property; or
(ii) grants or gifts.
(2) Nothing in subsection (1)(a) authorises the making by a local government of a local law providing for the receipt of revenue or income by the local government from a source not contemplated by or under this Act.
Subdivision 2 — Fees and charges
6.16. Imposition of fees and charges
(1) A local government may impose* and recover a fee or charge for any goods or service it provides or proposes to provide, other than a service for which a service charge is imposed.
(2) A fee or charge may be imposed for the following —
(a) providing the use of, or allowing admission to, any property or facility wholly or partly owned, controlled, managed or maintained by the local government;
(b) supplying a service or carrying out work at the request of a person;
(c) subject to section 5.94, providing information from local government records;
(d) receiving an application for approval, granting an approval, making an inspection and issuing a licence, permit, authorisation or certificate;
(e) supplying goods;
(f) such other service as may be prescribed.
(3) Fees and charges are to be imposed when adopting the annual budget but may be —
(a) imposed* during a financial year; and
(b) amended* from time to time during a financial year.
6.17. Setting level of fees and charges
(1) In determining the amount of a fee or charge for a service or for goods a local government is required to take into consideration the following factors —
(a) the cost to the local government of providing the service or goods; and
(b) the importance of the service or goods to the community; and
(c) the price at which the service or goods could be provided by an alternative provider.
(2) A higher fee or charge or additional fee or charge may be imposed for an expedited service or supply of goods if it is requested that the service or goods be provided urgently.
(3) The basis for determining a fee or charge is not to be limited to the cost of providing the service or goods other than a service —
(a) under section 5.96; or
(b) under section 6.16(2)(d); or
(c) prescribed under section 6.16(2)(f), where the regulation prescribing the service also specifies that such a limit is to apply to the fee or charge for the service.
(4) Regulations may —
(a) prohibit the imposition of a fee or charge in prescribed circumstances; or
(b) limit the amount of a fee or charge in prescribed circumstances.
6.18. Effect of other written laws
(1) If the amount of a fee or charge for a service or for goods is determined under another written law a local government may not —
(a) determine an amount that is inconsistent with the amount determined under the other written law; or
(b) charge a fee or charge in addition to the amount determined by or under the other written law.
(2) A local government is not to impose a fee or charge for a service or goods under this Act if the imposition of a fee or charge for the service or goods is prohibited under another written law.
6.19. Local government to give notice of fees and charges
If a local government wishes to impose any fees or charges under this Subdivision after the annual budget has been adopted it must, before introducing the fees or charges, give local public notice of —
(a) its intention to do so; and
(b) the date from which it is proposed the fees or charges will be imposed.
Subdivision 3 — Borrowings
6.20. Power to borrow
(1) Subject to this Act, a local government may —
(a) borrow or re‑borrow money; or
(b) obtain credit; or
(c) arrange for financial accommodation to be extended to the local government in ways additional to or other than borrowing money or obtaining credit,
to enable the local government to perform the functions and exercise the powers conferred on it under this Act or any other written law.
(2) Where, in any financial year, a local government proposes to exercise a power under subsection (1) (power to borrow) and details of that proposal have not been included in the annual budget for that financial year —
(a) unless the proposal is of a prescribed kind, the local government must give one month’s local public notice of the proposal; and
(b) the resolution to exercise that power is to be by absolute majority.
(3) Where a local government has exercised a power to borrow and —
(a) it does not wish to proceed with the performance of the function or the exercise of the power for which the power to borrow was exercised; or
(b) after having completed the performance of the function or the exercise of the power for which the power to borrow was exercised, any part of the money borrowed, credit obtained or financial accommodation arranged has not been expended or utilized,
the local government may resolve* to expend the money or utilize the credit or financial accommodation for another purpose if one month’s local public notice is given of the proposed change of purpose.
(4) A local government is not required to give local public notice under subsection (3) —
(a) where the change of purpose has been disclosed in the annual budget of the local government for the relevant financial year; or
(b) in such other circumstances as are prescribed.
(5) A change of purpose referred to in subsection (3) is to be disclosed in the annual financial report for the year in which the change occurs.
6.21. Restrictions on borrowing
(1) Where, under section 6.20(1), a regional local government borrows money, obtains credit or arranges for financial accommodation to be extended to the regional local government that money, credit or financial accommodation is to be secured only —
(a) by the regional local government giving security over the financial contributions of the participants to the regional local government’s funds as set out or provided for in the establishment agreement for the regional local government; or
(b) by the regional local government giving security over Government grants which were not given to the regional local government for a specific purpose; or
(c) by a participant giving security over its general funds to the extent agreed by the participant.
(1a) Despite subsection (1)(a) and (c), security cannot be given over —
(a) the financial contributions of a particular participant to the regional local government’s funds; or
(b) the general funds of a particular participant,
if the participant is not a party to the activity or transaction for which the money is to be borrowed by, the credit is to be obtained for, or the financial accommodation is to be extended to, the regional local government.
(2) Where, under section 6.20(1), a local government borrows money, obtains credit or arranges for financial accommodation to be extended to the local government that money, credit or financial accommodation is only to be secured by giving security over the general funds of the local government.
(3) The Treasurer or a person authorised in that behalf by the Treasurer may give a direction in writing to a local government with respect to the exercise of its power under section 6.20(1) either generally or in relation to a particular proposed borrowing and the local government is to give effect to any such direction.
(4) In this section and in section 6.23 —
general funds means the revenue or income from —
(a) general rates; and
(b) Government grants which were not given to the local government for a specific purpose; and
(c) such other sources as are prescribed.
[Section 6.21 amended: No. 49 of 2004 s. 59.]
6.22. Appointment of receivers
(1) This section applies if a local government defaults in the payment of any principal money or interest secured by a security.
(2) On petition of the security holder the Supreme Court may appoint up to 3 receivers of the income of the local government.
(3) A receiver so appointed is an officer of the Supreme Court and is to act under the direction of the Court.
(4) A receiver is entitled to such remuneration as is fixed by the Supreme Court.
(5) The Supreme Court may remove a receiver and may appoint a receiver in the place of a receiver who has been removed or dies.
6.23. Powers of receivers
(1) A receiver is entitled to receive the general funds of the local government.
(2) For the purposes of subsection (1) a receiver has the powers which a local government has with respect to general rates under this Part.
(3) In relation to a regional local government a receiver is entitled to receive whichever of the following over which security has been given in a particular case —
(a) the financial contributions of the participants to the regional local government’s funds as set out or provided for in the establishment agreement for the regional local government;
(b) Government grants which were not given to the regional local government for a specific purpose;
(c) the general funds of a participant to the extent that those funds secure either money borrowed by, credit obtained for, or financial accommodation extended to, the regional local government.
(4) In relation to a regional subsidiary, a receiver is entitled to receive whichever of the following over which security has been given in a particular case —
(a) the financial contributions of the participants to the regional subsidiary’s funds as set out or provided for in the regional subsidiary’s charter;
(b) Government grants that were not given to the regional subsidiary for a specific purpose;
(c) the general funds of a participant to the extent that those funds secure financial accommodation extended to the regional subsidiary.
[Section 6.23 amended: No. 49 of 2004 s. 60; No. 26 of 2016 s. 17.]
6.24. Application of money
A receiver holds all the money received by the receiver after payment of costs and expenses and the receiver’s remuneration for the benefit of the security holders according to their respective priorities and the balance for the local government.
[Section 6.24 amended: No. 47 of 2024 s. 160.]
Division 6 — Rates and service charges
Subdivision 1 — Introduction and basis of rating
6.25. Terms used
In this Division and in Schedule 6.1, unless the context requires otherwise —
Government agreement has the same meaning as under the Government Agreements Act 1979;
gross rental value in relation to land has the same meaning as under the Valuation of Land Act 1978;
interim valuation has the same meaning as under the Valuation of Land Act 1978;
owner —
(a) in relation to land in a retirement village as defined in the Retirement Villages Act 1992 means —
(i) the owner, as defined in that Act section 3(1); or
(ii) a mortgagee in possession of the land; or
(iii) a trustee, executor, administrator, attorney or agent of a person mentioned in this paragraph who is in possession of the land;
(b) otherwise has the meaning given in section 1.4;
rate record means the rate record required to be kept under section 6.39;
unimproved value in relation to land has the same meaning as under the Valuation of Land Act 1978;
vacant land has the same meaning as under the Valuation of Land Act 1978.
[Section 6.25 amended: No. 17 of 2009 s. 37.]
6.26. Rateable land
(1) Except as provided in this section all land within a district is rateable land.
(2) The following land is not rateable land —
(a) land which is the property of the Crown and —
(i) is being used or held for a public purpose; or
(ii) is unoccupied, except —
(I) where any person is, under paragraph (e) of the definition of owner in section 1.4, the owner of the land other than by reason of that person being the holder of a prospecting licence held under the Mining Act 1978 in respect of land the area of which does not exceed 10 ha or a miscellaneous licence held under that Act; or
(II) where and to the extent and manner in which a person mentioned in paragraph (f) of the definition of owner in section 1.4 occupies or makes use of the land;
and
(b) land in the district of a local government while it is owned by the local government and is used for the purposes of that local government other than for purposes of a trading undertaking (as that term is defined in and for the purpose of section 3.59) of the local government; and
(c) land in a district while it is owned by a regional local government and is used for the purposes of that regional local government other than for the purposes of a trading undertaking (as that term is defined in and for the purpose of section 3.59) of the regional local government; and
(d) land used or held exclusively by a religious body as a place of public worship or in relation to that worship, a place of residence of a minister of religion, a convent, nunnery or monastery, or occupied exclusively by a religious brotherhood or sisterhood; and
(e) land used exclusively by a religious body as a school for the religious instruction of children; and
(f) land used exclusively as a non‑government school within the meaning of the School Education Act 1999; and
(g) land used exclusively for charitable purposes; and
(h) land vested in trustees for agricultural or horticultural show purposes; and
(i) land owned by Co‑operative Bulk Handling Limited or leased from the Crown or a statutory authority (within the meaning of that term in the Financial Management Act 2006) by that co-operative and used solely for the storage of grain where that co-operative has agreed in writing to make a contribution to the local government; and
(j) land which is exempt from rates under any other written law; and
(k) land which is declared by the Minister to be exempt from rates.
(3) If Co‑operative Bulk Handling Limited and the relevant local government cannot reach an agreement under subsection (2)(i) either that co-operative or the local government may refer the matter to the Minister for determination of the terms of the agreement and the decision of the Minister is final.
(4) The Minister may from time to time, under subsection (2)(k), declare that any land or part of any land is exempt from rates and by subsequent declaration cancel or vary the declaration.
(5) Notice of any declaration made under subsection (4) is to be published in the Gazette.
(6) Land does not cease to be used exclusively for a purpose mentioned in subsection (2) merely because it is used occasionally for another purpose which is of a charitable, benevolent, religious or public nature.
[Section 6.26 amended: No. 36 of 1999 s. 247; No. 77 of 2006 Sch. 1 cl. 102; No. 24 of 2009 s. 506 (correction to reprint: Gazette 7 Sep 2012 p. 4329).]
6.27. Multiple rating
Where —
(a) under the Mining Act 1978 or a Government agreement a person holds in respect of land a mining tenement within the meaning given to that term by that Act or agreement; or
(b) in accordance with the Mining Act 1978 a person holds, occupies, uses or enjoys in respect of land a mining tenement within the meaning given to that term by the Mining Act 1904 3; or
(c) under the Petroleum and Geothermal Energy Resources Act 1967 a person holds in respect of land a permit, drilling reservation, lease or licence,
the land the subject of that tenement, permit, drilling reservation, lease or licence is rateable land under this Act notwithstanding that the land may be rateable under this Act in the hands of the holder of another estate in that land.
[Section 6.27 amended: No. 35 of 2007 s. 99(3).]
6.28. Basis of rates
(1) The Minister is to —
(a) determine the method of valuation of land to be used by a local government as the basis for a rate; and
(b) publish a notice of the determination in the Government Gazette.
(2) In determining the method of valuation of land to be used by a local government the Minister is to have regard to the general principle that the basis for a rate on any land is to be —
(a) where the land is used predominantly for rural purposes, the unimproved value of the land; and
(b) where the land is used predominantly for non‑rural purposes, the gross rental value of the land.
(3) The unimproved value or gross rental value, as the case requires, of rateable land in the district of a local government is to be recorded in the rate record of that local government.
(4) Subject to subsection (5), for the purposes of this section the valuation to be used by a local government is to be the valuation in force under the Valuation of Land Act 1978 as at 1 July in each financial year.
(5) Where during a financial year —
(a) an interim valuation is made under the Valuation of Land Act 1978; or
(b) a valuation comes into force under the Valuation of Land Act 1978 as a result of the amendment of a valuation under that Act; or
(c) a new valuation is made under the Valuation of Land Act 1978 in the course of completing a general valuation that has previously come into force,
the interim valuation, amended valuation or new valuation, as the case requires, is to be used by a local government for the purposes of this section.
[Section 6.28 amended: No. 1 of 1998 s. 20.]
6.29. Valuation and rates on mining and petroleum interests
relevant interest means —
(a) a mining tenement held under the Mining Act 1978 (whether within the meaning given to that term by that Act or by the Mining Act 1904 3); or
(b) a permit, drilling reservation, lease or licence held under the Petroleum and Geothermal Energy Resources Act 1967.
(2) Regardless of any determination made under section 6.28(1), the basis for a rate on a relevant interest is to be the unimproved value of the land, except as provided for in subsection (3).
(3) Subsection (2) does not apply to a relevant interest in a portion of land on which capital improvements are located if —
(a) the Minister has determined under section 6.28(1) that the gross rental value of the land is to be used as the basis for a rate on that interest; and
(b) the determination expressly excludes the application of subsection (2).
(4) The Minister cannot determine under section 6.28(1) that the gross rental value of the land is to be used as the basis for a rate on a relevant interest in a portion of land if another estate in that portion of land is rateable on the basis of the gross rental value of the land.
(5) For the purpose of subsection (3)(b) a determination is to be taken to expressly exclude the application of subsection (2) if the determination —
(a) was made before the commencement of the Local Government Amendment Act 2009 section 38; and
(b) specifically applies to the particular relevant interest.
[Section 6.29 inserted: No. 17 of 2009 s. 38.]
6.30. Valuation of and rates on certain land
(1) Subject to subsection (2), the owner of any land —
(a) held or granted pursuant to a Government agreement, which agreement provides that for the purposes of imposing rates under this Act, the land is to be assessed on the unimproved value thereof; or
(b) held under a production licence for petroleum granted under the Petroleum Act 1967,
and to whom this section applies by virtue of the operation of section 533AA of the Local Government Act 1960 4 as in force before the commencement of this Act is to have the land valued for the purpose of imposing rates under this Act on the following basis —
(c) $1.00 per 4 000 m2 for each of the first 40 000 ha or part thereof;
(d) $0.75 per 4 000 m2 for each of the second 40 000 ha or part thereof;
(e) $0.50 per 4 000 m2 for each of the third and fourth 40 000 ha or part thereof;
(f) $0.25 for each 4 000 m2 in excess of 160 000 ha.
(2) This section does not apply to any part of the land upon which —
(a) there is erected a dwelling house; or
(b) there stand any improvements that are used in connection with a commercial undertaking other than that of the person for the time being entitled to the benefit of the agreement referred to in subsection (1)(a) or the production licence for petroleum referred to in paragraph (b) of that subsection.
[Section 6.30 amended: No. 19 of 2010 s. 51.]
6.31. Phasing in of certain valuations
Schedule 6.1 which deals with the phasing in of valuations has effect.
Subdivision 2 — Categories of rates and service charges
6.32. Rates and service charges
(1) When adopting the annual budget, a local government —
(a) in order to make up the budget deficiency, is to impose* a general rate on rateable land within its district, which rate may be imposed either —
(i) uniformly; or
(ii) differentially;
and
(b) may impose* on rateable land within its district —
(i) a specified area rate; or
(ii) a minimum payment;
and
(c) may impose* a service charge on land within its district.
(2) Where a local government resolves to impose a rate it is required to —
(a) set a rate which is expressed as a rate in the dollar of the gross rental value of rateable land within its district to be rated on gross rental value; and
(b) set a rate which is expressed as a rate in the dollar of the unimproved value of rateable land within its district to be rated on unimproved value.
(3) A local government —
(a) may, at any time after the imposition of rates in a financial year, in an emergency, impose* a supplementary general rate or specified area rate for the unexpired portion of the current financial year; and
(b) is to, after a court or the State Administrative Tribunal has quashed a general valuation, rate or service charge, impose* a new general rate, specified area rate or service charge.
(4) Where a court or the State Administrative Tribunal has quashed a general valuation the quashing does not render invalid a rate imposed on the basis of the quashed valuation in respect of any financial year prior to the financial year in which the proceedings which resulted in that quashing were commenced.
[Section 6.32 amended: No. 55 of 2004 s. 690.]
6.33. Differential general rates
(1) A local government may impose differential general rates according to any, or a combination, of the following characteristics —
(a) the purpose for which the land is zoned, whether or not under a planning scheme as defined in the Planning and Development Act 2005; or
(b) a purpose for which the land is held or used as determined by the local government; or
(c) whether or not the land is vacant land; or
(d) any other characteristic or combination of characteristics prescribed.
(a) specify the characteristics under subsection (1) which a local government is to use; or
(b) limit the characteristics under subsection (1) which a local government is permitted to use.
(3) In imposing a differential general rate a local government is not to, without the approval of the Minister, impose a differential general rate which is more than twice the lowest differential general rate imposed by it.
(4) If during a financial year, the characteristics of any land which form the basis for the imposition of a differential general rate have changed, the local government is not to, on account of that change, amend the assessment of rates payable on that land in respect of that financial year but this subsection does not apply in any case where section 6.40(1)(a) applies.
(5) A differential general rate that a local government purported to impose under this Act before the Local Government Amendment Act 2009 section 39(1)(a) came into operation is to be taken to have been as valid as if the amendment made by that paragraph had been made before the purported imposition of that rate.
[Section 6.33 amended: No. 38 of 2005 s. 15; No. 17 of 2009 s. 39; No. 28 of 2010 s. 34; No. 45 of 2020 s. 113.]
[Section 6.33 modified: SL 2020/57 1M.]
6.34. Limit on revenue or income from general rates
Unless the Minister otherwise approves, the amount shown in the annual budget as being the amount it is estimated will be yielded by the general rate is not to —
(a) be more than 110% of the amount of the budget deficiency; or
(b) be less than 90% of the amount of the budget deficiency.
[Section 6.34 modified: SL 2020/57 1M.]
6.35. Minimum payment
(1) Subject to this section, a local government may impose on any rateable land in its district a minimum payment which is greater than the general rate which would otherwise be payable on that land.
(2) A minimum payment is to be a general minimum but, subject to subsection (3), a lesser minimum may be imposed in respect of any portion of the district.
(3) In applying subsection (2) the local government is to ensure the general minimum is imposed on not less than —
(a) 50% of the total number of separately rated properties in the district; or
(b) 50% of the number of properties in each category referred to in subsection (6),
on which a minimum payment is imposed.
(4) A minimum payment is not to be imposed on more than the prescribed percentage of —
(a) the number of separately rated properties in the district; or
(b) the number of properties in each category referred to in subsection (6),
unless the general minimum does not exceed the prescribed amount.
(5) If a local government imposes a differential general rate on any land on the basis that the land is vacant land it may, with the approval of the Minister, impose a minimum payment in a manner that does not comply with subsections (2), (3) and (4) for that land.
(6) For the purposes of this section a minimum payment is to be applied separately, in accordance with the principles set forth in subsections (2), (3) and (4) in respect of each of the following categories —
(a) to land rated on gross rental value; and
(b) to land rated on unimproved value; and
(c) to each differential rating category where a differential general rate is imposed.
[Section 6.35 amended: No. 49 of 2004 s. 61.]
[Section 6.35 modified: SL 2020/57 1M.]
6.36. Local government to give notice of certain rates
(1) Before imposing any differential general rates or a minimum payment applying to a differential rate category under section 6.35(6)(c) a local government is to give local public notice of its intention to do so.
(2) A local government is required to ensure that a notice referred to in subsection (1) is published in sufficient time to allow compliance with the requirements specified in this section and section 6.2(1).
(3) A notice referred to in subsection (1) —
(a) may be published within the period of 2 months preceding the commencement of the financial year to which the proposed rates are to apply on the basis of the local government’s estimate of the budget deficiency; and
(b) is to contain —
(i) details of each rate or minimum payment the local government intends to impose; and
(ii) an invitation for submissions to be made by an elector or a ratepayer in respect of the proposed rate or minimum payment and any related matters within 21 days (or such longer period as is specified in the notice) of the notice; and
(iii) any further information in relation to the matters specified in subparagraphs (i) and (ii) which may be prescribed;
and
(c) is to advise electors and ratepayers that the document referred to in subsection (3A) —
(i) may be inspected at a time and place specified in the notice; and
(ii) is published on the local government’s official website.
(3A) The local government is required to prepare a document describing the objects of, and reasons for, each proposed rate and minimum payment and to publish the document on the local government’s official website.
(4) The local government is required to consider any submissions received before imposing the proposed rate or minimum payment with or without modification.
(5) Where a local government —
(a) in an emergency, proposes to impose a supplementary general rate or specified area rate under section 6.32(3)(a); or
(b) proposes to modify the proposed rates or minimum payments after considering any submissions under subsection (4),
it is not required to give local public notice of that proposed supplementary general rate, specified area rate, modified rate or minimum payment.
[Section 6.36 amended: No. 16 of 2019 s. 62.]
[Section 6.36 modified: SL 2020/57 1M.]
6.37. Specified area rates
(1) A local government may impose a specified area rate on rateable land within a portion of its district for the purpose of meeting the cost of the provision by it of a specific work, service or facility if the local government considers that the ratepayers or residents within that area —
(a) have benefited or will benefit from; or
(b) have access to or will have access to; or
(c) have contributed or will contribute to the need for,
that work, service or facility.
(2) A local government is required to —
(a) use the money from a specified area rate for the purpose for which the rate is imposed in the financial year in which the rate is imposed; or
(b) to place it in a reserve account established under section 6.11 for that purpose.
(3) Where money has been placed in a reserve account under subsection (2)(b), the local government is not to —
(a) change the purpose of the reserve account; or
(b) use the money in the reserve account for a purpose other than the service for which the specified area rate was imposed,
and section 6.11(2), (3) and (4) do not apply to such a reserve account.
(4) A local government may only use the money raised from a specified area rate —
(a) to meet the cost of providing the specific work, service or facility for which the rate was imposed; or
(b) to repay money borrowed for anything referred to in paragraph (a) and interest on that money.
(5) If a local government receives more money than it requires from a specified area rate on any land or if the money received from the rate is no longer required for the work, service or facility the local government —
(a) may, and if so requested by the owner of the land is required to, make a refund to that owner which is proportionate to the contributions received by the local government; or
(b) is required to allow a credit of an amount proportionate to the contribution received by the local government in relation to the land on which the rate was imposed against future liabilities for rates or service charges in respect of that land.
(6) Where —
(a) before the coming into operation of the Local Government Amendment Act 2012 Part 2 Division 5, a specified area rate was imposed, or purportedly imposed, under this section by a local government for the purpose of the provision of underground electricity; and
(b) the underground electricity was not, or will not, be provided, or not wholly provided, by the local government,
the rate is, and is taken always to have been, as validly imposed under this section as it would have been if, at the time of the imposition of the rate, the local government were to provide the underground electricity.
[Section 6.37 amended: No. 2 of 2012 s. 20.]
6.38. Service charges
(1) A local government may impose on —
(a) owners; or
(b) occupiers,
of land within the district or a defined part of the district a service charge for a financial year to meet the cost to the local government in the provision of a prescribed work, service or facility in relation to the land.
(2) A local government is required to —
(a) use the money from a service charge in the financial year in which the charge is imposed; or
(b) to place it in a reserve account established under section 6.11 for the purpose of that work, service or facility.
(3) Where money has been placed in a reserve account under subsection (2)(b), the local government is not to —
(a) change the purpose of the reserve account; or
(b) use the money in the reserve account for a purpose other than the work, service or facility for which the charge was imposed,
and subsections (2), (3) and (4) of section 6.11 do not apply to such a reserve account.
(4) A local government may only use the money raised from a service charge —
(a) to meet the cost of providing the specific service for which the work, service or facility charge was imposed; or
(b) to repay money borrowed for anything referred to in paragraph (a) and interest on that money.
(5) If a local government receives more money than it requires from the service charge imposed under subsection (1)(a) it —
(a) may, and if so requested by the owner of the land, is required to, make a refund to the owner of the land which is proportionate to the contributions received by the local government; or
(b) is required to allow a credit of an amount proportionate to the contribution received by the local government in relation to any land on which the service charge was imposed against future liabilities for rates or service charges in respect of that land.
(6) If a local government receives more money than it requires from the service charge imposed under subsection (1)(b) it is required to make a refund to the person who paid the service charge which is proportionate to the contributions received by the local government.
(7) This section applies in respect of a prescribed work, service or facility even if the work, service or facility is not provided, or not wholly provided, by a local government if the local government has facilitated or participated in the provision of the work, service or facility.
(8) Where —
(a) before the coming into operation of the Local Government Amendment Act 2012 Part 2 Division 5, a service charge was imposed, or purportedly imposed, under this section by a local government for the purpose of the provision of underground electricity; and
(b) the underground electricity was not, or will not, be provided, or not wholly provided, by the local government,
the charge is, and is taken always to have been, as validly imposed under this section as it would have been if, at the time of the imposition of the charge, the amendments effected by Local Government Amendment Act 2012 Part 2 Division 5 had been in effect and the provision of underground electricity had been a prescribed work.
[Section 6.38 amended: No. 2 of 2012 s. 21.]
Subdivision 3 — Imposition of rates and service charges
6.39. Rate record
(1) As soon as practicable after a local government has resolved to impose rates in a financial year it is to ensure that a record is compiled, at the time and in the form and manner prescribed, for that financial year of —
(a) all rateable land in its district; and
(b) all land in its district on which a service charge is imposed.
(2) A local government —
(a) is required, from time to time, to amend a rate record for the current financial year to ensure that the information contained in the record is current and correct and that the record is in accordance with this Act; and
(b) may amend the rate record for the 5 years preceding the current financial year.
6.40. Effect of amendment of rate record
(1) Where the rate record in relation to any land is amended under section 6.39(2) as a result of a change in —
(a) the rateable value of; or
(b) the rateability of; or
(c) the rate imposed on,
that land, the local government is to reassess the rates payable on the land and to give notice to the owner of the land of any change in the amount of rates payable on the land.
(2) Where the rate record in relation to any land is amended under section 6.39(2) as a result of a change in a service charge imposed on that land, the local government is to reassess that service charge and to give notice to the owner or occupier of the land, as the case requires, of any change in the amount of the service charge payable on the land.
(3) If, as a result of a reassessment of rates under subsection (1), a rate on any land is —
(a) reduced, and that rate has already been paid to a local government, the local government —
(i) may, and if so requested by the current owner of the land is required to, make a refund to that owner of the amount overpaid; or
(ii) is required to allow a credit of the amount overpaid in relation to the land against future liabilities for rates or service charges in respect of that land;
or
(b) increased, that increased rate is the rate to which section 6.44 applies.
(4) If, as a result of a reassessment of a service charge under subsection (2), a service charge on any land is —
(a) reduced, and that service charge has already been paid to a local government —
(i) by the owner, the local government —
(I) may, and if so requested by the current owner of the land is required to, make a refund to that owner of the amount overpaid; or
(II) is required to allow a credit of the amount overpaid in relation to the land against future liabilities for rates or service charges in respect of that land;
or
(ii) by the occupier, the local government is required to make a refund to the person who paid the service charge;
or
(b) increased, and that service charge was imposed on —
(i) the owner, that increased service charge is the service charge to which section 6.44 applies; or
(ii) the occupier, that increased service charge is a debt due to the local government by the person on whom the service charge was imposed.
6.41. Service of rate notice
(1) A local government is required to give to —
(a) the owner of rateable land; and
(b) the owner or occupier, as the case requires, of land on which a service charge is imposed,
a rate notice stating the date the rate notice was issued and incorporating or accompanied by the details and particulars prescribed.
(2) The rate notice is to be given —
(a) as soon as practicable after —
(i) the rate record of the land is completed; or
(ii) the rate record of the land is amended, if that amendment results in a change in the amount of rates or service charges payable on that land;
or
(b) where an election has been made under section 6.45 to pay rates or service charges by instalments, not less than 28 days before each instalment is due.
(3) Notwithstanding sections 75 and 76 of the Interpretation Act 1984 service of the rate notice is deemed to have been effected if delivered to the address shown in the rate record for the owner at the time of delivery.
(4) The rate notice may be given by email if the local government has obtained the consent of the owner or occupier, as the case requires, to giving the rate notice in that way.
[Section 6.41 amended: No. 16 of 2019 s. 63.]
Subdivision 4 — Payment of rates and service charges
6.42. Term used: service charge
In sections 6.43, 6.44 and 6.52(1) —
service charge does not include a service charge imposed under section 6.38(1)(b) on the occupier of land who is not the owner of that land.
6.43. Rates and service charges are a charge on land
Subject to the Rates and Charges (Rebates and Deferments) Act 1992, rates and service charges imposed under this Act, together with the costs of proceedings, if any, for the recovery of the rates or service charges, are a charge on the land rated or in relation to which the service charge is imposed.
6.44. Liability for rates or service charges
(1) The owner for the time being of land on which a rate or service charge has been imposed is liable to pay the rate or service charge to the local government.
(2) If there are 2 or more owners of the land they are jointly and severally liable to pay the rate or service charge, as the case requires.
6.45. Options for payment of rates or service charges
(1) A rate or service charge is ordinarily payable to a local government by a single payment but the person liable for the payment of a rate or service charge may elect to make that payment to a local government, subject to subsection (3), by —
(a) 4 equal or nearly equal instalments; or
(b) such other method of payment by instalments as is set forth in the local government’s annual budget.
(2) Where, during a financial year, a rate notice is given after a reassessment of rates under section 6.40 the person to whom the notice is given may pay the rate or service charge —
(a) by a single payment; or
(b) by such instalments as are remaining under subsection (1)(a) or (b) for the remainder of that financial year.
(3) A local government may impose an additional charge (including an amount by way of interest) where payment of a rate or service charge is made by instalments and that additional charge is, for the purpose of its recovery, taken to be a rate or service charge, as the case requires, that is due and payable.
(4) Regulations may —
(a) provide for the manner of making an election to pay by instalments under subsection (1) or (2); and
(b) prescribe circumstances in which payments may or may not be made by instalments; and
(c) prohibit or regulate any matters relating to payments by instalments; and
(d) provide for the time when, and manner in which, instalments are to be paid; and
(e) prescribe the maximum amount (including the maximum interest component) which may be imposed under subsection (3) by way of an additional charge; and
(f) provide for any other matter relating to the payment of rates or service charges.
[Section 6.45 modified: SL 2020/57 1M.]
6.46. Discounts
Subject to the Rates and Charges (Rebates and Deferments) Act 1992, a local government may, when imposing a rate or service charge, resolve* to grant a discount or other incentive for the early payment of any rate or service charge.
6.47. Concessions
Subject to the Rates and Charges (Rebates and Deferments) Act 1992, a local government may at the time of imposing a rate or service charge or at a later date resolve to waive* a rate or service charge or resolve to grant other concessions in relation to a rate or service charge.
6.48. Regulation of grant of discounts and concessions
Regulations may prescribe circumstances in which a local government is not to exercise a power under section 6.46 or 6.47 or regulate the exercise of the power.
6.49. Agreement as to payment of rates and service charges
A local government may accept payment of a rate or service charge due and payable by a person in accordance with an agreement made with the person.
6.50. Rates or service charges due and payable
(1) Subject to —
(a) subsections (2) and (3); and
(b) any concession granted under section 6.47; and
(c) the Rates and Charges (Rebates and Deferments) Act 1992,
a rate or service charge becomes due and payable on such date as is determined by the local government.
(2) The date determined by a local government under subsection (1) is not to be earlier than 35 days after the date noted on the rate notice as the date the rate notice was issued.
(3) Where a person elects to pay a rate or service charge by instalments the second and each subsequent instalment does not become due and payable at intervals of less than 2 months.
6.51. Accrual of interest on overdue rates or service charges
(1) A local government may at the time of imposing a rate or service charge resolve* to impose interest (at the rate set in its annual budget) on —
(a) a rate or service charge (or any instalment of a rate or service charge); and
(b) any costs of proceedings to recover any such charge,
that remains unpaid after becoming due and payable.
(2) The rate of interest that may be set by the local government under this section is not to exceed the rate for the time being prescribed as the maximum rate of interest that may be set for the purposes of this section.
(3) Accrued interest is, for the purpose of its recovery, taken to be a rate or service charge, as the case requires, that is due and payable.
(4) If a person is entitled under the Rates and Charges (Rebates and Deferments) Act 1992 or under this Act (if the local government in a particular case so resolves) to a rebate or deferment in respect of a rate or service charge —
(a) no interest is to accrue in respect of that rate or service charge payable by that person; and
(b) no additional charge is to be imposed under section 6.45(3) on that person.
(5) Regulations may provide for the method of calculation of interest.
[Section 6.51 amended: No. 1 of 1998 s. 21(1); No. 49 of 2004 s. 62.]
[Section 6.51 modified: SL 2020/57 1M.]
6.52. Rates and service charges may be apportioned
(1) Rates and service charges recoverable under this Act —
(a) are apportionable between successive owners in respect of time as if they accrued due from day to day during the period for which they were imposed; and
(b) are apportionable between owners of several portions of the land rated or in relation to which the service charge is imposed, as the case requires, according to the respective values of the portions.
(2) Where, in accordance with this Act, any portion of a rate or service charge (other than a service charge imposed on an occupier under section 6.38(1)(b)) in respect of any land has been paid by a person other than the owner of the land, whether during or after the period for which the rates were imposed, the owner is liable, if there is no agreement between them to the contrary, to reimburse that other person the amount so paid.
(3) This section does not affect the liability of a person to the local government.
(4) An unsatisfied judgment or order of a court for the recovery of rates or service charges from a person is not a bar to the recovery of them from another person liable under this Act to pay them.
6.53. Land becoming or ceasing to be rateable land
Where during a financial year —
(a) land that was not rateable becomes rateable land; or
(b) rateable land becomes land that is not liable to rates,
the owner of that land —
(c) is liable for rates proportionate to the portion of the year during which the land is rateable land; or
(d) is entitled to a refund of an amount proportionate to the portion of the year during which the land is not rateable land,
as the case requires.
Subdivision 5 — Recovery of unpaid rates and service charges
6.54. Term used: service charge
In sections 6.55, 6.60 and 6.62 —
service charge does not include a service charge imposed under section 6.38(1)(b) on the occupier of land who is not the owner of that land.
6.55. Recovery of rates and service charges
(1) Subject to subsection (2) and the Rates and Charges (Rebates and Deferments) Act 1992 rates and service charges on land are recoverable by a local government from —
(i) the owner at the time of the compilation of the rate record; or
(ii) a person who whilst the rates or service charges are unpaid becomes the owner of the land.
(2) A person who, by virtue of an Act relating to bankruptcy or insolvency or to the winding up of companies, has become the owner of land in the capacity of a trustee or liquidator, is not on that account personally liable to pay, out of the person’s own money, rates or service charges which are already due on, or become due on that land while that person is the owner in that capacity.
6.56. Rates or service charges recoverable in court
(1) If a rate or service charge remains unpaid after it becomes due and payable, the local government may recover it, as well as the costs of proceedings, if any, for that recovery, in a court of competent jurisdiction.
(2) Rates or service charges due by the same person to the local government may be included in one writ, summons, or other process.
[Section 6.56 amended: No. 84 of 2004 s. 80.]
6.57. Non‑compliance with procedure in Act not to prevent recovery of rate or service charge
In proceedings by or on behalf of a local government for the recovery of an amount due in respect of a rate or service charge, failure by the local government to comply in respect of the rate or service charge with the provisions of this Act, is not a defence, if it appears that it had the power to impose, and did in fact assent to the imposition of, the rate or service charge.
6.58. Defence in special cases
If a person sued or proceeded against proves that a notice required to be given under Subdivision 3 has not been given, the claim of the local government does not on that account fail, but such objections as would have been competent on an application under Subdivision 7 for a review may be raised as a defence to the whole or part of the claim, unless they have already been unsuccessfully raised by the person on an application under that Subdivision for a review.
[Section 6.58 amended: No. 55 of 2004 s. 691.]
6.59. Question of title to land not to affect jurisdiction
A jurisdiction otherwise competent to entertain proceedings to recover rates or service charges, or consequent on the recovery of rates or service charges, or to hear an application for review or an appeal relating to the payment of rates or service charges is not affected on the ground that a question of title to land is raised in the proceedings, but an order or judgment in the matter is not evidence of title.
[Section 6.59 amended: No. 55 of 2004 s. 692.]
6.60. Local government may require lessee to pay rent
lease includes an agreement whether made orally or in writing for the leasing or subleasing of land and includes a licence or arrangement for the use of land;
lessor and lessee mean the parties to a lease and their respective successors in title.
(2) If payment of a rate or service charge imposed in respect of any land is due and payable, notice may be given to the lessee of the land requiring the lessee to pay to the local government any rent as it falls due in satisfaction of the rate or service charge.
(3) The local government is to give to the lessor a copy of the notice with an endorsement that the original of it has been given to the lessee.
(4) The local government may recover the amount of the rate or service charge as a debt from the lessee if rent is not paid in accordance with the notice.
(5) Where an amount is paid under this section to the local government —
(a) the payment discharges the payer from any liability to any person to pay that amount as rent; and
(b) where as between a lessor and lessee the lessor is liable to pay the rate or service charge, the amount paid may be set off by the lessee against the rent payable to the lessor; and
(c) if the amount exceeds the rent due, or if there is no rent due, the amount may be set off by the lessee against accruing rent, or the balance recovered from the lessor in a court of competent jurisdiction.
(6) To the extent that an agreement purports to preclude a lessee from setting off or recovering payments made to a local government under this section, the agreement is of no effect.
6.61. Requirement to give name of person liable
(1) On the request of a local government —
(a) the occupier of property, or an agent of the owner of property, is required to disclose to the local government the name and address of the owner or of the person receiving or authorised to receive the rent of the property; and
(b) the person receiving or authorised to receive the rent of the property is required to disclose the name and address of the owner of the property.
(2) A person from whom information is requested in accordance with subsection (1) commits an offence if the person —
(a) fails to give the information requested; or
(b) gives information that is false or misleading in any material particular.
[Section 6.61 amended: No. 47 of 2024 s. 84.]
6.62. Application of money paid for rates and service charges
Where money is paid to a local government in respect of rates or service charges imposed on land, the local government is to apply the money for or towards —
(a) the rates or services charges due on the land in the order in which they become due; and
(b) any outstanding costs of proceedings for the recovery of any such rates or charges.
[Section 6.62 amended: No. 49 of 2004 s. 63.]
Subdivision 6 — Actions against land where rates or service charges unpaid
6.63. Term used: service charge
service charge does not include a service charge imposed under section 6.38(1)(b) on the occupier of land who is not the owner of that land.
6.64. Actions to be taken
(1) If any rates or service charges which are due to a local government in respect of any rateable land have been unpaid for at least 3 years the local government may, in accordance with the appropriate provisions of this Subdivision take possession of the land and hold the land as against a person having an estate or interest in the land and —
(a) from time to time lease the land; or
(b) sell the land; or
(c) cause the land to be transferred to the Crown; or
(d) cause the land to be transferred to itself.
(2) On taking possession of any land under this section, the local government is to give to the owner of the land such notification as is prescribed and then to affix on a conspicuous part of the land a notice, in the form or substantially in the form prescribed.
(3) Where payment of rates or service charges imposed in respect of any land is in arrears the local government has an interest in the land in respect of which it may lodge a caveat to preclude dealings in respect of the land, and may withdraw caveats so lodged by it.
6.65. Power to lease: procedure
Schedule 6.2 has effect in relation to the exercise of a power under section 6.64(1)(a) (in this Subdivision and that Schedule referred to as the power to lease).
6.66. Effect of lease
(1) Where a local government exercises the power to lease in relation to any land that land does not cease to be rateable land because of the exercise of that power.
(2) A lessee from a local government is entitled, during the term of the lease, to possession of the land as against persons who have an estate or interest in the land, but this subsection does not affect —
(a) the rights of the local government under the lease; or
(b) easements in favour of the public which affect the land; or
(c) the rights of the Crown in right of the State or Commonwealth or a department, agency, or instrumentality of the Crown in right of the State or Commonwealth.
(3) The exercise by a local government of a power to lease any land does not prejudice or affect the recovery of rates or taxes if any, due to the Crown in right of the State or Commonwealth, or a department or agency of the Crown in right of the State or Commonwealth.
6.67. Release of property after payment of arrears
(1) Where, within 12 years of the taking of possession of any land by a local government under section 6.64, an entitled person pays to the local government all rates and service charges due and payable in respect of the land, the local government is required to give up possession of that land to the person unless it has exercised a power under section 6.64(1)(b), (c) or (d) in relation to the land.
(2) If the local government has granted a lease of the land referred to in subsection (1) and the term of the lease has not expired, the lease subsists for the balance of the term as if it had been made between the lessee and the entitled person.
entitled person means the person who, if the local government had not taken possession of the land under section 6.64, would be entitled to possession of that land.
6.68. Exercise of power to sell land
(1) Subject to subsection (2), a local government is not to exercise its power under section 6.64(1)(b) (in this Subdivision and Schedule 6.3 referred to as the power of sale) in relation to any land unless, within the period of 3 years prior to the exercise of the power of sale, the local government has at least once attempted under section 6.56 to recover money due to it.
(2) A local government is not required to attempt under section 6.56 to recover money due to it before exercising the power of sale where the local government —
(a) has a reasonable belief that the cost of the proceedings under that section will equal or exceed the value of the land; or
(b) having made reasonable efforts to locate the owner of the property is unable to do so.
(3A) A local government is to ensure that a decision to exercise a power of sale without having, within the period of 3 years prior to the exercise of the power of sale, attempted under section 6.56 to recover the money due to it and the reasons for the decision are recorded in the minutes of the meeting at which the decision was made.
(3) Schedule 6.3 has effect in relation to the exercise of the power of sale.
[Section 6.68 amended: No. 17 of 2009 s. 40.]
6.69. Right to pay rates, service charges and costs, and stay proceedings
(1) Up to 7 days prior to the time of the actual sale of any land for non‑payment of rates or service charges a person having an estate or interest in the land may pay the rates or service charges and the costs and expenses incurred to that time in proceedings relating to the proposed sale.
(2) At any time after the 7 days referred to in subsection (1) but prior to the time of the actual sale of any land the local government may, upon such terms and conditions as are agreed between the parties, accept payment of the outstanding rates or service charges.
(3) On payment being made under subsection (1) or (2) the proceedings relating to the proposed sale are stayed and the local government is required to make such notifications and take such measures as are prescribed in relation to the payment and the cancellation of the proposed sale.
6.70. Effect of changes in boundaries of local government area
An alteration in —
(a) the boundaries of a district of a local government; or
(b) the constitution of the local government or its council; or
(c) its name or status,
does not preclude the local government from exercising in respect of any land on which rates or service charges were lawfully imposed by it under this Division, the powers conferred by this Subdivision.
6.71. Power to transfer land to Crown or to local government
(1) If under this Subdivision land is offered for sale but at the expiration of 12 months a contract for the sale of the land has not been entered into by the local government, it may by transfer, where the land is subject to the provisions of the Transfer of Land Act 1893, and by deed, where the land is not subject to the provisions of that Act, transfer or convey the estate in fee simple in the land to —
(a) the Crown in right of the State; or
(b) the local government.
(2) When a local government exercises the power referred to in subsection (1)(a) in relation to any land all encumbrances affecting the land are, by virtue of this section of no further force or effect against that land and the Registrar of Titles or the Registrar of Deeds and Transfers, as the case requires, is to give effect to this section.
(3) When exercising the power referred to in subsection (1)(b) the local government is required to pay the sum secured by, or payable under, a mortgage, lease, tenancy, encumbrance or charge in favour of the Crown in right of the State or a department, agency, or instrumentality of the Crown in right of the State.
(4) Schedule 6.3 has effect in relation to the exercise of the power referred to in subsection (1).
[Section 6.71 amended: No. 47 of 2011 s. 16.]
6.72. Title to land sold or transferred
Where a transfer or conveyance of an estate in fee simple in land is made in purported exercise of a power under section 6.64(1)(b), (c) or (d) the title transferred or conveyed is not impeachable on the ground that —
(a) no case had arisen to authorise the sale; or
(b) the proper procedures were not followed; or
(c) the power was otherwise improperly or irregularly exercised,
and a person who claims there has been an unauthorised or improper or irregular exercise of the power has a remedy in damages against the relevant local government but not against the Crown or the State with the Registrar as the nominal defendant under the Transfer of Land Act 1893.
[Section 6.72 amended: No. 81 of 1996 s. 153(1).]
6.73. Discharge of liability on sale of land
A sale of land by a local government or a transfer or conveyance of land to the Crown or a local government under this Subdivision discharges —
(a) the land; and
(b) the owners (present and past) of the land,
from any liability to the local government for rates, service charges or other money due to the local government which were, at the time of the sale, transfer or conveyance —
(c) secured by a charge over the land; or
(d) otherwise recoverable, whether under this Act or another written law, by the local government in respect of the land.
6.74. Power to have land revested in Crown if rates in arrears 3 years
(1) If land is —
(a) rateable land; and
(b) vacant land; and
(c) land in respect of which any rates or service charges have been unpaid for a period of at least 3 years,
the local government in whose district the land is situated may apply in the form and manner prescribed to the Minister to have the land revested in the Crown in right of the State.
(2) The Minister is to consider the application and the circumstances surrounding the application and may grant or refuse the application.
(3) If the application is granted the Minister is to execute a transfer or conveyance of the land to the Crown and is to deliver the transfer or conveyance to the Registrar of Titles or the Registrar of Deeds and Transfers, as the case requires, for registration.
(4) Upon the delivery of the transfer or conveyance Schedule 6.3 clause 8 has effect in relation to the exercise of the power referred to in subsection (1).
[Section 6.74 amended: No. 49 of 2004 s. 64(1); No. 47 of 2011 s. 16.]
6.75. Land to be vested in local government
(1) Where, at the expiration of 12 years from the taking of possession of any rateable land by a local government under section 6.64 —
(a) all rates and service charges due and payable in respect of the land have not been paid; and
(b) the land has not, under the provisions of this Subdivision, been —
(i) sold by the local government; or
(ii) transferred to the local government; or
(iii) transferred to the Crown,
by operation of this section the fee simple in the land is to be transferred to the local government subject to —
(c) easements in favour of the public which affect the land; and
(d) the rights of the Crown in right of the State or Commonwealth or a department, agency, or instrumentality of the Crown in right of the State or Commonwealth; and
(e) rates and taxes (other than local government rates and service charges) due on the land,
but free from other encumbrances.
(2) Schedule 6.3 has effect in relation to a transfer under this section.
Subdivision 7 — Objections and review
[Heading amended: No. 55 of 2004 s. 693.]
6.76. Grounds of objection
(1) A person may, in accordance with this section, object to the rate record of a local government on the ground —
(a) that there is an error in the rate record —
(i) with respect to the identity of the owner or occupier of any land; or
(ii) on the basis that the land or part of the land is not rateable land;
or
(b) if the local government imposes a differential general rate, that the characteristics of the land recorded in the rate record as the basis for imposing that rate should be deleted and other characteristics substituted.
(2) An objection under subsection (1) is to —
(a) be made to the local government in writing within 42 days of the service of a rate notice under section 6.41; and
(b) identify the relevant land; and
(c) set out fully and in detail the grounds of objection.
(3) An objection under subsection (1) may be made by the person named in the rate record as the owner of land or by the agent or attorney of that person.
(4) The local government may, on application by a person proposing to make an objection, extend the time for making the objection for such period as it thinks fit.
(5) The local government is to promptly consider any objection and may either disallow it or allow it, wholly or in part.
(6) After making a decision on the objection the local government is to promptly serve upon the person by whom the objection was made written notice of its decision on the objection and a statement of its reason for that decision.
6.77. Review of decision of local government on objection
Any person who is dissatisfied with the decision of a local government on an objection by that person under section 6.76 may, within 42 days (or such further period as the State Administrative Tribunal, for reasonable cause shown by the person, allows) after service of notice of the decision, apply to the State Administrative Tribunal for a review of the decision.
[Section 6.77 amended: No. 55 of 2004 s. 694.]
6.78. Review of decision to refuse to extend time for objection
A person who is dissatisfied with a decision of the local government to refuse to extend the time for making an objection against the rate record may apply to the State Administrative Tribunal for a review of the decision.
[Section 6.78 amended: No. 55 of 2004 s. 695.]
6.79. New matters raised on review
(1) Upon a review by the State Administrative Tribunal under section 6.77 or 6.78, the State Administrative Tribunal may consider —
(a) grounds in addition to those stated in the notice of objection; and
(b) reasons in addition to any reasons previously given for the local government’s decision that is under review.
(2) The State Administrative Tribunal is to ensure, by adjournment or otherwise, that each party and any other person entitled to be heard has a reasonable opportunity of properly considering and responding to any new ground or reason that the State Administrative Tribunal proposes to consider in accordance with subsection (1).
[Section 6.79 inserted: No. 55 of 2004 s. 696.]
6.79B. Written reasons for certain determinations to be given and published
If the State Administrative Tribunal considers that an order it makes determining a matter coming before it on a reference under section 6.77 or 6.78 is of general interest or significance, it is to prepare written reasons for its order and give a copy of the reasons to each party and publish the written reasons.
[Section 6.79B inserted: No. 55 of 2004 s. 696.]
6.80. Objections and reviews against valuations
There is not to be an objection or review in respect of a valuation of rateable land appearing in a rate record except in accordance with the Valuation of Land Act 1978.
[Section 6.80 amended: No. 55 of 2004 s. 697.]
6.81. Objection not to affect liability to pay rates or service charges
The making of an objection under this Subdivision does not affect the liability to pay any rate or service charge imposed under this Act pending determination of the objection.
[Section 6.81 amended: No. 55 of 2004 s. 698.]
6.82. General review of imposition of rate or service charge
(1) Where there is a question of general interest as to whether a rate or service charge was imposed in accordance with this Act, the local government or any person may refer the question to the State Administrative Tribunal to have it resolved.
(2) Subsection (1) does not enable a person to have a question relating to that person’s own individual case resolved under this section if it could be, or could have been, resolved under section 6.76.
(3) The State Administrative Tribunal dealing with a matter referred to it under this section may make an order quashing a rate or service charge which in its opinion has been improperly made or imposed.
[Section 6.82 amended: No. 55 of 2004 s. 699.]
Part 7 — Audit
This Part deals with the audit of local governments, including —
(a) the establishment of audit, risk and improvement committees; and
(b) the conduct of audits.
7.1. Terms used
audit has the meaning given in the Auditor General Act section 4(1);
audit, risk and improvement committee means an audit, risk and improvement committee established under section 7.1A, subject to section 7.1CB;
audit contract means an agreement in writing that —
(a) was made under section 7.8(1); and
(b) was in force immediately before commencement day;
Auditor General Act means the Auditor General Act 2006;
audit report means a report prepared by an auditor on a local government audit;
commencement day means the day on which the Local Government Amendment (Auditing) Act 2017 section 10 comes into operation;
financial audit means an audit conducted under section 7.12AB;
local government audit means —
(a) an audit conducted under this Part; or
(b) a performance audit;
performance audit means an examination or investigation carried out under the Auditor General Act section 18 (as applied by section 7.12AJ(1) of this Act);
regulations means regulations made for the purposes of this Part;
supplementary audit means an audit conducted under section 7.12AG.
[Section 7.1 amended: No. 10 of 2001 s. 124; No. 49 of 2004 s. 4; No. 5 of 2017 s. 10 and 22; No. 47 of 2024 s. 86.]
Division 1A — Audit, risk and improvement committee
[Heading inserted: No. 47 of 2024 s. 87.]
7.1A. Establishment of audit, risk and improvement committee
(1) A local government must establish a committee of its council under section 5.8 to be called the audit, risk and improvement committee.
(2) The following provisions apply in respect of the membership of the audit, risk and improvement committee —
(a) an employee of the local government is not to be a member;
(b) no member is to be nominated by, or is to be appointed to represent, any employee of the local government;
(c) section 5.10(1)(b) does not apply.
(3) The presiding member of the audit, risk and improvement committee cannot be a council member of the local government or of any other local government.
(4) Any deputy presiding member of the audit, risk and improvement committee cannot be a council member of the local government or of any other local government.
[Section 7.1A inserted: No. 47 of 2024 s. 87.]
7.1B. Deputy of presiding member or of deputy presiding member
(1) The local government must appoint a person under section 5.11A to be a deputy of the presiding member of the audit, risk and improvement committee.
(2) In addition to the requirement of section 5.11A(2)(c), the deputy of the presiding member cannot be a council member of any other local government.
(3) If section 5.14 applies to a meeting of the audit, risk and improvement committee, the committee members present at the meeting must choose the deputy of the presiding member, if present, to preside at the meeting.
(4) If the local government appoints a person under section 5.11A to be a deputy of the deputy presiding member of the audit, risk and improvement committee, in addition to the requirement of section 5.11A(2)(c), the appointed deputy cannot be a council member of any other local government.
[Section 7.1B inserted: No. 47 of 2024 s. 87.]
7.1C. Delegation to audit, risk and improvement committee
(1) The only powers and duties that the local government may delegate to the audit, risk and improvement committee under section 5.16 are as follows —
(a) any of its powers and duties under this Part;
(b) any prescribed power or duty.
(2) The provision that may be made by regulations for the purposes of subsection (1)(b) is not limited by the other subject matter of this Part.
(3) The local government’s power to delegate to the audit, risk and improvement committee is not limited by section 5.17.
[Section 7.1C inserted: No. 47 of 2024 s. 87.]
7.1CA. Decisions of audit, risk and improvement committee
Despite section 5.20, a decision of the audit, risk and improvement committee is to be made by a simple majority.
[Section 7.1CA inserted: No. 47 of 2024 s. 87.]
7.1CB. Two or more local governments may have shared audit, risk and improvement committee
(1) Two or more local governments may agree to establish a single committee to be the audit, risk and improvement committee of each of their councils (a shared committee).
(2) The following provisions apply to the establishment of a shared committee —
(a) each member, including the presiding member or any deputy presiding member, must be appointed by the local governments in accordance with their agreement;
(b) each local government must approve* each member’s appointment;
(c) each local government must approve* the appointment of the presiding member and of any deputy presiding member;
(d) there must be at least 3 members;
(e) no employee of any of the local governments is to be a member;
(f) no member is to be nominated by, or is to be appointed to represent, any employee of any of the local governments;
(g) neither the presiding member nor any deputy presiding member can be a council member of any of the local governments or of any other local government.
(3) In sections 5.98(1) and 5.99, references to a committee meeting include a meeting of a shared committee.
(4) Section 5.100 applies to a member of a shared committee, except a member who is a council member of any of the local governments.
(5) For the purposes of subsection (4), the local governments’ agreement must —
(a) provide for the payment of fees, and for the reimbursement of expenses, under section 5.100 to be split between the local governments in accordance with the agreement; and
(b) provide for any discretion of a local government under section 5.100 to be exercised by the local governments in accordance with the agreement.
(6) Regulations may make provision in relation to shared committees, including local governments’ agreements to establish them.
(7) Without limiting subsection (6), regulations made for the purposes of that subsection may do the following —
(a) provide for this Division, Part 5 Division 2 Subdivision 2 or any other provision of this Act that applies in relation to committees of a council to apply in relation to shared committees with or without modifications;
(b) make provision in relation to the matters that must be included in an agreement under subsection (5).
[Section 7.1CB inserted: No. 47 of 2024 s. 87.]
[Divisions 2 and 3 (s. 7.1D-7.12) deleted: No. 5 of 2017 s. 22.]
Division 3A — Financial audit
[7.12AA. Deleted: No. 5 of 2017 s. 22.]
7.12AB. Conducting a financial audit
The auditor must audit the accounts and annual financial report of a local government at least once in respect of each financial year.
[Section 7.12AB inserted: No. 5 of 2017 s. 18.]
7.12AC. Dispensing with a financial audit
(1) Despite section 7.12AB, the auditor may dispense with all or any part of a financial audit if the auditor considers that the dispensation is appropriate in the circumstances.
(2) The auditor must consult the Minister before exercising the power conferred by subsection (1).
(3) If the auditor exercises the power conferred by subsection (1), the auditor must notify —
(a) the Public Accounts Committee as defined in the Auditor General Act section 4(1); and
(b) the Estimates and Financial Operations Committee as defined in the Auditor General Act section 4(1).
[Section 7.12AC inserted: No. 5 of 2017 s. 18.]
7.12AD. Reporting on a financial audit
(1) The auditor must prepare and sign a report on a financial audit.
(2) The auditor must give the report to —
(a) the mayor, president or chairperson of the local government; and
(b) the CEO of the local government; and
(c) the Minister.
[Section 7.12AD inserted: No. 5 of 2017 s. 18.]
7.12AE. Fees for a financial audit
(1) The auditor must determine whether a fee is to be charged for a financial audit of a local government and if so, the amount of that fee.
(2) A fee determined under subsection (1) must be paid by the local government.
[Section 7.12AE inserted: No. 5 of 2017 s. 18.]
Division 3B — Supplementary audit
[7.12AF. Deleted: No. 5 of 2017 s. 22.]
7.12AG. Conducting a supplementary audit
The auditor may audit any particular aspect of the accounts of a local government that the Minister requests the auditor to audit.
[Section 7.12AG inserted: No. 5 of 2017 s. 18.]
7.12AH. Reporting on a supplementary audit
(1) The auditor must prepare and sign a report on a supplementary audit.
(2) The auditor must give the report to the Minister.
(3) The Minister —
(a) may give a copy of the report to the mayor, president or chairperson of the local government, and to the CEO of the local government; and
(b) may request the CEO of the local government to publish the report on the local government’s official website.
(4) The CEO must publish a copy of the report on the local government’s official website within 14 days after receiving a request under subsection (3)(b).
[Section 7.12AH inserted: No. 5 of 2017 s. 18.]
7.12AI. Fees for a supplementary audit
(1) The auditor must determine whether a fee is to be charged for a supplementary audit of a local government and if so, the amount of that fee.
(2) A fee determined under subsection (1) must be paid by the local government.
[Section 7.12AI inserted: No. 5 of 2017 s. 18.]
Division 3C — Performance audit
7.12AJ. Conducting a performance audit
(1) The Auditor General Act section 18 applies in relation to a local government as if —
(a) the local government were an agency; and
(b) money collected, received or held by any person for or on behalf of the local government were public money; and
(c) money collected, received or held by the local government for or on behalf of a person other than the local government were other money; and
(d) property held for or on behalf of the local government, other than money referred to in paragraph (b), were public property; and
(e) property held by the local government for or on behalf of a person other than the local government were other property; and
(f) the reference in the Auditor General Act section 18(2)(d) to “legislative provisions, public sector policies or its own internal policies;” were a reference to “legislative provisions or its own internal policies;”.
(2) A performance audit is taken for the purposes of the Auditor General Act to have been carried out under the Auditor General Act Part 3 Division 1.
[Section 7.12AJ inserted: No. 5 of 2017 s. 18.]
7.12AK. Reporting on a performance audit
(1) The Auditor General Act section 25 applies in relation to a performance audit as if —
(a) a local government were an agency; and
(b) the council of the local government were its accountable authority.
(2) The auditor must give a report on a performance audit to the local government.
[Section 7.12AK inserted: No. 5 of 2017 s. 18.]
Division 3D — Other audits
7.12AL. Audits of accounts of related entities and certain subsidiary bodies
The Auditor General Act sections 16 and 17 apply in relation to a local government as if —
(a) the local government were an agency; and
(b) the council of the local government were its accountable authority.
[Section 7.12AL inserted: No. 5 of 2017 s. 18.]
Division 4 — General
7.12A. Duties of local government with respect to audits
(1) A local government is to do everything in its power to —
(a) assist the auditor of the local government to conduct an audit and carry out the auditor’s other duties under this Act in respect of the local government; and
(b) ensure that audits are conducted successfully and expeditiously.
(2) Without limiting the generality of subsection (1), a local government is to meet with the auditor of the local government at least once in every year.
(3) A local government must —
(aa) examine an audit report received by the local government; and
(a) determine if any matters raised by the audit report, require action to be taken by the local government; and
(b) ensure that appropriate action is taken in respect of those matters.
(4) A local government must —
(a) prepare a report addressing any matters identified as significant by the auditor in the audit report, and stating what action the local government has taken or intends to take with respect to each of those matters; and
(b) give a copy of that report to the Minister within 3 months after the audit report is received by the local government.
(5) Within 14 days after a local government gives a report to the Minister under subsection (4)(b), the CEO must publish a copy of the report on the local government’s official website.
[Section 7.12A inserted: No. 49 of 2004 s. 8; amended: No. 5 of 2017 s. 19.]
7.13. Regulations as to audits
(1) Regulations may make provision as follows —
(aa) as to the functions of a CEO in relation to —
(i) a local government audit; and
(ii) a report (an action report) prepared by a local government under section 7.12A(4)(a); and
(iii) an audit report; and
(iv) a report on an audit conducted by a local government under this Act or any other written law;
(ab) as to the functions of an audit, risk and improvement committee, including in relation to —
[(i) deleted]
(ii) a local government audit; and
(iii) an action report; and
(iv) an audit report; and
(v) a report on an audit conducted by a local government under this Act or any other written law; and
(vi) any other matters;
[(ac) and (ad) deleted]
(ae) as to monitoring action taken in respect of any matters raised in an audit report;
[(a)‑(e) deleted]
(f) as to the matters to be addressed in an audit report;
[(g) and (h) deleted]
(i) requiring local governments to carry out, in the prescribed manner and in a form approved by the Inspector, an audit of compliance with such statutory requirements as are prescribed whether those requirements are —
(i) of a financial nature or not; or
(ii) under this Act or another written law.
(1A) The provision that may be made by regulations for the purposes of subsection (1)(ab) is not limited by the other subject matter of this Part.
[Section 7.13 amended: No. 64 of 1998 s. 40; No. 49 of 2004 s. 9; No. 55 of 2004 s. 700; No. 5 of 2017 s. 20 and 22; No. 47 of 2024 s. 90.]
Part 8 — Scrutiny of the affairs of local governments
This Part deals with —
(a) inquiring into the affairs and performance of local governments; and
(b) suspending and dismissing councils and members of councils; and
(c) making members or local government employees accountable for the misapplication of property.
Division 1 — Inquiry by Inspector
[Heading inserted: No. 47 of 2024 s. 91.]
8.1. Terms used
inquiry means an inquiry under section 8.2(1) or (2);
Inspector’s report means a report prepared under section 8.4.
[Section 8.1 inserted: No. 47 of 2024 s. 91.]
8.2. Inquiry by Inspector
(1) The Inspector may, on the Inspector’s own initiative, conduct an inquiry into a local government and its operations and affairs.
(2) The Minister may direct the Inspector to conduct an inquiry into a local government and its operations and affairs and, if so directed, the Inspector must conduct the inquiry accordingly.
(3) A direction under subsection (2) may be a direction to conduct a general inquiry or an inquiry into a specific matter.
(4) Even though the Inspector is directed by the Minister to conduct an inquiry into a specific matter, the Inspector may inquire into any other matter that comes to the Inspector’s attention during the inquiry if the Inspector considers it necessary or expedient to inquire into that matter.
(5) The Inspector must —
(a) advise the Minister and the local government concerned if and when an inquiry is commenced under subsection (1); and
(b) advise the local government concerned if the Inspector is directed by the Minister to conduct an inquiry under subsection (2).
(6) If the Electoral Commissioner is responsible for the conduct of an election (as defined in section 4.1) —
(a) the validity of the election cannot be the subject of an inquiry; and
(b) the Inspector must obtain the written agreement of the Electoral Commissioner before any other aspect of the election becomes the subject of an inquiry.
(7) Nothing in this section limits the authority of the Inspector, or another authorised officer, to exercise the powers conferred under Parts 8A and 8B to conduct an investigation into a local government and its operations and affairs, whether in response to a complaint or on the Inspector’s own initiative.
[Section 8.2 inserted: No. 47 of 2024 s. 91.]
8.3 Delegation by Inspector
(1) The Inspector may delegate the power to conduct and report on an inquiry to an inspectorate officer, another public service officer or an employee as defined in the Public Sector Management Act 1994 section 3(1).
(2) A delegation under subsection (1) may include a delegation of any power of the Inspector under Part 8B Division 6 for the purpose of conducting the inquiry or preparing the report on the outcome of the inquiry.
(3) The Inspector cannot delegate the power to conduct and report on an inquiry to a monitor.
(4) A delegation under subsection (1) must be in writing signed by the Inspector.
(5) A person to whom a power is delegated under subsection (1) cannot delegate that power.
(6) A person exercising or performing a power that has been delegated to the person under subsection (1) is taken to do so in accordance with the terms of the delegation unless the contrary is shown.
(7) This section does not limit the power of the Inspector to perform a function through an officer or agent.
[Section 8.3 inserted: No. 47 of 2024 s. 91.]
8.4. Report on inquiry
(1) The Inspector must —
(a) prepare a report on the outcome of an inquiry conducted by the Inspector; and
(b) give a copy of the report to the Minister.
(2) The Inspector’s report —
(a) must include —
(i) a summary of the powers that were exercised; and
(ii) the relevant findings of the inquiry;
and
(b) may include any recommendations that the Inspector considers appropriate.
(3) Without limiting subsection (2)(b), the Inspector may recommend —
(a) that a council be dismissed; or
(b) that a council that has been suspended be reinstated; or
(c) if subsection (4) applies — that a council member be dismissed; or
(d) that a council member who has been suspended be reinstated.
(4) The Inspector can recommend that a council member be dismissed only if the Inspector is satisfied on reasonable grounds that —
(a) at least 1 of the following applies —
(ii) the member’s conduct has impeded, or is impeding, the ability of another person to perform their role, functions or duties under this Act;
(iii) the member’s conduct has impeded, or is impeding, the ability of the local government to comply with the principles that apply to it under section 5.40;
and
(b) the seriousness or duration of that failure or conduct makes it inappropriate for the member to continue to be a member of the governing body of the local government.
[Section 8.4 inserted: No. 47 of 2024 s. 91.]
8.5. Copies of report to be given to local government and suspended council members
(1) Unless the Minister directs otherwise, the Inspector must give a copy of the Inspector’s report to —
(a) the local government concerned; and
(b) if the council of the local government is suspended — each council member; and
(c) if a council member is suspended — that member.
(2) Before giving the report as required under subsection (1), the Inspector may remove from the report anything that —
(a) could prejudice any legal action arising from the inquiry; or
(b) could prejudice any inquiry that the Minister may wish to institute under Division 2; or
(c) could be considered defamatory; or
(d) the Inspector considers ought, for any other reason, to be removed.
(3) Unless the Minister directs otherwise, the Inspector is not required to act under subsection (1) if —
(a) the report contains no findings adverse to the local government concerned, its council, a council member or any other person; or
(b) the Inspector is satisfied that it would not be in the public interest to act under that subsection.
[Section 8.5 inserted: No. 47 of 2024 s. 91.]
8.6. Advice from local government and council members
(1) Within 21 days after receiving an Inspector’s report that includes recommendations, or within a longer period allowed by the Minister, the local government must give the Minister and the Inspector written advice setting out —
(a) the things that the local government has done or proposes to do to give effect to the recommendations; and
(b) if the report recommends that the council be dismissed, its comments on that recommendation.
(2) A council member who is suspended or who is a member of a council that is suspended may, within 21 days after receiving an Inspector’s report or a longer period allowed by the Minister, give the Minister and the Inspector written advice setting out the member’s comments on the recommendations.
[Section 8.6 inserted: No. 47 of 2024 s. 91.]
8.7. Minister may take action to ensure recommendations are put into effect
(1) The Minister may, if the Minister thinks fit, order the local government, or any member of its council or any of its employees, to give effect to any 1 or more of the recommendations in the Inspector’s report in a manner and within a time specified in the order.
(2) The Minister must not make an order under subsection (1) until —
(a) the Minister has received advice in respect of the recommendations —
(i) under section 8.6(1); and
(ii) under section 8.6(2) if the report was provided to a council member;
or
(b) the time allowed by section 8.6(1) or (2) runs out, if no advice has been received by then.
(3) If an order by the Minister under subsection (1) is not complied with according to its terms, the Minister may, by order, suspend the council or the council member.
[Section 8.7 inserted: No. 47 of 2024 s. 91.]
8.8. Reinstatement of suspended council or council member on recommendation of Inspector
(1) Subsection (2) applies if —
(a) a council is suspended under section 8.15C while an inquiry is held that relates to the council; and
(b) the Inspector recommends in an Inspector’s report that the council be reinstated.
(2) The Minister must by order reinstate the council.
(3) Subsection (4) applies if —
(a) a council member is suspended under section 8.15E while an inquiry is held that relates to the council member; and
(b) the Inspector recommends in an Inspector’s report that the council member be reinstated.
(4) The Minister must by order reinstate the council member.
(5) Nothing in this section restricts the Minister from —
(a) reinstating a council by order under section 8.28(3); or
(b) reinstating a council member by order under section 8.30D.
Section 8.15H sets out other circumstances in which a suspended council member must be reinstated after an inquiry.
[Section 8.8 inserted: No. 47 of 2024 s. 91.]
8.9. Minister may recommend that council be dismissed
(1) This section applies if the Inspector recommends in an Inspector’s report that a council be dismissed.
(2) The Minister must decide whether to make a recommendation under subsection (4) in respect of the Inspector’s recommendation.
(3) The Minister must not make a decision under subsection (2) until —
(a) the Minister has received advice under section 8.6(1)(b) in respect of the recommendation or
(b) the time allowed by section 8.6(1) runs out, if no advice has been received by then.
(4) The Minister may recommend that the Governor dismiss the council, but the Minister does not have to make that recommendation.
(5) If the council has been suspended, the Minister may, by order under section 8.28(3), reinstate the council even if the Inspector has recommended its dismissal.
[Section 8.9 inserted: No. 47 of 2024 s. 91.]
8.10. Minister may recommend that council member be dismissed
(1) This section applies if the Inspector recommends in an Inspector’s report that a council member be dismissed.
(2) The Minister must decide whether to make a recommendation under subsection (4) in respect of the Inspector’s recommendation.
(3) The Minister must not make a decision under subsection (2) until —
(a) the Minister has received advice under section 8.6(2) in respect of the recommendation; or
(b) the time allowed by section 8.6(2) runs out, if no advice has been received by then.
(4) The Minister may recommend that the Governor dismiss the council member, but the Minister does not have to make that recommendation.
(5) If a council member has been suspended, the Minister may, by order under section 8.30D, reinstate the member even if the Inspector has recommended the member’s dismissal.
[Section 8.10 inserted: No. 47 of 2024 s. 91.]
8.11. Dismissal of council or council member by Governor
(1) The Governor may, by order made on the recommendation of the Minister under section 8.9(4), dismiss a council.
(2) The Governor may, by order made on the recommendation of the Minister under section 8.10(4), dismiss a council member.
[Section 8.11 inserted: No. 47 of 2024 s. 91.]
8.12. Referral to other authorities
The Inspector may refer any matter arising out of an inquiry to an authority of the State, the Commonwealth, another State or a Territory that has power under a law to investigate or take action in relation to a matter of that kind, and may pass to that authority any document or property that the Inspector has obtained in the course of the inquiry.
[Section 8.12 inserted: No. 47 of 2024 s. 91.]
8.13. Local government may have to meet inquiry costs
(1) The Minister may order a local government to pay to the State all or part of the costs of an inquiry if —
(a) an Inspector’s report contains findings adverse to the local government, or to its council or any member, or to any of its employees; or
(b) the inquiry was instituted at the request of the local government.
(2) The local government must comply with the order.
[Section 8.13 inserted: No. 47 of 2024 s. 91.]
[8.14-8.15A. Deleted: No. 47 of 2024 s. 91.]
Division 1A — Intervention by the Minister in certain circumstances
[Heading inserted: No. 31 of 2018 s. 13.]
Subdivision 1 — Council may be suspended or required to undertake remedial action
[Heading inserted: No. 31 of 2018 s. 13.]
8.15B. Notice that council may be peremptorily suspended or required to undertake remedial action
(1) Before the Minister makes an order under section 8.15C(2), the Minister is to give a notice (a show cause notice) in writing to the local government of the intention to do one or both of the following —
(a) suspend the council of the local government;
(b) require the council, or one or more of the members of the council, to undertake such remedial action as is specified in the notice.
(2) Within 21 days of receiving a show cause notice, or such longer period as the Minister allows, the local government is to give the Minister a written response to the notice.
[Section 8.15B inserted: No. 2 of 2012 s. 22.]
8.15C. Minister may order that council be peremptorily suspended or required to undertake remedial action
(1) This section applies if the Minister thinks that —
(a) the seriousness or duration of a suspected failure of the council of a local government to ensure that the local government performs its functions properly; or
(b) such other factors as the Minister considers relevant,
make it inappropriate for the council to act, or to continue to act, without intervention under this section, as the governing body of the local government.
(1A) Subsection (1) applies irrespective of whether an inquiry under Division 1 is proposed, is in progress or has happened.
(2) The Minister may —
(a) after receiving the local government’s response under section 8.15B(2); or
(b) after the time allowed by or under section 8.15B(2) runs out, if no response has been received by then,
by order, do one or more of the following —
(c) suspend the council;
(d) require the council, or one or more of the members of the council, to undertake such remedial action as is specified in the order within the time specified in the order.
(3) An order under this section suspending a council ceases to have effect when —
(a) an Independent Inquiry is appointed to conduct an inquiry and make a report about the local government; or
(b) the council is reinstated by the Minister under section 8.8(2) or 8.28(3); or
(c) the period of 6 months from when the order was made ends,
whichever happens soonest.
[Section 8.15C inserted: No. 2 of 2012 s. 22; amended: No. 31 of 2018 s. 14; No. 47 of 2024 s. 92.]
8.15CA. Suspension of council may be extended while inquiry conducted
(1) The Minister may, by order, extend the suspension of a council already suspended by an order (the original order) under section 8.15C(2)(c) if —
(a) an inquiry is being conducted under Division 1 in relation to the council; and
(b) the Inspector has advised the Minister that, in the Inspector’s opinion, the original order suspending the council will cease to have effect under section 8.15C(3)(c) before the inquiry is completed.
(2) For the purposes of this Act, the extended suspension of a council the subject of an order under subsection (1) is taken to have effect under the original order.
[Section 8.15CA inserted: No. 47 of 2024 s. 93.]
Subdivision 2 — Council member may be suspended or required to undertake remedial action
[Heading inserted: No. 31 of 2018 s. 15.]
8.15D. Terms used
disqualification offence means —
(a) a serious local government offence, as defined in section 2.22(3); or
(b) an offence against a law of this State, the Commonwealth, another State or a Territory, for which the indictable penalty, as defined in section 2.22(3), is —
(i) imprisonment for life; or
(ii) imprisonment for more than 5 years;
on which the order is based, in relation to —
(a) a factor — means a factor set out in section 8.15E(2) specified in an order in accordance with section 8.15E(4)(a); and
(b) a type of failure or conduct — means a type of failure or conduct set out in section 8.15E(3)(a) specified in an order in accordance with section 8.15E(4)(b);
reinstatement, of a member, means the reinstatement of the member under section 8.15H, 8.24(4B) or 8.30D.
[Section 8.15D inserted: No. 31 of 2018 s. 15.]
8.15E. Minister may suspend council member or require member to undertake remedial action
(1) If satisfied that it is appropriate to intervene under this section, the Minister may, by order, do either or both of the following —
(a) suspend a council member;
(b) require a council member to undertake any remedial action specified in the order within the time specified in the order.
(2) The Minister can only be satisfied that it is appropriate to intervene under this section if one or more of the following factors exist —
(a) the member has been charged with a disqualification offence;
(b) the Inspector has, under section 8A.14, made an allegation to the State Administrative Tribunal that the member has committed a recurrent breach;
(ba) the Inspector has, under section 8A.24, made an allegation to the State Administrative Tribunal that the member has committed a specified breach;
(c) the circumstances set out in subsection (3) have occurred.
(3) The circumstances referred to in subsection (2)(c) are that —
(a) the Inspector has advised the Minister in writing that the Inspector suspects on reasonable grounds that at least one of the following apply —
(ii) the member’s conduct has adversely affected, or is adversely affecting, the ability of another person to perform their role, functions or duties under this Act;
(iii) the member’s conduct has adversely affected, or is adversely affecting, the ability of the local government to comply with the principles that apply to it under section 5.40;
and
(b) the Minister is satisfied that the seriousness or duration of the suspected failure or conduct requires intervention under this section.
(4) An order made under subsection (1) must specify —
(a) each paragraph of subsection (2) that sets out a factor on which the order is based; and
(b) if subsection (2)(c) is a factor on which the order is based — each subparagraph of subsection (3)(a) that sets out a type of failure or conduct about which the Minister has received advice from the Inspector.
(5) Before making an order under subsection (1) the Minister must —
(a) give to the member written notice of the proposed order that provides a description of the facts of —
(i) each factor on which it is proposed that the order be based; and
(ii) if relevant, each type of failure or conduct on which it is proposed that the order be based;
and
(b) give the member the opportunity to show cause in writing, within 21 days of receiving the notice or such longer period as the Minister allows, as to why the Minister should not make the proposed order; and
[Section 8.15E inserted: No. 31 of 2018 s. 15; amended: No. 47 of 2024 s. 94.]
8.15F. Period of suspension: order under section 8.15E
(1) An order under section 8.15E(1) suspending a council member ceases to have effect on whichever of the following occurs first —
(a) the term of office of the member ends, or the member’s office becomes vacant;
(b) the member is reinstated by the Minister;
(c) if section 8.15E(2)(a) or (b) is a factor on which the order is based — the matter is resolved as described in subsection (2);
(d) if section 8.15E(2)(c) is the only factor on which the order is based — the period of suspension described in subsection (3) expires.
(2) A matter is resolved for the purposes of subsection (1)(c) when —
(a) if section 8.15E(2)(a) is a factor on which the order is based — one of the following has occurred in respect of each charge for a disqualification offence —
(i) the member is convicted of the offence and any appeal has been determined, or any period for appeal has expired;
(ii) the member is acquitted of the offence and any appeal has been determined, or any period for appeal has expired;
(iii) the prosecution for the offence is discontinued;
(b) if section 8.15E(2)(b) is a factor on which the order is based — one of the following has occurred in respect of each allegation to the State Administrative Tribunal that the member has committed a specified breach or a recurrent breach —
(i) the Tribunal makes an order imposing a sanction described in 8A.25(1)(b)(i) to (x) and any appeal has been determined, or any period for appeal has expired;
(ii) the Tribunal decides that the member did not commit the breach and any appeal has been determined, or any period for appeal has expired.
(3) The period of suspension for the purposes of subsection (1)(d) is —
(a) the period of not more than 6 months specified in the order, or if no period is specified in the order, the period of 6 months from when the order was made; and
(b) if the period of suspension has been extended by an order under section 8.15G(1) (an extension order), the additional period of not more than 6 months specified in the extension order, or if no period is specified in the extension order, the additional period of 6 months.
[Section 8.15F inserted: No. 31 of 2018 s. 15; amended: No. 47 of 2024 s. 95.]
8.15G. Suspension of certain council members may be extended while inquiry conducted
(1) The Minister may, by order, extend the suspension of a council member who is already suspended by an order (the original order) under section 8.15E(1) if section 8.15E(2)(c) is the only factor on which the order is based where —
(a) an inquiry is being conducted under Division 1 into any failure or conduct on which the original order was based; and
(b) the Inspector has advised the Minister that, in the Inspector’s opinion, the original order suspending the member will cease to have effect under section 8.15F(1)(d) and (3)(a) before the inquiry is completed; and
(c) the Minister is satisfied that each type of failure or conduct on which the original order was based still exists.
(2) For the purposes of this Act, the extended suspension of a member the subject of an order under subsection (1) is to be taken to have effect under the original order.
[Section 8.15G inserted: No. 31 of 2018 s. 15; amended: No. 47 of 2024 s. 96.]
8.15H. Reinstatement of council member whose suspension was extended under section 8.15G
The Minister must, by order, reinstate a council member the subject of an order under section 8.15G(1) if the Inspector advises the Minister in writing that, taking into account the recommendations in the report on the outcome of the inquiry, the Inspector considers that it is not appropriate —
(a) that the member be charged with a serious local government offence, as defined in section 2.22(3); or
(b) to make an allegation to the State Administrative Tribunal under section 8A.24(1) that the member has committed a specified breach.
[Section 8.15H inserted: No. 31 of 2018 s. 15; amended: No. 47 of 2024 s. 97.]
8.15I. Minister may suspend council member if member fails to undertake remedial action as ordered
(1) If the Minister is satisfied that an order by the Minister under section 8.15C(2)(d) or 8.15E(1)(b), requiring a member of a council to take remedial action, has not been complied with according to its terms, the Minister may, by order, suspend the member.
(2) Before making an order under subsection (1) the Minister must —
(a) give to the member written notice of the proposed order and provide information, and if available, evidence as to why the Minister is satisfied that the order has not been complied with; and
(b) give the member the opportunity to show cause in writing, within 21 days of receiving the notice or such longer period as the Minister allows, as to why the Minister should not make the proposed order; and
(3) If a member is already suspended, then an order may be made under subsection (1) extending the suspension of the member and, for the purpose of this Act, such an order is to be taken to be an order suspending the member made under this section.
[Section 8.15I inserted: No. 31 of 2018 s. 15.]
8.15J. Council member must inform CEO if charged with disqualification offence
(1) A member of a council of a local government who has been charged with a disqualification offence and does not advise the CEO of the local government in writing of the charge without delay commits an offence.
(2) If a CEO receives a notice under subsection (1), or becomes aware by other means that a council member has been charged with a disqualification offence, the CEO must, as soon as is practicable, give the Inspector written notice that the member has been so charged.
[Section 8.15J inserted: No. 31 of 2018 s. 15; amended: No. 47 of 2024 s. 98.]
Subdivision 3 — Council member may be dismissed
[Heading inserted: No. 31 of 2018 s. 15.]
8.15K. Minister may recommend that council member be dismissed
(1) If satisfied that it is appropriate to intervene under this section, the Minister may recommend that the Governor dismiss a council member.
(2) The Minister can only be satisfied that it is appropriate to intervene under this section if the Minister —
(a) is of the opinion, based on the advice in writing of the Inspector, that either or both of the following apply —
(i) the member is impeding the ability of the local government to perform its functions and duties under this Act;
(ii) it is in the best interests of the local government that the member be dismissed;
and
(b) is satisfied that the seriousness of the situation for the local government requires intervention under this section.
(3) Before making a recommendation under subsection (1) the Minister must —
(a) give to the member a report that contains —
(i) the proposed recommendation; and
(ii) the grounds on which the Minister proposes to make the recommendation;
and
(b) give the member the opportunity to show cause in writing, within 21 days of receiving the report or such longer period as the Minister allows, as to why the Minister should not make the proposed recommendation; and
(4) The power conferred on the Minister under subsection (1) is in addition to, and does not derogate from, these powers conferred on the Minister —
(a) the power under section 8.10(4) to take action in respect of an Inspector’s report under Division 1; or
(b) the power under section 8.24(4A) to take action in respect of an Independent Inquiry’s report under Division 2.
[Section 8.15K inserted: No. 31 of 2018 s. 15; amended: No. 47 of 2024 s. 99.]
8.15L. Governor may dismiss council member on recommendation of the Minister
The Governor may, by order made on the recommendation of the Minister under section 8.15K(1), dismiss a member of a council.
[Section 8.15L inserted: No. 31 of 2018 s. 15.]
8.15M. Report setting out grounds to be made available to the public
(1) On the day an order dismissing a council member under section 8.15L takes effect, the Minister is to make available to the public in any manner that the Minister thinks fit a report that contains the grounds on which the Minister made the recommendation to dismiss the member under section 8.15K(1).
(2) Despite subsection (1), the Minister may withhold the report, or any part of its contents, to the extent that the Minister considers that making it available might prejudice a matter that is likely to come before a court of law or to be the subject of an allegation to the State Administrative Tribunal.
[Section 8.15M inserted: No. 31 of 2018 s. 15.]
Division 2 — Inquiries by Independent Inquiry
[Heading amended: No. 47 of 2024 s. 100.]
8.16. Minister may institute inquiry
(1) The Minister may by written notice appoint an Independent Inquiry consisting of one person, or 3 people, suitably qualified to inquire into and report on any aspect of a local government or its operations or affairs.
(2) If an Independent Inquiry consists of 3 people —
(a) 1 must be a legal practitioner; and
(b) the Minister must specify which person presides at meetings of the Independent Inquiry.
(3) If an Independent Inquiry consists of 1 person, that person must be a legal practitioner.
[Section 8.16 amended: No. 64 of 1998 s. 44(1); No. 47 of 2024 s. 101.]
8.16A. Terms of appointment
(1) A member of an Independent Inquiry holds office for the duration of the inquiry unless —
(a) the member dies; or
(b) the member resigns by written notice to the Minister; or
(c) the member’s appointment is terminated by the Minister by written notice.
(2) If a member ceases to hold office, the Minister may appoint a replacement member.
[Section 8.16A inserted: No. 47 of 2024 s. 102.]
8.16B. Procedures and remuneration
(1) If an Independent Inquiry consists of 3 people, all 3 members are required to be present to constitute a quorum.
(2) The members of an Independent Inquiry are entitled to the remuneration and allowances determined from time to time by the Minister on the recommendation of the Public Sector Commissioner.
(3) Subsection (2) does not apply to a member who is a public service officer.
[Section 8.16B inserted: No. 47 of 2024 s. 102.]
8.17. Scope and duration of inquiry
The notice appointing an Independent Inquiry must set out —
(a) the nature of the inquiry to be conducted; and
(b) the functions of the Independent Inquiry; and
(c) any limit imposed on the duration of the inquiry.
[Section 8.17 amended: No. 47 of 2024 s. 103.]
8.18. Local government to be informed
The Minister is to give a copy of the notice appointing an Independent Inquiry to the local government concerned as soon as is practicable after the members of the Independent Inquiry have been notified of their appointments.
[Section 8.18 amended: No. 47 of 2024 s. 104.]
8.19. Suspension of council while inquiry is held
(1) Before or after appointing an Independent Inquiry to conduct an inquiry and make a report about a local government the Minister may, by order, suspend the council —
(a) if the Minister thinks that —
(i) the seriousness or duration of a suspected failure of the council to ensure that the local government performs its functions properly; or
(ii) such other factors as the Minister considers relevant,
make it inappropriate for the council to act, or to continue to act, as the governing body of the local government; or
(b) if the Minister thinks that the conduct of the inquiry would be likely to be seriously prejudiced if the council were to act, or to continue to act, as the governing body of the local government.
(2) If an Independent Inquiry has not been appointed when the suspension under an order made under this section takes place the Minister is to appoint one within 6 months after the suspension.
(3) If a council is already suspended under section 8.15C, then an order may be made under subsection (1) extending the suspension of the council and, for the purpose of this Act, such an order is to be taken to be an order suspending the council made under this section.
[Section 8.19 amended: No. 2 of 2012 s. 23; No. 47 of 2024 s. 105.]
8.19A. Suspension of council member while inquiry is held
(1) Before or after appointing an Independent Inquiry to conduct an inquiry and make a report about a local government, the Minister may, by order, suspend a member of the council of the local government if the Minister thinks that the conduct of the inquiry would be likely to be seriously prejudiced if the member were not suspended.
(2) If an Independent Inquiry has not been appointed when the suspension under an order made under this section takes place the Minister is to appoint one within 6 months after the suspension.
(3) Before making an order under subsection (1) the Minister must —
(a) give to the member written notice of the proposed order and the reasons why the Minister thinks that the conduct of the inquiry would be likely to be seriously prejudiced if the member were not suspended; and
(b) give the member the opportunity to show cause in writing, within 21 days of receiving the notice or such longer period as the Minister allows, as to why the Minister should not make the proposed order; and
(4) If a member is already suspended, then an order may be made under subsection (1) extending the suspension of the member and, for the purpose of this Act, such an order is to be taken to be an order suspending the member made under this section.
[Section 8.19A inserted: No. 31 of 2018 s. 16; amended: No. 47 of 2024 s. 106.]
8.20. Powers of Independent Inquiry
presiding member means the person who presides at meetings of the Independent Inquiry, or, if the Independent Inquiry consists of 1 person, that person.
(2) For the purposes of an inquiry and report under this Division —
(a) an Independent Inquiry has the powers of a Royal Commission; and
(b) the presiding member has the powers of the chairman of a Royal Commission.
(3) For the purposes of subsection (2), the provisions of the Royal Commissions Act 1968 have effect as if they were enacted in this Act with any necessary changes and in terms made applicable to the inquiry and report by the Independent Inquiry.
(4) Without limiting subsection (3), an Independent Inquiry is not limited by any other provision of this Act in respect of the exercise of its powers under the Royal Commissions Act 1968 and may exercise those powers in relation to the following:
(a) the Inspector;
(b) inspectorate officers;
(c) the Departmental CEO;
(d) officers and employees of the Department.
[Section 8.20 inserted: No. 47 of 2024 s. 107.]
8.21. Referral to other authorities
An Independent Inquiry may refer any matter arising out of an inquiry to an authority of the State, the Commonwealth, another State or a Territory that has power under a law to investigate or take action in relation to a matter of that kind, and may pass to that authority any document that it has obtained in the course of the inquiry.
[Section 8.21 amended: No. 64 of 1998 s. 46; No. 47 of 2024 s. 108.]
8.22. Report of Independent Inquiry
(1) An Independent Inquiry’s report is to contain any recommendations that the Independent Inquiry considers appropriate.
(2) Without limiting subsection (1) the Independent Inquiry may recommend —
(a) that a council be dismissed; or
(b) that a council that has been suspended be reinstated; or
(c) if subsection (2A) applies, that a council member be dismissed; or
(d) that a council member who has been suspended be reinstated.
(2A) The Independent Inquiry can only recommend that a council member be dismissed if the Independent Inquiry is satisfied, on reasonable grounds, that —
(a) at least one of the following apply —
(ii) the member’s conduct has impeded, or is impeding, the ability of another person to perform their role, functions or duties under this Act;
(iii) the member’s conduct has impeded, or is impeding, the ability of the local government to comply with the principles that apply to it under section 5.40;
and
(b) the seriousness or duration of that failure or conduct make it inappropriate for the member to continue to be a member of the governing body of the local government.
(3) The report is to be given to the Minister.
[Section 8.22 amended: No. 31 of 2018 s. 17; No. 47 of 2024 s. 109.]
8.23. Copies to be given to local government and suspended council members, and made available to public
(1) If the Minister receives a report from an Independent Inquiry under section 8.22(3), the Minister is to give a copy of the report to —
(a) the local government concerned; and
(b) if the council of the local government is suspended — each council member; and
(c) if a council member is suspended — that member.
(2) After subsection (1) has been complied with, the Minister is to make the report of an Independent Inquiry available to the public in any manner that the Minister thinks fit.
(3) Despite subsections (1) and (2), the Minister may withhold a report, or its contents, to the extent that the Independent Inquiry has indicated that it considers that making it available might prejudice a matter that is likely to come before a court of law or to be the subject of an allegation to the State Administrative Tribunal.
(4) Within 35 days after receiving the report or such longer period as the Minister allows, the local government is to give the Minister written advice setting out —
(a) the things that it has done or proposes to do to give effect to the recommendations in the report; or
(b) if the report recommends that the council be dismissed, its comments on that recommendation.
(5) A council member who is suspended, or who is a member of a council that is suspended, may, within 35 days after receiving the report or such longer period as the Minister allows, give the Minister written advice setting out the member’s comments on the recommendations in the report.
[Section 8.23 amended: No. 64 of 1998 s. 47; No. 31 of 2018 s. 18; No. 47 of 2024 s. 110.]
8.24. Minister to decide action on Independent Inquiry’s report
(1) The Minister is to decide what action (if any) to take under this section in respect of an Independent Inquiry’s report.
(2) If the Minister has given the local government concerned a copy of the report, the decision is to be made —
(a) after receiving advice under section 8.23(4) or (5); or
(b) after the time allowed by or under section 8.23(4) or (5) runs out, if no advice has been received by then.
(3) If, and only if, the Independent Inquiry has recommended that the council be dismissed, the Minister may recommend that the Governor dismiss the council, but the Minister does not have to so recommend.
(4) If the council has been suspended the Minister —
(a) must, by order, reinstate the council if the Independent Inquiry has not recommended its dismissal; and
(b) may, by order under section 8.28(3), reinstate the council even if the Independent Inquiry has recommended its dismissal.
(4A) If, and only if, the Independent Inquiry has recommended that a council member be dismissed, the Minister may recommend that the Governor dismiss the member, but the Minister does not have to so recommend.
(4B) If a council member has been suspended the Minister —
(a) must, by order, reinstate the member if the Independent Inquiry has not recommended the member’s dismissal; and
(b) may, by order under section 8.30D, reinstate the member even if the Independent Inquiry has recommended the member’s dismissal.
(4C) Subsection (4B)(a) does not apply in respect of a member the subject of an order under section 8.15G(1) unless there is also a duty to reinstate the member under section 8.15H.
(5) The Minister may order the local government, or any member of its council (if the council, or the member, is not suspended or dismissed) or any of its employees to give effect to any one or more of the recommendations of the Independent Inquiry in a manner and within a time ordered by the Minister.
[Section 8.24 amended: No. 31 of 2018 s. 19; No. 47 of 2024 s. 111.]
8.25. Dismissal of council or council member by Governor
(1) The Governor may, by order made on the recommendation of the Minister under section 8.24(3), dismiss a council.
(2) The Governor may, by order made on the recommendation of the Minister under section 8.24(4A), dismiss a member of a council.
[Section 8.25 amended: No. 31 of 2018 s. 20.]
8.26. Suspension of council if Minister’s order not complied with
If an order by the Minister under section 8.24(5) is not complied with according to its terms and the council has not already been suspended, the Minister may, by order, suspend the council.
8.27. Local government may have to meet inquiry costs
If —
(a) an Independent Inquiry makes findings adverse to a local government, or to its council or any member, or to any of its employees; or
(b) an inquiry by an Independent Inquiry was instituted at the request of a local government,
the Minister may order the local government to pay all or part of the costs of the inquiry and the local government is to comply with that order.
[Section 8.27 amended: No. 47 of 2024 s. 112.]
Division 3 — General provisions about suspension and dismissal of councils and council members
[Heading amended: No. 31 of 2018 s. 21.]
Subdivision 1 — Provisions about suspension of councils
[Heading amended: No. 31 of 2018 s. 22.]
8.28. Period of suspension: reinstatement of council
(1) An order suspending a council, other than an order made under section 8.15C(2), has effect for the period, not exceeding 2 years, specified in the order or, if no period is so specified, for the period of 2 years from when the order was made.
(2) An order suspending a council, other than an order made under section 8.15C(2), ceases to have effect when —
(a) the period of suspension expires; or
(b) the council is dismissed under Division 2; or
(c) the council is reinstated by the Minister under subsection (3) or section 8.24(4)(a),
whichever happens soonest.
(3) The Minister may by order, if the Minister thinks fit, reinstate a suspended council with effect from the time specified in the order.
[Section 8.28 amended: No. 2 of 2012 s. 24; No. 31 of 2018 s. 23.]
8.29. Effect of suspension of council
(1) While a council is suspended, the powers and duties of the council or of any member cannot be performed by the council or member.
(2) The suspension of a council does not prevent the term of office of any member from continuing to run while the council is suspended.
(3) Despite Part 4, Divisions 3 and 4, an office of member that becomes vacant while a council is suspended is not to be filled for a term that begins before the suspension ceases to have effect.
(4) An order reinstating a suspended council is to fix a day for any poll needed for an election to fill any offices of member that are vacant.
(5) Despite Part 5 Division 8 —
(a) while a council member is suspended that member is not entitled to be paid any fee or allowance to which they would otherwise be entitled to be paid under Part 5 Division 8; and
(b) if a local government pays an annual allowance or annual fee under Part 5 Division 8 to the member in advance then section 5.102AB applies in respect of that member as if the member had, during the period of suspension, ceased to hold the office to which the allowance or fee relates.
[Section 8.29 amended: No. 31 of 2018 s. 24.]
8.30. Appointment of commissioner while council is suspended
An order suspending a council is to include an order appointing a person as commissioner of the local government while the council is suspended and, if it is reinstated, until it holds its first meeting after being reinstated.
Subdivision 2 — Provisions about suspension of council members
[Heading inserted: No. 31 of 2018 s. 25.]
8.30A. Period of suspension for orders under sections 8.7, 8.15I and 8.19A
(1) An order under section 8.7(3), 8.15I(1) or 8.19A(1) suspending a council member has effect for the period, not exceeding 2 years, specified in the order or, if no period is so specified, for the period of 2 years from when the order was made.
(1A) An order under section 8.7(3) suspending a council member ceases to have effect on whichever of the following occurs first —
(a) the period of suspension expires;
(b) the term of office of the member ends, or the member’s office becomes vacant;
(c) the member is reinstated by the Minister by order under section 8.30D.
(2) An order under section 8.15I(1) or 8.19A(1) suspending a council member ceases to have effect on whichever of the following occurs first —
(a) the period of suspension expires;
(b) the term of office of the member ends, or the member’s office becomes vacant;
(c) the member is reinstated by the Minister by order under section 8.24(4B) or 8.30D.
[Section 8.30A inserted: No. 31 of 2018 s. 25; amended: No. 47 of 2024 s. 113.]
8.30B. Effect of suspension of council member
(1) While a council member is suspended, the powers and duties of the member cannot be performed by the member.
(2) The suspension of a council member does not prevent the term of office of the member from continuing to run while the member is suspended.
(3) Except as provided in section 2.25A, the suspension of a council member does not affect —
(a) the application of Part 4 Divisions 3 and 4, in relation to the member’s office; or
(b) the eligibility of the member to be a candidate to be elected as a member of a council, including to fill the office vacated by the member.
(4) Despite Part 5 Division 8 —
(a) while a council member is suspended that member is not entitled to be paid any fee or allowance to which they would otherwise be entitled to be paid under Part 5 Division 8; and
(b) if a local government pays an annual allowance or annual fee under Part 5 Division 8 to the member in advance then section 5.102AB applies in respect of that member as if the member had, during the period of suspension, ceased to hold the office to which the allowance or fee relates.
[Section 8.30B inserted: No. 31 of 2018 s. 25; amended: No. 47 of 2024 s. 114.]
8.30C. Continuing effect of suspension
(a) an order under section 8.7(3), Division 1A Subdivision 2 or section 8.19A(1) suspending a council member ceases to have effect under section 8.15F(1)(a) or 8.30A(2)(b) because —
(i) the term of office of the member ended under the Table to section 2.28; or
(ii) the member’s office became vacant under section 2.32(1)(b), (e) or (f), 2.36A(1) or 2.37(1) or (2);
and
(b) the suspended council member is elected as a member of a council, including to fill the office vacated by the suspended member.
(2) Despite anything else in this Act —
(a) an order described in subsection (1)(a) is taken to continue to have effect in respect of the suspended council member as if the term of office of the member had not ended or the office of the member had not become vacant; and
(b) for that purpose, the order is taken to extend to the member holding office as a member of a council, as described in subsection (1)(b).
[Section 8.30C inserted: No. 31 of 2018 s. 25; amended: No. 47 of 2024 s. 115.]
8.30D. Reinstatement of suspended council member
The Minister may by order, if the Minister thinks fit, reinstate a suspended council member with effect from the time specified in the order.
[Section 8.30D inserted: No. 31 of 2018 s. 25.]
Subdivision 3 — Provisions about dismissal of councils
[Heading inserted: No. 31 of 2018 s. 26]
8.31. No dismissal of council except on Minister’s recommendation
(1) A council cannot be dismissed otherwise than under section 8.11(1) or 8.25(1).
(2) Subsection (1) does not affect the operation of section 2.36A or 2.37.
[Section 8.31 amended: No. 64 of 1998 s. 4(5); No. 31 of 2018 s. 27; No. 47 of 2024 s. 116.]
8.32. When dismissal of council takes effect
An order dismissing a council has effect from the day specified in the order.
8.33. Appointment of commissioner on dismissal of council
An order dismissing a council is to include an order appointing a person as commissioner of the local government until a new council is elected and holds its first meeting.
8.34. Elections following dismissal of council
(1) An order dismissing a council is to fix a day for any poll needed for the election of a new council.
(2) The day fixed is to be a day that is as soon as practicable after the dismissal has effect and allows enough time for the electoral requirements to be complied with, but is not to be later than 2 years after the dismissal has effect.
[Section 8.34 amended: No. 1 of 1998 s. 22.]
Subdivision 4 — Provisions about dismissal of council members
[Heading inserted: No. 31 of 2018 s. 28]
8.34A. No dismissal of council member except on Minister’s recommendation
(1) A council member cannot be dismissed otherwise than under section 8.11(2), 8.15L or 8.25(2).
(2) Subsection (1) does not affect the operation of section 2.36A or 2.37.
[Section 8.34A inserted: No. 31 of 2018 s. 28; amended: No. 47 of 2024 s. 117.]
8.34B. When dismissal of council member takes effect
An order dismissing a council member has effect from the day specified in the order.
[Section 8.34B inserted: No. 31 of 2018 s. 28.]
Division 4 — Misapplication of funds and property
8.35. Interpretation
(1) For the purposes of this Division, funds of a local government are misapplied if any moneys paid from, or due to, any fund or account of the local government are misapplied to purposes not authorised by law.
(2) For the purposes of this Division, local government property is misapplied if anything that belongs to the local government is dealt with in a way that is not authorised by law and causes the local government to suffer loss.
(3) In this Division —
amount misapplied means —
(a) an amount of money misapplied as referred to in subsection (1); or
(b) the amount of a loss suffered as referred to in subsection (2);
authorised person means —
(a) the Inspector; or
[(b) deleted]
(c) any person authorised under section 8.36.
[Section 8.35 amended: No. 28 of 2006 s. 364; No. 47 of 2024 s. 118.]
8.36. Authorisation
(1) The Inspector may, by written authorisation, authorise a person to take actions under and subject to this Division.
(2) An authorisation under subsection (1) may confer a general power to take actions or a power to take actions in respect of a specific matter.
(3) The authorisation is to set out —
(a) the name of the authorised person; and
(b) any limit imposed on the duration of the authorisation.
[Section 8.36 amended: No. 28 of 2006 s. 364; No. 47 of 2024 s. 119.]
[8.37. Deleted: No. 47 of 2024 s. 120.]
8.38. Liability for misapplication of funds or property
(1) If —
(a) there has been a misapplication of funds of a local government or of local government property; and
(b) any council member or employee of the local government, has wilfully or through culpable negligence misapplied the funds or property or connived at or concurred in the misapplication,
that council member or employee is personally liable to pay the amount misapplied to the local government.
(2) If 2 or more people are liable to pay the amount misapplied, their liability is joint and several.
(3) A person’s liability to pay the amount misapplied continues whether or not the person is still a council member or employee of the local government.
8.39. Action to recover amounts misapplied
If a person is liable under section 8.38 to pay an amount misapplied, an authorised person may, subject to sections 8.40 and 8.41, recover that amount by action in a court of competent jurisdiction.
8.40. Notice to be given before action is taken
(1) Before taking action under section 8.39 to recover an amount misapplied, an authorised person is to give the person against whom the authorised person proposes to take that action notice that the person may, within 30 days after the notice is given, advance written reasons why that action should not be taken.
(2) A notice under subsection (1) is to —
(a) be in writing; and
(b) include details of the grounds upon which the authorised person proposes to take action; and
(c) state the amount in question.
[Section 8.40 amended: No. 47 of 2024 s. 160.]
8.41. Decision whether or not to proceed with action
(1) After considering any reasons advanced by a person to whom notice has been given under section 8.40(1) and all the circumstances of the case, the authorised person is to decide whether or not to proceed with the action.
(2) An authorised person other than the Inspector cannot decide to proceed with the action without the express approval of the Inspector.
(3) If the authorised person decides to proceed with the action, the authorised person must give written notice of the decision to the local government concerned.
(4) If the authorised person decides not to proceed with the action, the authorised person must give written notice of the decision to the local government concerned and to any person to whom notice has been given under section 8.40(1).
[Section 8.41 amended: No. 28 of 2006 s. 364; No. 47 of 2024 s. 121.]
8.42. Power of court to order payment
(1) If in any proceedings brought under this Division, the court before which the proceedings are brought is satisfied that the person against whom the proceedings have been brought is personally liable, under section 8.38, to pay an amount misapplied to a local government, that court may order that person to pay an amount of money stated in the order of the court and that order is enforceable in all respects as a final judgment of the court.
(2) If an authorised person recovers money in proceedings under this Division, the authorised person must pay it to the local government concerned.
[Section 8.42 amended: No. 47 of 2024 s. 122.]
8.43. Disqualification of person who has misapplied funds or property
(1) If an order has been made under section 8.42(1), the person against whom the order is made is disqualified from being a member of a council for a period of 5 years beginning on the date of the order, but the court making that order may, if it is satisfied that in the circumstances of the case it is appropriate to do so —
(a) order that the period of disqualification will be a period of less than 5 years that is specified in the order and begins on a date specified in the order; or
(b) order that the person is not disqualified.
(2) If at any time after a notice is given under section 8.40(1) but before a court makes an order under section 8.42(1), the person to whom the notice is given pays to the local government concerned or an authorised person part or all of the amount stated in the notice, the Inspector may apply to a court before which an action to recover the amount so paid has been or could have been brought for an order that the person be disqualified from being a member of a council.
(3) A court to which an application is made under subsection (2) may, if it is satisfied that in the circumstances of the case it is appropriate to do so, order that the person is disqualified from being a member of a council for a period (not exceeding 5 years) that is specified in the order and begins on a date specified in the order.
[Section 8.43 amended: No. 28 of 2006 s. 364; No. 47 of 2024 s. 123.]
8.44. Evidence of authorisation
In proceedings brought under this Division, a document purporting to be an authorisation or approval given by the Inspector to a person, is prima facie evidence of the authorisation or approval having been given, and of the signature of the Inspector.
[Section 8.44 amended: No. 28 of 2006 s. 364; No. 47 of 2024 s. 124.]
Part 8A — Breach complaints and general complaints
(a) types of breaches;
(b) making and dealing with complaints about breaches;
(c) dealing with breaches;
(d) making and dealing with general complaints.
Division 1 — Preliminary
8A.1. Terms used
breach complaint means a complaint —
(a) made to the Inspector under section 8A.5; or
(b) referred to the Inspector under section 5.105;
complainant, in relation to a breach complaint or general complaint, means the person who made the complaint;
dealt with by infringement notice, in relation to a breach complaint or general complaint, means that —
(a) an infringement notice has been issued under this Act or another written law in relation to the matter the subject of the complaint; and
(b) the matter has been dealt with by the payment of an amount in accordance with the infringement notice;
general complaint means a complaint made to the Inspector under section 8A.28(2);
respondent, in relation to a breach complaint or general complaint, means the person who is the subject of the complaint;
rule of conduct has the meaning given in section 5.102A.
[Section 8A.1 inserted: No. 47 of 2024 s. 125.]
Division 2 — Types and occurrences of breaches
8A.2. Behavioural breaches
adopted code of conduct, of a local government, means the code of conduct adopted by the local government under section 5.104.
(2) A council member commits a behavioural breach if the member breaches a requirement referred to in section 5.103(2)(b) or 5.104(3) that is included in the local government’s adopted code of conduct.
(3) Subsection (2) extends to a breach that occurred when the council member was a candidate for election as a council member.
[Section 8A.2 inserted: No. 47 of 2024 s. 125.]
8A.3. Conduct breaches and recurrent breaches
(1) A council member commits a conduct breach if the member —
(a) contravenes a rule of conduct; or
(b) contravenes a local law made under this Act, contravention of which the regulations specify to be a conduct breach.
(2) Subsection (1) extends to the contravention of a rule of conduct that occurred when the council member was a candidate for election as a council member.
(3) Regulations cannot specify that contravention of a local law under this Act is a conduct breach if contravention of the local law would, in addition to being a conduct breach under subsection (1), also be a specified breach under section 8A.4.
(4) A conduct breach is a recurrent breach if it occurs after the council member has been found under this Part to have committed 2 or more other conduct breaches.
[Section 8A.3 inserted: No. 47 of 2024 s. 125.]
8A.4. Specified breaches
(1) A council member who commits a specified offence commits a specified breach.
(2) For the purposes of subsection (1), a specified offence is —
(a) an offence under a provision specified in Schedule 8A.1; or
(b) an offence under a written law, other than a local law made under this Act, that is prescribed by the regulations to be a specified offence.
(3) An offence cannot be prescribed under subsection (2)(b) unless it is an element of the offence that the offender is a council member or is a person of a description that specifically includes a council member.
(4) Subsection (1) extends to the commission of a specified offence that occurred when the council member was a candidate for election as a council member.
[Section 8A.4 inserted: No. 47 of 2024 s. 125.]
Division 3 — Making breach complaint and preliminary matters
8A.5. Breach complaints
(1) A person may make a complaint to the Inspector in accordance with subsection (2) if the person has reason to believe that a person who is a council member at the time the complaint is made has committed a behavioural breach, a conduct breach or a specified breach.
(2) A complaint must —
(a) be made in the manner and form approved by the Inspector; and
(b) give details of the following —
(i) the complainant;
(ii) the council member who is the subject of the complaint;
(iii) the alleged breach;
and
(c) include any other information required by the regulations.
(3) A breach complaint may be dealt with under this Part even if the council member resigns, is disqualified, is not re‑elected or otherwise ceases to hold office as a council member after the complaint is made.
[Section 8A.5 inserted: No. 47 of 2024 s. 125.]
8A.6. Acknowledgment of breach complaint
The Inspector must, within 14 days after the day on which the Inspector receives a breach complaint, give the complainant an acknowledgment in writing that the complaint has been received.
[Section 8A.6 inserted: No. 47 of 2024 s. 125.]
8A.7. Preliminary assessment of breach complaint
(1) The Inspector may conduct a preliminary assessment of a breach complaint for the purpose of deciding the following —
(a) the type of breach alleged;
(b) whether to accept the breach complaint.
(2) For the purpose of a preliminary assessment the Inspector may make such inquiries and examine such matters as the Inspector considers necessary.
(3) Without limiting subsection (2), the Inspector may by written notice request any person to —
(a) attend before the Inspector for the purpose of discussing the subject matter of the breach complaint; or
(b) give the Inspector any information or document specified in the notice.
(4) If the complaint is accepted, the Inspector must —
(a) notify the complainant of the type of breach alleged; and
(b) notify the respondent of the complaint and the type of breach alleged.
Section 8A.37(2) sets out circumstances in which the requirements to notify under this subsection do not apply.
[Section 8A.7 inserted: No. 47 of 2024 s. 125.]
8A.8. Inspector may decline to accept, or to continue to deal with, breach complaint
(1) The Inspector may decline to accept a breach complaint (the complaint) if the Inspector is satisfied —
(a) that the complaint is frivolous, trivial, vexatious, misconceived or without substance; or
(b) that there is insufficient evidence available to deal with the complaint; or
(c) that the matter the subject of the complaint has been the subject of a previous breach complaint (whether by the current complainant or anyone else) and that it is not appropriate to allow the further breach complaint to be made; or
(d) that the complainant has not complied with a request under section 8A.7(3).
(2) The Inspector may, at any time before a breach complaint is referred under section 8A.11 or 8A.13, or dealt with under section 8A.14(1)(b) or 8A.23(2), decline to continue dealing with the breach complaint if the Inspector is satisfied that the complainant —
(a) has not complied with a requirement to provide information to the Inspector under section 8B.43; or
(b) has not complied with a direction under section 8B.45; or
(c) has not otherwise cooperated with the Inspector in relation to the complaint.
(3) If the Inspector declines to accept a breach complaint under subsection (1), the Inspector must notify the complainant of the decision to decline and of the reason for the decision.
(4) If the Inspector declines to continue dealing with a breach complaint under subsection (2), the Inspector must notify the complainant and the respondent of the decision to decline and of the reason for the decision.
(5) A decision of the Inspector under this section to decline to accept a breach complaint, or to decline to continue dealing with a breach complaint, is not reviewable by the State Administrative Tribunal.
Section 8A.10 provides that the Inspector may defer consideration of a complaint if the Inspector appoints a monitor to report to the Inspector on the matter the subject of the complaint or matters that include the subject of the complaint.
[Section 8A.8 inserted: No. 47 of 2024 s. 125.]
8A.9. Inspector must decline to accept certain breach complaints
(1) The Inspector must decline to accept a complaint the Inspector decides alleges a conduct breach if the Inspector is satisfied that the conduct the subject of the complaint occurred more than 12 months before the Inspector received the complaint.
(2) Subsection (3) applies to a breach complaint alleging an offence if there is a limit on the time within which proceedings may be commenced for the offence.
(3) The Inspector must decline to accept the complaint if the Inspector is satisfied that the Inspector received the complaint after the time referred to in subsection (2) had expired.
(4) The Inspector must decline to accept a complaint the Inspector decides alleges a conduct breach or a specified breach if the Inspector is satisfied that —
(a) the respondent is being or has been prosecuted for the offence to which the alleged breach relates; or
(b) the offence to which the alleged breach relates has been dealt with by infringement notice.
(5) The Inspector must decline to accept a complaint the Inspector decides alleges a behavioural breach or a conduct breach by a commissioner.
(6) If the Inspector declines to deal with a complaint under this section, the Inspector must notify the complainant of the decision to decline and of the reason for the decision.
[Section 8A.9 inserted: No. 47 of 2024 s. 125.]
8A.10. Inspector may defer dealing with complaint until report from monitor received
(1) This section applies in relation to a breach complaint if —
(a) a request has been made under section 8B.38 to appoint a monitor to deal with matters that are relevant to the complaint and the Inspector has not made a decision on the request; or
(b) a monitor is appointed under section 8B.37 to assist a local government to deal with matters that are relevant to the complaint.
(2) The Inspector may defer accepting the complaint, or, if the complaint is accepted, further dealing with the complaint, until —
(a) the Inspector decides not to appoint a monitor; or
(b) the appointed monitor reports to the Inspector on the outcome of the monitoring assignment.
(3) Nothing in subsection (2) limits or restricts the Inspector from dealing with the complaint, or a further complaint on the matter the subject of the complaint, or from exercising other powers under this Act in relation to the matter.
[Section 8A.10 inserted: No. 47 of 2024 s. 125.]
8A.11. Inspector may refer certain complaints to local government
(1) The Inspector may refer a complaint the Inspector decides alleges a conduct breach or a specified breach to the local government concerned if the Inspector is satisfied that it is more appropriate for the local government to deal with the complaint than for the complaint to be dealt with under this Part.
(2) The Inspector cannot refer a complaint under subsection (1) if —
(a) the complaint has been referred under section 8A.11 or 8A.13; or
(b) the complaint has been dealt with under section 8A.14(1)(b) or 8A.23(2); or
(c) the Inspector is satisfied that —
(i) the respondent is being or has been prosecuted for an offence in respect of the matter the subject of the complaint; or
(ii) the matter the subject of the complaint has been dealt with by infringement notice;
or
(d) the Inspector could not accept the complaint because of section 8A.9.
(3) If the Inspector refers a complaint under subsection (1) —
(a) this Part ceases to apply to the complaint; and
(b) the Inspector must notify the complainant and the respondent of the referral and of the reason for the decision.
Section 8A.37(2) sets out circumstances in which the requirement to notify under paragraph (b) does not apply.
Section 8A.12 provides for the referral of a complaint alleging a behavioural breach.
The Inspector may refer a matter to a public officer or body under section 8B.58.
[Section 8A.11 inserted: No. 47 of 2024 s. 125.]
Division 4 — Dealing with behavioural breach
8A.12. Regulations about complaint alleging behavioural breach
(1) If the Inspector decides that a breach complaint made to the Inspector or referred to the Inspector under section 5.105 alleges a behavioural breach, the Inspector must deal with the complaint in accordance with the regulations.
(2) Regulations for the purpose of subsection (1) may —
(a) require the Inspector to —
(i) refer the complaint to the local government concerned to be dealt with under the local government’s code of conduct; or
(ii) refer the complaint to be dealt with under Division 5 as if it were a breach complaint alleging a conduct breach;
and
(b) regulate the procedure for determining how and to whom the complaint is to be referred; and
(c) provide for limitations or other requirements as to how a referred complaint must be dealt with and the findings and orders that can be made; and
(d) provide for any other matter in relation to a referred complaint.
Section 5.105 sets out how a local government must deal with a complaint alleging a behavioural breach.
Section 8A.10 sets out circumstances in which the Inspector can defer dealing with a breach complaint.
Section 8B.37 provides that the Inspector may appoint a monitor to assist a local government to deal with a complaint.
[Section 8A.12 inserted: No. 47 of 2024 s. 125.]
Division 5 — Dealing with conduct breach
8A.13. Referral of complaint alleging conduct breach
(1) If the Inspector decides that a breach complaint alleges a conduct breach, other than a recurrent breach, the Inspector must —
(a) refer the complaint to the Principal Adjudicator; and
(b) give the Principal Adjudicator anything the Inspector has that is relevant to the complaint.
(2) The Principal Adjudicator may —
(a) deal with a breach complaint referred under subsection (1)(a); or
(b) allocate the breach complaint to a Deputy Adjudicator to deal with.
Section 8A.10 sets out circumstances in which the Inspector can defer dealing with a breach complaint.
[Section 8A.13 inserted: No. 47 of 2024 s. 125.]
8A.14. Dealing with recurrent breach
(1) If the Inspector decides that a breach complaint alleges a conduct breach that is a recurrent breach, the Inspector must —
(a) refer the complaint under section 8A.13(1)(a) to be dealt with as a conduct breach but not a recurrent breach; or
(b) make an allegation to the State Administrative Tribunal that the council member committed a recurrent breach.
(2) The Inspector must notify the complainant and the respondent of any action taken under subsection (1)(a) or (b).
(3) The fact that the person who made the breach complaint does not want an allegation arising from the complaint to be made to the State Administrative Tribunal does not prevent the Inspector from making the allegation.
(4) The State Administrative Tribunal must make a finding as to whether the respondent committed a recurrent breach.
(5) If the State Administrative Tribunal finds that the respondent committed a recurrent breach, the Tribunal may treat the recurrent breach as if it were a specified breach and —
(a) make an order mentioned in section 8A.25(1)(a); or
(b) order 1 or more of the sanctions described in section 8A.25(1)(b)(i) to (x).
(6) Section 8A.25(4), (5) and (6) extend to an order made under subsection (5).
Section 8A.10 sets out circumstances in which the Inspector can defer dealing with a breach complaint.
[Section 8A.14 inserted: No. 47 of 2024 s. 125.]
8A.15. Mediation
(1) An adjudicator may —
(a) request the complainant and the respondent to participate in mediation in relation to a breach complaint referred under section 8A.13(1)(a); and
(b) if the parties agree to the request, defer the making of a finding under section 8A.18 pending the outcome of the mediation.
(2) Regulations may provide for or regulate matters relating to mediation under this section, including —
(a) the appointment of mediators; and
(b) the procedures to be followed when mediation is undertaken; and
(c) the time allowed for mediation; and
(d) payment and recovery of the costs of mediation.
[Section 8A.15 inserted: No. 47 of 2024 s. 125.]
8A.16. Withdrawal of complaint referred to adjudicator
(1) A person who has made a breach complaint that has been referred under section 8A.13(1)(a) can withdraw the complaint at any time before an adjudicator makes a finding under section 8A.18.
(2) A withdrawal under subsection (1) —
(a) must be made in writing; and
(b) must be given to the adjudicator.
(3) If a breach complaint is withdrawn under subsection (1), the adjudicator must —
(a) give the complainant an acknowledgment in writing that the withdrawal of the complaint has been received; and
(b) notify the respondent that the complaint has been withdrawn.
(4) However, subsection (3) does not apply if the adjudicator is satisfied that it is appropriate for the breach complaint to be dealt with under this Division despite its withdrawal, in which event —
(a) this Division continues to apply as if the complaint had not been withdrawn; and
(b) the adjudicator must notify the complainant accordingly.
[Section 8A.16 inserted: No. 47 of 2024 s. 125.]
8A.17. Practice and procedure
(1) In exercising a power under this Act, an adjudicator must have regard to —
(a) the provision of good government by local governments; and
(b) the public interest.
(2) For the purpose of helping to deal with a breach complaint, an adjudicator may request the Inspector to provide anything further that the adjudicator requires.
(3) The Inspector must comply with a request under subsection (2) so far as it is practicable to do so.
(4) To the extent that the practice and procedure of an adjudicator are not prescribed under this Act, they are to be as the Principal Adjudicator determines.
See also section 8B.30.
[Section 8A.17 inserted: No. 47 of 2024 s. 125.]
8A.18. Finding as to whether conduct breach has occurred
(1) If a breach complaint is referred under section 8A.13(1)(a), the adjudicator must make a finding as to whether or not a conduct breach has occurred.
(2) Before making a finding under subsection (1) or an order under subsection (4), the adjudicator must give the respondent a reasonable opportunity to make submissions on the matter.
Section 8B.30(1)(c) provides that an adjudicator may receive written or oral submissions as the adjudicator thinks appropriate.
(3) When determining how a conduct breach should be dealt with under subsection (4), the adjudicator may take into account —
(a) the outcome of mediation requested under section 8A.15; or
(b) a refusal by a person to participate in mediation requested under section 8A.15.
(4) The conduct breach must be dealt with by —
(a) ordering that no sanction be imposed; or
(b) ordering that the respondent —
(i) be publicly censured as specified in the order; or
(ii) apologise publicly as specified in the order; or
(iii) undertake counselling as specified in the order; or
(iv) undertake training as specified in the order; or
(v) is not entitled to be paid, in respect of a period of not more than 3 months specified in the order, the fees and allowances which the person would otherwise be entitled to be paid under Part 5 Division 8 in respect of the specified period; or
(vi) is not entitled to attend a meeting of a committee of a council for a period of not more than 3 months specified in the order; or
(vii) is suspended for a period of not more than 3 months specified in the order;
or
(c) ordering 2 or more of the sanctions described in paragraph (b)(i) to (vii).
(5) If a sanction described in subsection (4)(b)(ii), (iii) or (iv) is ordered, the respondent must notify the Inspector when the respondent has complied with the order.
(6) If the respondent cannot comply with an order ordering a sanction described in subsection (4)(b)(ii), the local government may apologise on behalf of the respondent and notify the Inspector accordingly.
(7) If a sanction described in subsection (4)(b)(v) is ordered, section 8A.25(4) and (5) apply as if the sanction were ordered under section 8A.25(1)(b)(v).
(8) If a sanction described in subsection (4)(b)(vii) is ordered, section 8A.25(6) applies as if the sanction were ordered under section 8A.25(1)(b)(vii).
(9) The adjudicator must give notice of how the adjudicator deals with the matter under subsection (4) to the complainant, the respondent and the Inspector.
(10) A finding that a conduct breach has occurred must be based on evidence from which it may be concluded that it is more likely that the conduct breach occurred than that it did not occur.
[Section 8A.18 inserted: No. 47 of 2024 s. 125.]
8A.19. Costs of adjudication
(1) To the extent that an adjudicator’s remuneration and allowances relate to a particular breach complaint, an amount equal to the amount of the remuneration and allowances, as certified by the Principal Adjudicator, must be paid to the State by the local government of the council member who is the subject of the complaint.
(2) If the adjudicator finds that a conduct breach has occurred, the adjudicator may order that the respondent pay to the local government specified in the order an amount equal to the amount to be paid by the local government to the State in relation to the complaint under subsection (1).
(3) An amount certified under subsection (1) or ordered to be paid under subsection (2) is recoverable by the State or the local government, as the case requires, in a court of competent jurisdiction as a debt due to the State or the local government.
[Section 8A.19 inserted: No. 47 of 2024 s. 125.]
8A.20. Publication of censures and orders
(1) The Inspector must publish on the Inspector’s website —
(a) any finding by an adjudicator as to whether or not a conduct breach has occurred; and
(b) any order made under section 8A.18(4) by an adjudicator; and
(c) the terms of any censure ordered by an adjudicator under section 8A.18(4)(b)(i) or (c).
(2) Regulations may specify the period for which information referred to in subsection (1) must be kept on the Inspector’s website.
See also section 5.96C in relation to the recording and publication of information.
[Section 8A.20 inserted: No. 47 of 2024 s. 125.]
8A.21. SAT’s enforcement powers
(1) The Inspector may refer to the State Administrative Tribunal any failure of a person to comply with an order ordering a sanction described in section 8A.18(4)(b)(ii), (iii) or (iv).
(2) The State Administrative Tribunal may, if satisfied that the person failed to comply with the order —
(a) make an order mentioned in section 8A.18(4)(a); or
(b) order 1 or more of the sanctions described in section 8A.25(1)(b)(v) to (x) as if the failure to comply were a specified breach.
(3) Section 8A.25(4), (5) and (6) extend to an order made under subsection (2).
[Section 8A.21 inserted: No. 47 of 2024 s. 125.]
8A.22. Review of adjudicator decision
(1) A complainant or respondent may apply to the State Administrative Tribunal for a review of a decision of an adjudicator to make an order under section 8A.18(4).
(2) The application may be made, and the review carried out, irrespective of whether the complainant or respondent is a council member.
[Section 8A.22 inserted: No. 47 of 2024 s. 125.]
Division 6 — Dealing with specified breach
8A.23. Investigation and report of complaint alleging specified breach
(1) If the Inspector decides that a breach complaint alleges a specified breach, the Inspector may —
(a) allocate the complaint to an investigator for investigation and report; or
(b) take any other action authorised under this Act.
(2) After receiving a report from an investigator —
(a) the Inspector may deal with the complaint by —
(i) making an allegation under section 8A.24(1); or
(ii) commencing a prosecution for an offence; or
(iii) issuing a caution to the respondent; or
(iv) declining to take any action;
or
(b) if section 9.22D applies, an infringement notice may be issued under that section.
(3) The Inspector must notify the complainant and the respondent of any action taken under subsection (2).
Section 8A.10 sets out circumstances in which the Inspector can defer dealing with a breach complaint.
The Inspector may conduct an inquiry under Part 8 Division 1.
[Section 8A.23 inserted: No. 47 of 2024 s. 125.]
8A.24. Allegation to SAT of specified breach
(1) If the Inspector considers it appropriate to do so, the Inspector may, on the Inspector’s own initiative or after investigation of a breach complaint under section 8A.23, make an allegation to the State Administrative Tribunal that a council member has committed a specified breach.
(2) In deciding whether it would be appropriate to make an allegation to the State Administrative Tribunal, the Inspector must consider whether it would be more appropriate for the matter to be dealt with in another way.
(3) The Inspector cannot make an allegation under subsection (1) if the council member has already been tried by a court for the offence the commission of which is the specified breach.
(4) The Inspector cannot make an allegation under subsection (1) in respect of a commissioner.
(5) The fact that a person who made a breach complaint does not want an allegation arising from the complaint to be made to the State Administrative Tribunal does not prevent the Inspector from making the allegation.
[Section 8A.24 inserted: No. 47 of 2024 s. 125.]
8A.25. Sanction for specified breach
(1) If, on an allegation under section 8A.24(1), the State Administrative Tribunal finds that the person against whom the allegation was made committed a specified breach, it may —
(a) order that no sanction be imposed; or
(b) order that the person —
(i) be publicly censured as specified in the order; or
(ii) apologise publicly as specified in the order; or
(iii) undertake counselling as specified in the order; or
(iv) undertake training as specified in the order; or
(v) is not entitled to be paid, in respect of a period of not more than 6 months specified in the order, the fees and allowances which the person would otherwise be entitled to be paid under Part 5 Division 8 in respect of the specified period; or
(vi) is not entitled to attend a meeting of a committee of a council for a period of not more than 6 months specified in the order; or
(vii) is suspended for a period of not more than 6 months specified in the order; or
(viii) is, for a period of not more than 5 years specified in the order, disqualified from holding office as a member of a council; or
(ix) is disqualified from holding office as mayor or president for the rest of the person’s term as council member, if, for the local government concerned, the method of filling the office of mayor or president is election by the council; or
(x) is disqualified from holding office as deputy mayor or deputy president for the rest of the person’s term as council member;
or
(c) order 2 or more of the sanctions described in paragraph (b)(i) to (x).
(2) If a sanction described in subsection (1)(b)(ii), (iii) or (iv) is ordered, the person must notify the Inspector when the person has complied with the order.
(3) If the person cannot comply with an order ordering a sanction described in subsection (1)(b)(ii), the local government may apologise on behalf of the person and notify the Inspector accordingly.
(4) If a sanction described in subsection (1)(b)(v) is ordered —
(a) the order may provide that —
(i) the sanction applies only to a proportion of the fees and allowances as specified in the order; or
(ii) the scope of the sanction is otherwise limited as specified in the order;
and
(b) if the local government concerned pays an annual allowance or annual fee under Part 5 Division 8 to the person in advance (either wholly or in part) — the person must repay the advance payment to the extent determined in accordance with regulations.
(5) Regulations may provide for the local government to recover any amount repayable under subsection (4)(b) if it is not repaid.
(6) If a sanction described in subsection (1)(b)(vii) is ordered —
(a) the order may provide that —
(i) the suspension does not apply to activities of a kind specified in the order; or
(ii) the scope of the suspension is otherwise limited as specified in the order;
and
(b) subject to paragraph (a), the person cannot, while suspended, perform the person’s powers and duties as a council member; and
(c) the suspension does not prevent the term of office of the person from continuing to run while the person is suspended; and
(d) except as provided in section 2.25A, the suspension does not affect —
(i) the application of Part 4 Divisions 3 and 4 in relation to the person’s office; or
(ii) the eligibility of the person to be a candidate to be elected as a member of a council, including to fill the office from which the person is suspended.
[Section 8A.25 inserted: No. 47 of 2024 s. 125.]
8A.26. Publication of censures and SAT orders
(1) The Inspector must publish on the Inspector’s website —
(a) any finding or order made under section 8A.14(5), 8A.21(2), 8A.25(1) or 8A.27(2); and
(b) the terms of any censure ordered under section 8A.14(5), 8A.21(2) or 8A.25(1)(b)(i); and
(c) any other prescribed information.
(2) Subsection (1)(a) does not apply in relation to a finding or order to the extent that —
(a) the finding or order includes protected matter (as defined in the State Administrative Tribunal Act 2004 section 3(1)); or
(b) the State Administrative Tribunal has ordered that the order or parts of the order not be published.
(3) The Inspector —
(a) must publish a finding or order within the period of 14 days after the finding or order is given to the Inspector; and
(b) if the finding or order is subject to appeal, must include a note to that effect.
(4) Regulations may specify the period for which information referred to in subsection (1) must be kept on the Inspector’s website.
See also section 5.96C in relation to the recording and publication of information.
[Section 8A.26 inserted: No. 47 of 2024 s. 125.]
8A.27. SAT’s enforcement powers
(1) The Inspector may refer to the State Administrative Tribunal any failure of a person to comply with an order made under section 8A.25(1)(b)(ii), (iii) or (iv).
(2) The State Administrative Tribunal may, if satisfied that the person failed to comply with the order, treat the failure to comply as if it were a specified breach and —
(a) make an order mentioned in section 8A.25(1)(a); or
(b) order 1 or more of the sanctions described in section 8A.25(1)(b)(v) to (x).
(3) Section 8A.25(4), (5) and (6) extend to an order made under subsection (2).
(4) Nothing in this section restricts the operation of the State Administrative Tribunal Act 2004 sections 85 and 86.
[Section 8A.27 inserted: No. 47 of 2024 s. 125.]
Division 7 — General complaints
8A.28. General complaint
relevant person means —
(a) a person who is or has been —
(i) a member of a council; or
(ii) a member of a committee of a council; or
(iii) an employee;
or
(b) a person who is or has been a candidate for election as a council member; or
(c) a person or body with whom a local government or a person referred to in paragraph (a) has, has had, may have or may have had a financial or other association.
(2) A person may make a complaint to the Inspector in accordance with subsection (5) if the person has reason to believe that a relevant person or local government has contravened, or is contravening, a provision of this Act or the regulations.
(3) A complaint cannot be made under subsection (2) about a matter which, if found to have occurred, would constitute a behavioural breach, a conduct breach or a specified breach.
(4) A complaint made under subsection (2) is a general complaint.
(5) A general complaint must —
(a) be made in the manner and form approved by the Inspector; and
(b) give details of the following —
(i) the person making the complaint;
(ii) the person who is the subject of the complaint;
(iii) the contravention;
and
(c) include any other information required by the regulations.
[Section 8A.28 inserted: No. 47 of 2024 s. 125.]
8A.29. Acknowledgment of general complaint
The Inspector must, within 14 days after the day on which the Inspector receives a general complaint, give the complainant an acknowledgment in writing that the complaint has been received.
[Section 8A.29 inserted: No. 47 of 2024 s. 125.]
8A.30. Preliminary assessment of general complaint
(1) The Inspector may conduct a preliminary assessment of a general complaint for the purpose of deciding whether to accept the complaint.
(2) For the purpose of a preliminary assessment, the Inspector may make such inquiries and examine such matters as the Inspector considers necessary.
(3) Without limiting subsection (2), the Inspector may, by written notice, request any person to —
(a) attend before the Inspector for the purpose of discussing the subject matter of the general complaint; or
(b) give the Inspector any information or document specified in the notice.
(4) The Inspector must notify the complainant and the respondent if the complaint is accepted.
[Section 8A.30 inserted: No. 47 of 2024 s. 125.]
8A.31. Inspector may decline to accept, or to continue to deal with, general complaint
(1) The Inspector may decline to accept a general complaint if the Inspector is satisfied that —
(a) the complaint is frivolous, trivial, vexatious, misconceived or without substance; or
(b) there is insufficient evidence available to deal with the complaint; or
(c) it is not in the public interest, or an effective allocation of resources, to deal with the complaint; or
(d) the matter the subject of the complaint has been the subject of a previous general complaint (whether by the current complainant or anyone else) and the Inspector is satisfied that it is not appropriate to allow the further general complaint to be made; or
(e) the complainant has not complied with a request under section 8A.30(3).
(2) The Inspector may decline to continue dealing with a general complaint if the Inspector is satisfied that the complainant —
(a) has not complied with a requirement to provide information to the Inspector under section 8B.43; or
(b) has not complied with a direction under section 8B.45; or
(c) has not otherwise cooperated with the Inspector in relation to the complaint.
(3) If the Inspector declines to accept a general complaint under subsection (1), the Inspector must notify the complainant of the decision to decline and of the Inspector’s reasons for being satisfied as referred to in subsection (1).
(4) If the Inspector declines to continue dealing with a general complaint under subsection (2), the Inspector must notify the complainant and the respondent of the decision to decline and of the Inspector’s reasons for being satisfied as referred to in subsection (2).
[Section 8A.31 inserted: No. 47 of 2024 s. 125.]
8A.32. Inspector must decline to accept certain general complaints
(1) The Inspector must decline to accept a general complaint (the complaint) if the Inspector is satisfied that the conduct the subject of the complaint occurred more than 5 years before the Inspector received the complaint.
(2) Subsection (3) applies to a general complaint alleging an offence if there is a limit on the time within which proceedings may be commenced for the offence.
(3) The Inspector must decline to accept the complaint if the Inspector is satisfied that the Inspector received the complaint after the time referred to in subsection (2) had expired.
(4) The Inspector must decline to accept a general complaint if the Inspector is satisfied that the respondent has been tried by a court for the offence to which the complaint relates.
(5) If the Electoral Commissioner is responsible for the conduct of an election (as defined in section 4.1), the Inspector must —
(a) obtain the written agreement of the Electoral Commissioner before accepting a general complaint about the election; or
(b) decline to accept the complaint.
(6) The Inspector must decline to accept a general complaint if the complaint is an invalidity complaint as defined in section 4.80(2).
Under section 4.81 an invalidity complaint may be made to a Court of Disputed Returns.
(7) If the Inspector declines to accept a general complaint under this section, the Inspector must notify the complainant of the decision to decline and of the Inspector’s reasons for the decision.
[Section 8A.32 inserted: No. 47 of 2024 s. 125.]
8A.33. Inspector may refer general complaint to local government
(1) The Inspector may refer a general complaint to the local government concerned if the Inspector is satisfied that it is more appropriate for the local government to deal with the complaint than having the complaint dealt with under this Part.
(2) If the complaint relates to the CEO, the Inspector may issue instructions to the local government as to how the complaint is to be dealt with by the local government and the local government must comply with the instructions.
(3) The local government must, within the time specified by the Inspector in instructions issued under subsection (2) or a longer period as allowed by the Inspector, advise the Inspector as to how instructions have been dealt with by the local government.
(4) The Inspector cannot refer a complaint under subsection (1) if —
(a) the respondent is being or has been prosecuted for an offence in respect of the matter the subject of the complaint; or
(b) the matter the subject of the complaint has been dealt with by infringement notice.
(5) If the Inspector refers a complaint under subsection (1) —
(a) this Division ceases to apply to the complaint; and
(b) the Inspector must notify the complainant and the respondent of the referral.
(6) Regulations may, in relation to the dealing with of a complaint relating to the CEO that is referred to a council under subsection (1), provide for a function of the CEO to be performed by the mayor or president or another employee.
[Section 8A.33 inserted: No. 47 of 2024 s. 125.]
8A.34. Dealing with general complaints
(1) If the Inspector accepts a general complaint, the Inspector may —
(a) allocate the complaint or matter to an investigator for investigation and report; or
(b) take any other action authorised under this Act.
(2) Section 8A.10 applies to a general complaint as if it were a breach complaint.
(3) The Inspector may —
(a) request the complainant and the respondent to participate in mediation in relation to the general complaint; and
(b) if the parties agree to the request — defer the making of a decision under subsection (5) pending the outcome of the mediation.
(4) Regulations made for the purposes of section 8A.15(2) apply for the purposes of subsection (3).
(5) If, after receiving a report from an investigator, the Inspector is of the view that a person or local government has contravened, or is contravening, a provision of this Act or the regulations —
(a) the Inspector may deal with the general complaint by —
(i) commencing a prosecution for an offence; or
(ii) issuing a caution to the respondent; or
(iii) referring the matter to the local government to take action; or
(iv) declining to take any action;
or
(b) if section 9.22D applies, an infringement notice may be issued under that section.
(6) In addition to, or instead of, acting under subsection (5), the Inspector may give the respondent a compliance notice under section 8B.61.
[Section 8A.34 inserted: No. 47 of 2024 s. 125.]
8A.35. Report if finding is about CEO
(1) Nothing in this section limits the operation of section 8A.34(5).
(2) If the Inspector acts under section 8A.34(5) in relation to a CEO, the Inspector may give the investigator’s report to the local government and —
(a) make recommendations to the local government as to action that should be taken by the local government in consequence of the investigator’s report; and
(b) require the local government to give the Inspector written advice setting out the things that the local government has done or proposes to do to give effect to the recommendations of the Inspector; and
(c) issue instructions to the local government as to the procedure to be followed by the local government in dealing with the investigator’s report.
(3) The advice required under subsection (2)(b) must be given to the Inspector within the time specified by the Inspector as part of the requirement or a longer period allowed by the Inspector.
(4) The local government must —
(a) comply with the instructions issued under subsection (2)(c); and
(b) within the time specified by the Inspector in the instructions or a longer period allowed by the Inspector, advise the Inspector as to how the local government has complied with the instructions.
(5) Regulations may, in relation to the dealing with of an investigator’s report given to a local government under this section, provide for a function of the CEO to be performed by the mayor or president or another employee.
[Section 8A.35 inserted: No. 47 of 2024 s. 125.]
Division 8 — Miscellaneous
8A.36. Confidentiality about complaints
complaint means —
(a) a complaint to which section 5.105 applies; or
(b) a breach complaint; or
(c) a general complaint about an individual.
(2) A person to whom this subsection applies in relation to a complaint must not, directly or indirectly, disclose or use information that the complaint has been made or information about any detail of the complaint.
(3) Subsection (2) applies to the following —
(a) a complainant;
(b) an individual who is the subject of a complaint;
(c) a person who performs a function under this Act in respect of a complaint;
(d) a person who, as a result of anything done under this Act, becomes aware of any detail of a complaint knowing it to be relevant to the complaint.
(4) Subsection (2) does not apply to the disclosure or use of information that is —
(a) already in the public domain; or
(b) statistical or other information that could not reasonably be expected to lead to the identification of any person to whom it relates.
(5) A person does not commit an offence under subsection (2) if the disclosure or use of the information is authorised under subsection (6).
(6) The disclosure or use of information to which subsection (2) applies is authorised if the information is disclosed or used in any of the following circumstances —
(a) for the purpose of, or in connection with the performance of, a function under this Act;
(b) for the purpose of, or in connection with, the Minister performing a function in relation to a local government;
(c) as required under a written law;
(d) for the purpose of, or in connection with, obtaining or providing legal advice or representation in relation to the complaint;
(e) for the purpose of any legal proceedings under this Act;
(f) if a sanction has been imposed under a local government’s code of conduct or under section 8A.14(5), 8A.18(4), 8A.21(2), 8A.25(1) or a complaint has been dealt with under section 8A.34(5) or (6);
(g) if the Inspector directs that the disclosure or use is in the public interest;
(h) other circumstances prescribed by the regulations.
(7) Subsection (6) does not limit the operation of section 8B.46 in relation to the disclosure of information.
[Section 8A.36 inserted: No. 47 of 2024 s. 125.]
8A.37. When Inspector may exercise discretion regarding notification requirement
notification requirement means a requirement to notify under any of the following provisions —
(a) section 8A.7(4)(a) or (b);
(b) section 8A.8(4);
(c) section 8A.11(3)(b);
(d) section 8A.14(2);
(e) section 8A.23(3);
(f) section 8A.30(4);
(g) section 8A.31(4).
(2) A notification requirement does not apply if the Inspector is of the opinion that giving the notification would be contrary to the public interest, including because it might prejudice —
(a) a person’s fair trial; or
(b) an investigation or inquiry under this Act; or
(c) any other investigation that is being undertaken by another public officer or body of the State, the Commonwealth, another State or a Territory; or
(d) any action taken as a result of an investigation or inquiry under this Act or an investigation mentioned in paragraph (c).
[Section 8A.37 inserted: No. 47 of 2024 s. 125.]
8A.38. Giving false or misleading information
(1) A person commits an offence if the person gives information, in any of the circumstances described in subsection (2), knowing the information to be false or misleading in a material particular.
(2) The circumstances in which subsection (1) applies are —
(a) when the information is given in a complaint under section 5.105, 8A.5 or 8A.28; or
(b) when the information is given to a person for the purposes of an investigation of whether or not a breach has occurred; or
(c) when the information is given to the Inspector or an adjudicator for the purposes of this Part.
[Section 8A.38 inserted: No. 47 of 2024 s. 125.]
Part 8B — Local Government Inspector, adjudicators and authorised officers
What this Part is about
(a) the Local Government Inspector; and
(b) adjudicators; and
(c) investigators; and
(d) monitors; and
(e) powers that may be exercised by authorised officers.
Division 1 — Local Government Inspector
Subdivision 1 — Appointment and terms and conditions of appointment
8B.1. Local Government Inspector
The office of Local Government Inspector is established.
[Section 8B.1 inserted: No. 47 of 2024 s. 125.]
8B.2. Appointment
(1) The Governor is to appoint an eligible person to the office of Local Government Inspector.
(2) A person is eligible for appointment if the person is, in the opinion of the Governor, a person who is suitably qualified to perform the functions of the Inspector.
(3) A person who is a council member is not eligible to hold the office of Local Government Inspector.
(4) Subject to section 8B.4, the Inspector holds office for the period, not exceeding 5 years, specified in the instrument of appointment.
(5) A person who has been appointed to the office of Local Government Inspector is eligible for reappointment once or more than once.
[Section 8B.2 inserted: No. 47 of 2024 s. 125.]
8B.3. Remuneration and terms and conditions of service
remuneration has the meaning given in the Salaries and Allowances Act 1975 section 4(1).
(2) Subject to the Salaries and Allowances Act 1975, the Inspector is entitled to be paid the remuneration determined by the Minister on the recommendation of the Public Sector Commissioner.
(3) The Minister may, on the recommendation of the Public Sector Commissioner, determine —
(a) the leave of absence to which the Inspector is entitled; and
(b) other terms and conditions of service that apply to the Inspector.
[Section 8B.3 inserted: No. 47 of 2024 s. 125.]
8B.4. When office becomes vacant
The office of Local Government Inspector becomes vacant if —
(a) the period for which the Inspector holds the office expires; or
(b) the person holding the office —
(i) dies; or
(ii) becomes ineligible, because of section 8B.2(3), to hold the office; or
(iii) resigns under section 8B.5; or
(iv) is removed from office under section 8B.6.
[Section 8B.4 inserted: No. 47 of 2024 s. 125.]
8B.5. Resignation
(1) The Inspector may at any time resign from office by written notice addressed to the Governor.
(2) The resignation takes effect on the day on which the notice is given to the Governor or on a later day specified in the notice.
[Section 8B.5 inserted: No. 47 of 2024 s. 125.]
8B.6. Removal from office
(1) The Governor may remove a person from the office of Local Government Inspector if —
(a) the person becomes permanently or indefinitely incapable of performing the duties of the office; or
(b) the person engages in paid employment outside the duties of the office, otherwise than with the approval of the Minister; or
(c) the person is, according to the Interpretation Act 1984 section 13D, a bankrupt or a person whose affairs are under insolvency laws; or
(d) the person has been incompetent in performing the duties of the office or has neglected to perform the duties of the office; or
(e) the person has been guilty of misconduct; or
(f) the person is nominated as a candidate to fill an office of councillor, elector mayor or president and the nomination is accepted.
(2) In subsection (1)(e) —
misconduct includes conduct that renders the person unfit to hold office even though the conduct does not relate to a duty of the office of Inspector.
[Section 8B.6 inserted: No. 47 of 2024 s. 125.]
8B.7. Outside employment
The Inspector must not engage in paid employment outside the Inspector’s functions under this Act without the approval of the Minister.
[Section 8B.7 inserted: No. 47 of 2024 s. 125.]
8B.8. Public service officer appointed as Inspector
(1) If a person who is a public service officer is appointed to the office of Local Government Inspector, the person is entitled to retain any accruing and existing rights, including any rights under the State Superannuation Act 2000, as if service as the Inspector were a continuation of service as a public service officer.
(2) If a person ceases to hold the office of Local Government Inspector and becomes a public service officer, the person’s service as the Inspector is to be regarded as service in the Public Service for the purpose of determining that person’s rights as a public service officer and, if applicable, for the purposes of the State Superannuation Act 2000.
(3) Subsection (4) applies to a person if —
(a) immediately before the person is appointed to the office of Local Government Inspector, the person occupies an office under the Public Sector Management Act 1994 Part 3; and
(b) the person serves 1 or more continuous terms of appointment in the office of Local Government Inspector; and
(c) the period of the last of those appointments expires by the passage of time and the person is not again appointed to that office.
(4) The person is entitled to be appointed to an office under the Public Sector Management Act 1994 Part 3 of at least the equivalent level of classification as the office under that Part referred to in subsection (3)(a).
[Section 8B.8 inserted: No. 47 of 2024 s. 125.]
8B.9. Appointment of person to act as Inspector
(1) The Minister may appoint a person to act in the office of Local Government Inspector on a temporary basis if —
(a) the office is vacant; or
(b) the person holding the office is unable to perform the functions of the Inspector because of sickness, absence or other cause.
(2) An appointment —
(a) may be terminated at any time by the Minister; and
(b) may be expressed to have effect only in the circumstances specified by the Minister.
(3) The period of an appointment must not exceed 3 months.
(4) While acting in accordance with the terms of their appointment, a person acting in the office of Local Government Inspector has all of the functions of the Inspector and the entitlements of that office.
(5) No act or omission of a person purporting to act in the office of Local Government Inspector can be questioned on the ground that the occasion for their appointment or so acting had not arisen or had ceased.
[Section 8B.9 inserted: No. 47 of 2024 s. 125.]
Subdivision 2 — Functions of Inspector
8B.10. Functions of Inspector
(1) The Inspector —
(a) has the following functions in relation to local governments and their operations and affairs —
(i) to monitor conduct;
(ii) to receive and deal with complaints under Part 8A;
(iii) to conduct investigations into local governments and their operations and affairs, whether in response to a complaint or on the Inspector’s own initiative;
(iv) to conduct inquiries under Part 8 Division 1;
(v) to provide education and information to assist in compliance with this Act and to guide the conduct of local governments;
and
(b) has any other functions conferred on the Inspector by this Act or any other written law.
(2) It is a function of the Inspector to do anything incidental or conducive to the performance of any of the Inspector’s other functions.
(3) The Inspector performs education and information functions under subsection (1)(a)(v) by doing the following —
(a) appointing monitors to assist local governments;
(b) analysing information gathered in the performance of the Inspector’s functions;
(c) analysing systems used by local governments to assist in compliance with this Act;
(d) using information the Inspector gathers from any source in support of the function;
(e) consulting with, and making recommendations to, local governments;
(f) providing information relevant to the function to local governments and the community.
(4) Without limiting Division 6, the Inspector has all the powers the Inspector needs to perform the functions of the Inspector under this Act or any other written law.
(5) If the Electoral Commissioner is responsible for the conduct of an election (as defined in section 4.1) —
(a) the validity of the election cannot be the subject of an investigation by the Inspector; and
(b) the Inspector must obtain the written agreement of the Electoral Commissioner before any other aspect of the election becomes the subject of an investigation by the Inspector.
[Section 8B.10 inserted: No. 47 of 2024 s. 125.]
8B.11. Conflict of interest
(1) This section applies if the Inspector is or becomes aware that the Inspector has an interest that conflicts or may conflict with a fair and impartial performance of a function of the Inspector.
(2) The Inspector must not take part, or take further part, in the performance of the function.
(3) As soon as practicable after this section applies, the Inspector must give notice about the matter to the Minister.
(4) If the Inspector gives notice to the Minister under subsection (3) about a matter, a person must be appointed under section 8B.9 to act in relation to the matter.
[Section 8B.11 inserted: No. 47 of 2024 s. 125.]
8B.12. Independence of Inspector and inspectorate officers
Except as provided under this Act, the Inspector and inspectorate officers are not subject to direction by the Minister or any other person in the performance of their functions.
The Minister may direct the Inspector to conduct an inquiry under section 8.4(2).
The Minister may give written directions to the Inspector under section 8B.13 and may request information under section 8B.14.
Inspectorate officers and investigators are subject to the general control and direction of the Inspector under sections 8B.32 and 8B.35.
[Section 8B.12 inserted: No. 47 of 2024 s. 125.]
8B.13. Minister may give Inspector directions
(1) The Minister may give written directions to the Inspector as to the general policy to be followed in the performance of the Inspector’s functions.
(2) However, a direction under subsection (1) cannot be about the performance of a function in relation to a particular person, a particular complaint or a matter relating to a particular complaint.
(3) The Inspector must comply with a direction given under subsection (1) unless, in the Inspector’s opinion, there are reasonable grounds for not complying with the direction.
(4) If the Inspector refuses to comply with a direction under subsection (1), the Inspector must cause the reasons for the refusal to be included in the report referred to in section 8B.17.
(5) The Minister must cause the text of a direction given under subsection (1) to be laid before each House of Parliament, or dealt with under section 8B.18, within 14 days after the direction is given.
Under section 8B.17(2) the text of a direction under this section must be included in the Inspector’s annual report.
[Section 8B.13 inserted: No. 47 of 2024 s. 125.]
8B.14. Minister may request information
document includes any tape, disc or other device or medium on which information is recorded or stored;
information means information specified, or of a description specified, by the Minister that relates to the Inspector’s functions.
(2) Subject to this section, the Minister is entitled —
(a) to have information in the possession of the Inspector; and
(b) where the information is in or on a document, to have, and make and retain copies of, that document.
(3) However, the Minister is not entitled to have information that is the subject of a non‑disclosure notation under section 8B.46(1).
(4) The Minister may request the Inspector —
(a) to give information in the possession of the Inspector to the Minister; or
(b) to give the Minister access to the information.
(5) The Inspector must comply with a request under subsection (4) unless, in the Inspector’s opinion, it is not in the public interest to do so.
(6) If the Inspector decides to comply with a request under subsection (4), the Inspector must make inspectorate officers and facilities available to the Minister for the purposes of obtaining the information and giving the Minister access to it.
[Section 8B.14 inserted: No. 47 of 2024 s. 125.]
8B.15. Consultation
The Inspector and the Minister, at the request of either, are to consult together, either directly or through appropriate representatives, in relation to any aspect of the Inspector’s functions.
[Section 8B.15 inserted: No. 47 of 2024 s. 125.]
8B.16. Delegation
(1) The Inspector may delegate any power or duty of the Inspector under another provision of this Act to an inspectorate officer.
(2) The Inspector cannot delegate a power or duty under subsection (1) to a monitor.
(3) A delegation under subsection (1) must be in writing signed by the Inspector.
(4) A person to whom a power or duty is delegated under subsection (1) cannot delegate that power or duty.
(5) A person exercising or performing a power or duty that has been delegated to the person under subsection (1) is taken to do so in accordance with the terms of the delegation unless the contrary is shown.
(6) This section does not limit the power of the Inspector to perform a function through an officer or agent.
(7) This section does not operate to affect the power of the Inspector to delegate under section 8.3.
[Section 8B.16 inserted: No. 47 of 2024 s. 125.]
8B.17. Annual report
(1) By 31 August in each year, the Inspector must prepare and provide to the Minister a report on the Inspector’s activities during the previous financial year.
(2) The report must include the text of any direction given under section 8B.13 during the previous financial year.
(3) The report must not include information about a breach complaint or a general complaint that could reasonably be expected to lead to the identification of a person who made, or is the subject of, the complaint unless, in dealing with the complaint —
(a) a sanction has been imposed under a local government’s code of conduct; or
(b) a sanction has been imposed under section 8A.14(5), 8A.18(4) or 8A.25(1); or
(c) the Inspector has acted under section 8A.34(5) or (6).
(4) The Inspector may apply to the Minister before 31 August for an extension of time in which to lodge the report and the Minister may grant an extension on such terms as the Minister thinks fit.
(5) The Minister must cause a copy of the report to be laid before each House of Parliament within 12 sitting days of the House after receiving it.
[Section 8B.17 inserted: No. 47 of 2024 s. 125.]
8B.18. Supplementary provision for laying document before Parliament
(a) at the beginning of a period referred to in section 8B.13(5) in respect of a document, a House of Parliament is not sitting; and
(b) in the Minister’s opinion, the House will not sit before the end of the period.
(2) The Minister must send the document to the Clerk of the House before the end of the period.
(3) When the document is sent to the Clerk of the House it is taken to have been laid before the House.
(4) The laying of a copy of a document that is taken to have occurred under subsection (3) must be recorded in the Minutes, or Votes and Proceedings, of the House on the first sitting day of the House after the Clerk received the document.
[Section 8B.18 inserted: No. 47 of 2024 s. 125.]
Division 2 — Adjudicators
Subdivision 1 — Appointment and terms and conditions of appointment
8B.19. Appointment of Principal Adjudicator and Deputy Adjudicator
(1) The Minister may appoint 1 person who is qualified under subsection (3) to the office of Principal Adjudicator.
(2) The Minister may appoint 1 or more persons who are qualified under subsection (3) to the office of Deputy Adjudicator.
(3) A person is qualified to be appointed to the office of Principal Adjudicator or Deputy Adjudicator if the person is a legal practitioner with at least 5 years’ legal experience.
(4) A person is not qualified to be appointed under subsection (1) or (2) if the person is —
(a) a council member; or
(b) employed by a local government, regional subsidiary or regional local government; or
(c) employed by WALGA.
(5) The offices of adjudicator are not offices in the Public Service.
[Section 8B.19 inserted: No. 47 of 2024 s. 125.]
8B.20. Terms and conditions of appointment
(1) Subject to section 8B.23, an adjudicator holds office for the period, not exceeding 4 years, specified in the adjudicator’s instrument of appointment.
(2) An adjudicator is eligible for reappointment once or more than once.
(3) Subject to this Division, an adjudicator holds office on the terms and conditions of appointment determined by the Minister.
[Section 8B.20 inserted: No. 47 of 2024 s. 125.]
8B.21. Remuneration
An adjudicator is entitled to be paid the remuneration and allowances determined by the Minister on the recommendation of the Public Sector Commissioner.
[Section 8B.21 inserted: No. 47 of 2024 s. 125.]
8B.22. Leave of absence
(1) The Minister may, on terms and conditions the Minister considers appropriate, grant the Principal Adjudicator leave to be absent from office.
(2) The Principal Adjudicator may, on terms and conditions the Principal Adjudicator considers appropriate, grant a Deputy Adjudicator leave to be absent from office.
[Section 8B.22 inserted: No. 47 of 2024 s. 125.]
8B.23. When office becomes vacant
The office of adjudicator becomes vacant if —
(a) the period for which the adjudicator holds the office expires; or
(b) the person holding the office —
(i) dies; or
(ii) ceases to be qualified for appointment to the office as provided by section 8B.19(3); or
(iii) resigns under section 8B.24; or
(iv) is removed from office under section 8B.25(1).
[Section 8B.23 inserted: No. 47 of 2024 s. 125.]
8B.24. Resignation
(1) An adjudicator may at any time resign by giving the Minister a signed letter of resignation.
(2) A resignation takes effect on the receipt of the letter by the Minister or on a later day specified in the letter.
[Section 8B.24 inserted: No. 47 of 2024 s. 125.]
8B.25. Removal from office
(1) The Minister may remove a person from the office of adjudicator if —
(a) the person becomes permanently or indefinitely incapable of performing the duties of the office; or
(b) the person is, according to the Interpretation Act 1984 section 13D, a bankrupt or a person whose affairs are under insolvency laws; or
(c) the person has been incompetent in performing the duties of the office or has neglected to perform the duties of the office; or
(d) the person has been guilty of misconduct; or
(e) the person is nominated as a candidate to fill an office of councillor, elector mayor or president and the nomination is accepted.
misconduct includes conduct that renders the adjudicator unfit to hold office as an adjudicator even though the conduct does not relate to a duty of the office.
[Section 8B.25 inserted: No. 47 of 2024 s. 125.]
Subdivision 2 — Functions and powers
8B.26. Functions of Principal Adjudicator
The Principal Adjudicator has the functions conferred on the Principal Adjudicator by this Act.
[Section 8B.26 inserted: No. 47 of 2024 s. 125.]
8B.27. Functions of Deputy Adjudicator
(1) The functions of a Deputy Adjudicator are —
(a) to assist the Principal Adjudicator in performing the Principal Adjudicator’s functions; and
(b) any other functions conferred on a Deputy Adjudicator by this Act.
(2) In performing the functions of a Deputy Adjudicator, a Deputy Adjudicator must comply with any directions of the Principal Adjudicator.
[Section 8B.27 inserted: No. 47 of 2024 s. 125.]
8B.28. General freedom from direction
Except as provided under this Act, an adjudicator is not subject to direction from the Minister, the Inspector or any other person in the performance of the adjudicator’s functions.
[Section 8B.28 inserted: No. 47 of 2024 s. 125.]
8B.29. Deputy Adjudicator acting as Principal Adjudicator
(1) If there is a vacancy in the office of Principal Adjudicator or the Principal Adjudicator is for any reason unable to act, the Deputy Adjudicator, or the most senior Deputy Adjudicator, is to perform the functions of the Principal Adjudicator.
(2) The Minister may resolve any question as to the seniority of Deputy Adjudicators.
(3) An act or omission of a Deputy Adjudicator acting in the Principal Adjudicator’s place cannot be questioned on the ground that the occasion to act had not arisen or had ceased.
[Section 8B.29 inserted: No. 47 of 2024 s. 125.]
8B.30. Procedure of adjudicators
(1) In dealing with a breach complaint an adjudicator —
(a) must act with as little formality as the requirements of this Act and a proper consideration of the matters before the adjudicator permit; and
(b) is not bound by the rules of evidence and may inform themself on any matter in any manner the adjudicator considers appropriate; and
(c) may receive written or oral submissions as the adjudicator considers appropriate.
(2) The Principal Adjudicator may give written directions as to the procedure to be followed by adjudicators but otherwise adjudicators may determine their own procedure.
[Section 8B.3 inserted: No. 47 of 2024 s. 125.]
8B.31. Annual report
(1) By 31 August in each year, the Principal Adjudicator must prepare and provide to the Minister a report on the breach complaints dealt with by all adjudicators during the previous financial year.
(2) The report must not include information that identifies a complainant or enables the identification of a council member against whom a breach complaint was made unless the complaint was referred to the adjudicator and the adjudicator made an order under section 8A.18(4)(b) or (c).
(3) The Principal Adjudicator may apply to the Minister before 31 August for an extension of time in which to lodge the report and the Minister may grant an extension on such terms as the Minister thinks fit.
(4) As soon as practicable after receiving the report, the Minister is to cause a copy of it to be laid before each House of Parliament.
[Section 8B.31 inserted: No. 47 of 2024 s. 125.]
Division 3 — Inspectorate officers
8B.32. Inspectorate officers
(1) Public service officers may be appointed under the Public Sector Management Act 1994 Part 3 for the following purposes —
(a) to assist the Inspector in the performance of the Inspector’s functions;
(b) to act as investigators if designated under section 8B.33;
(c) to assist monitors in the performance of monitors’ functions;
(d) otherwise, to perform functions of inspectorate officers in accordance with their terms of appointment.
(2) The Inspector may, by arrangement with the Departmental CEO or the chief executive officer of any other department of the Public Service, make use (either full‑time or part‑time) of the services of any public service officer in the Department or the other department.
(3) The Inspector may, by arrangement with the Departmental CEO or the chief executive officer of any other department of the Public Service, make use of any facilities of the Department or the other department.
(4) An arrangement under subsection (2) or (3) must be made on terms agreed to by the parties.
(5) In performing the functions of an inspectorate officer, the inspectorate officer is subject to the general direction and control of the Inspector.
[Section 8B.32 inserted: No. 47 of 2024 s. 125.]
Division 4 — Investigators
8B.33. Designating persons as investigators
(1) The Inspector may, in writing, designate any of the following persons as an investigator for the purposes of this Part —
(a) an inspectorate officer;
(b) any person who —
(i) is an officer of a Public Sector agency that provides services to the Department; and
(ii) in the opinion of the Inspector, has appropriate skills and knowledge to perform the functions of an investigator.
(2) A person may be designated as an investigator for a fixed or indefinite period.
(3) The Inspector may, in writing, revoke a designation at any time.
[Section 8B.33 inserted: No. 47 of 2024 s. 125.]
8B.34. Identity cards
(1) The Inspector must ensure that each investigator is issued with an identity card in a form approved by the Inspector.
(2) An investigator must, when exercising a power under Division 6 —
(a) carry the investigator’s identity card; and
(b) produce the investigator’s identity card if requested to do so.
(3) In any proceedings, the production of an identity card is evidence of the designation of the investigator to whom the identity card relates.
(4) A person must not, without reasonable excuse, fail to return the person’s identity card to the Inspector within 14 days after ceasing to be an investigator.
[Section 8B.34 inserted: No. 47 of 2024 s. 125.]
8B.35. Functions and powers of investigators
(1) An investigator has the functions that are given to an investigator under this Act.
(2) Without limiting Division 6, an investigator has all the powers that are needed for the performance of the investigator’s functions.
(3) In performing functions under this Act, investigators are subject to the general direction and control of the Inspector.
[Section 8B.35 inserted: No. 47 of 2024 s. 125.]
Division 5 — Monitors
8B.36. Terms used
monitoring assignment means an assignment set out under section 8B.39(2)(a) in a monitor’s terms of appointment;
monitoring officer means —
(a) a monitor; or
(b) an inspectorate officer assisting with a monitoring assignment.
[Section 8B.36 inserted: No. 47 of 2024 s. 125.]
8B.37. Inspector may appoint monitor for local government
(1) The Inspector may, by written notice to a local government, appoint a monitor for the local government —
(a) for the purposes of the model code of conduct as referred to in section 5.103(3A)(a); or
(b) on a request made to the Inspector under section 8B.38; or
(c) otherwise on the Inspector’s own initiative under subsection (2).
(2) The Inspector may appoint a monitor for a local government on the Inspector’s own initiative if —
(a) the Inspector is concerned that 1 or more of the following circumstances may be occurring or about to occur —
(i) the local government is not properly performing 1 or more of its functions;
(ii) the local government is not complying with 1 or more written laws applicable to it;
(iii) the local government is in need of assistance in performing 1 or more of its functions or in complying with 1 or more written laws applicable to it;
(iv) other circumstances exist that make it in the public interest for a monitor to be appointed for the local government;
and
(b) in the Inspector’s opinion, it is appropriate to appoint a monitor to assist the local government in relation to 1 or more of those circumstances.
[Section 8B.37 inserted: No. 47 of 2024 s. 125.]
8B.38. Request to appoint monitor
(1) A request to the Inspector to appoint a monitor for a local government may be made by any of the following —
(a) the mayor or president;
(b) the CEO;
(c) the local government*.
(2) A request under subsection (1) must —
(a) be made in writing; and
(b) give details of each matter in relation to which assistance is sought from a monitor; and
(c) include any other information required by the approved form.
(3) The Inspector may approve a form to be used for a request under subsection (1).
(4) For the purpose of making a decision on a request under subsection (1), the Inspector may seek further information —
(a) from the mayor or president who, or local government that, made the request; and
(b) from the CEO.
[Section 8B.38 inserted: No. 47 of 2024 s. 125.]
8B.39. Terms of appointment
(1) Before appointing a monitor for a local government, the Inspector must determine the monitor’s terms of appointment.
(2) The terms of appointment —
(a) must set out the assignment that the monitor is to perform; and
(b) must set out the period of appointment or how that period is to be determined; and
(c) must set out the remuneration and expenses required to be paid to the monitor by the local government in accordance with the regulations; and
(d) must specify the extent, if any, to which the monitor is authorised to exercise powers under section 8B.45; and
(e) must specify, which, if any, of the powers under section 8B.48 may be exercised by the monitor; and
(f) must provide for the monitor to report to the Inspector on the outcome of the monitoring assignment; and
(g) must provide for any prescribed matter; and
(h) may provide for any other matter that the Inspector considers appropriate.
Examples for the purposes of paragraph (b):
A fixed period of 6 months.
A period that ends when the monitor completes the monitoring assignment.
A period that ends when the Inspector, the monitor or the local government decides that the appointment is no longer required.
(3) The purpose of the monitoring assignment must be —
(a) if section 8B.37(1)(a) applies — to assist the local government to deal with matters raised by a complaint under section 5.105 or Part 8A; or
(b) if section 8B.37(1)(b) applies — to assist the local government in relation to the matters for which assistance is sought in accordance with section 8B.38(2)(b); or
(c) if section 8B.37(1)(c) applies — to assist the local government in relation to the circumstances mentioned in section 8B.37(2)(a) about which the Inspector considers it appropriate to appoint a monitor.
(4) The monitoring assignment may include any tasks or other activities that the Inspector considers appropriate for achieving that purpose.
(5) The terms of appointment must be included in the notice under section 8B.37(1) appointing the monitor.
(6) The monitor holds office on the terms of appointment.
[Section 8B.39 inserted: No. 47 of 2024 s. 125.]
8B.40. Functions and powers of monitor
(1) A monitor has the function of performing the monitoring assignment and has any other functions given to the monitor under this Act or any other written law.
(2) In addition to the powers, if any, conferred on a monitor under section 8B.39(2)(d) or (e) or prescribed under section 8B.41(i), the monitor has power to do all things necessary or convenient to be done in connection with the performance of the monitor’s functions.
(3) A monitor is entitled to attend and observe council meetings and committee meetings, including meetings that are closed to the public.
[Section 8B.40 inserted: No. 47 of 2024 s. 125.]
8B.41. Regulations
Regulations may make provision about monitors, including any of the following —
(a) prescribing how, or by whom, the remuneration and expenses to be paid to a monitor are to be determined, and the remuneration and expenses to be paid;
(b) requiring a local government to pay a monitor’s remuneration and expenses;
(c) providing for the recovery of any remuneration and expenses not paid to a monitor by a local government as required by the regulations;
(d) prescribing matters relating to the determination by the Inspector of a monitoring assignment;
(e) prescribing matters relating to the selection of persons to be monitors;
(f) prescribing other matters relating to the appointment of monitors;
(g) providing for the variation of a monitor’s terms of appointment;
(h) providing for the early termination of a monitor’s appointment;
(i) prescribing powers or duties of a monitor, including powers in relation to temporarily adjourning a council meeting or a committee meeting;
(j) prescribing, in relation to a monitor, powers or duties of the Inspector, a local government or any other person.
[Section 8B.41 inserted: No. 47 of 2024 s. 125.]
Division 6 — Powers of authorised officers
Subdivision 1 — Preliminary
8B.42. Terms used
authorised officer means any of the following —
(a) the Inspector;
(b) an investigator;
(c) subject to the monitor’s terms of appointment, a monitor;
authorised purpose, in relation to an authorised officer, means the performance of a function of the authorised officer;
entry warrant has the meaning given in section 8B.50(1);
remote communication means any way of communicating at a distance, including by telephone, facsimile, radio, videoconferencing, email and other electronic means.
[Section 8B.42 inserted: No. 47 of 2024 s. 125.]
Subdivision 2 — General power of Inspector to require information
8B.43. Inspector may require information
(1) The Inspector may, by written notice, require a local government, a council member or an employee to provide the Inspector with specified information —
(a) that concerns the local government or its operations or affairs; or
(b) that the Inspector otherwise requires for an authorised purpose.
(2) The notice must specify —
(a) the period (of not less than 14 days) within which the information must be provided; and
(b) the manner in which the information must be provided, which may be by electronic means; and
(c) the form in which the information must be provided, which may include a requirement to include an index or summary of the information provided.
(3) The notice must —
(a) be signed by the Inspector; and
(b) be given to the local government, member or employee required to provide the information.
(4) A person must not, without reasonable excuse, refuse or fail to comply with a requirement in a notice given under subsection (3)(b).
Section 8B.56 provides that self‑incrimination is not an excuse.
[Section 8B.43 inserted: No. 47 of 2024 s. 125.]
Subdivision 3 — Powers of authorised officers
8B.44. Scope of powers under s. 8B.45 and 8B.48
The powers under sections 8B.45 and 8B.48 can be exercised only in relation to —
(a) a local government; or
(b) a person who is or has been —
(i) a member of a council; or
(ii) a member of a committee of a council; or
(iii) an employee;
or
(c) a person who is or has been a candidate for election as a council member; or
(d) a person or body with whom a local government or a person referred to in paragraph (b) has, has had, may have or may have had a financial or other association.
[Section 8B.44 inserted: No. 47 of 2024 s. 125.]
8B.45. Powers to obtain evidence and information
(1) For an authorised purpose, the Inspector may by written notice direct a person (the subject person) to do 1 or more of the following —
(a) to appear in person before an authorised officer at a time and place specified in the direction;
(b) to give evidence (including evidence on oath) to an authorised officer;
(c) to produce to an authorised officer, or allow an authorised officer to have access to, specified documents, information or property;
(d) to do anything necessary to enable an authorised officer to have access to any document, information or property in or under the custody or control of a person other than the subject person.
(2) A monitor may exercise a power of the Inspector under subsection (1) if authorised to do so under the monitor’s terms of appointment.
(3) An authorised officer may administer an oath for the purposes of subsection (1)(b).
(4) A direction under subsection (1)(c) to produce documents, information or property must specify —
(a) the time by which, or period within which, the documents, information or property must be produced; and
(b) the manner in which the documents or information must be provided, which may be by electronic means; and
(c) the form in which the documents or information must be provided, which may include a requirement to include an index or summary of the documents or information provided.
(5) Subsection (1)(c) and (d) extend to documents and information in or under the custody or control of banks or other financial institutions.
(6) For an authorised purpose, an authorised officer may —
(a) take copies of, or extracts from, any document to which an authorised officer gains access under this section; or
(b) take custody or control of any document or property to which an authorised officer gains access under this section on local government property.
(7) A direction given to a person under subsection (1) may be varied or withdrawn by further written notice given to the person.
(8) Nothing in this section limits the authority of an authorised officer to obtain evidence or information by a voluntary record of interview.
It is an offence under section 8B.57(1)(b) to refuse or fail to comply with a direction lawfully given by an authorised officer.
[Section 8B.45 inserted: No. 47 of 2024 s. 125.]
8B.46. Non‑disclosure notation
(1) A notice issued by the Inspector under section 8B.45(1) may include a notation (a non‑disclosure notation) to the effect that the following are prohibited except in the circumstances, if any, specified in the notation —
(a) disclosure of information about the notice;
(b) disclosure of information about the authorised purpose (whether past, present or contingent) for which the notice was issued.
(2) The non‑disclosure notation must be accompanied by a written statement setting out the rights and obligations imposed by section 8B.47.
(3) The non‑disclosure notation can be included only if the Inspector is satisfied that —
(a) not doing so might prejudice —
(i) a person’s safety or reputation; or
(ii) a person’s fair trial, if the person has been charged with an offence or such a charge is imminent; or
(iii) the performance of the authorised purpose for which the notice is issued;
or
(b) not doing so might otherwise be contrary to the public interest.
(4) The Inspector may cancel a non‑disclosure notation if the reason for the notation no longer exists.
(5) If the Inspector cancels the non‑disclosure notation —
(a) the Inspector must advise the person to whom the notice was given in writing; and
(b) the cancellation takes effect when the person is advised.
(6) Unless it is cancelled earlier, the non‑disclosure notation ceases to have effect 5 years after the notice containing the notation is issued.
[Section 8B.46 inserted: No. 47 of 2024 s. 125.]
8B.47. Failure to comply with non‑disclosure notation
non‑disclosure notation —
(a) means a notation included in a notice under section 8B.46(1); but
(b) does not include a notation cancelled under section 8B.46(4) or that has ceased to have effect under section 8B.46(6).
(2) A person must not disclose —
(a) information about a notice that includes a non‑disclosure notification; or
(b) information about the authorised purpose (whether past, present or contingent) for which the notice was issued.
(3) Subsection (2) does not apply if the disclosure is made —
(a) in the circumstances, if any, permitted by the notation; or
(b) to a legal practitioner for the purpose of obtaining legal advice or representation in relation to the notice; or
(c) after the information is in the public domain.
[Section 8B.47 inserted: No. 47 of 2024 s. 125.]
8B.48. Entry powers
(1) For an authorised purpose, an authorised officer may enter a place in accordance with this section.
(2) An authorised officer may, with assistants if necessary, enter local government property with or without the consent of the local government.
(3) An authorised officer may, with assistants if necessary, enter a place other than local government property if —
(a) the occupier gives informed consent to the entry; or
(b) the occupier has been given notice of the entry and given informed consent to the entry; or
(c) the entry is authorised under an entry warrant.
(4) For the purposes of subsection (3)(a) and (b), an occupier gives informed consent to entry if the occupier consents to the entry after —
(a) being informed by the authorised officer —
(i) of the powers that the authorised officer wants to exercise in respect of the place; and
(ii) of the reason why the authorised officer wants to exercise those powers; and
(iii) that the occupier can refuse to consent to the authorised officer doing so;
or
(b) being given a notice of entry under subsection (3)(b).
(5) A notice of entry under subsection (3)(b) must specify —
(a) the powers that the authorised officer wants to exercise in respect of the place; and
(b) the reason why the authorised officer wants to exercise those powers; and
(c) that the occupier can refuse to consent to the authorised officer doing so.
(6) The notice must be given not less than 24 hours before the power of entry is exercised.
(7) Successive entries for the purpose specified in the notice are to be regarded as entries to which that notice relates.
[Section 8B.48 inserted: No. 47 of 2024 s. 125.]
8B.49. Application of Criminal Investigation Act 2006 to Inspector and investigators
(1) For the purposes of the Criminal Investigation Act 2006 section 9(1), a designation under this Part as an investigator is taken to be an appointment to an office.
(2) For the purposes of the Criminal Investigation Act 2006 —
(a) each of the following is prescribed under section 9(1)(a) of that Act —
(i) the office of Local Government Inspector;
(ii) the office of investigator;
and
(b) the powers under Parts 6 and 7 of that Act are prescribed under section 9(1)(b) of that Act in respect of those offices.
[Section 8B.49 inserted: No. 47 of 2024 s. 125.]
Subdivision 4 — Entry warrants
8B.50. Application for entry warrant
(1) An authorised officer may apply to a magistrate for a warrant (an entry warrant) authorising the entry of a place for an authorised purpose.
(2) Subject to this section —
(a) an application for an entry warrant must be in writing and include the information prescribed by the regulations; and
(b) the grounds of the application must be verified by affidavit; and
(c) the applicant must appear in person before the magistrate to provide information in support of the application on oath.
(3) If the warrant is needed urgently and the applicant reasonably suspects that a magistrate is not available within a reasonable distance of the applicant, an application for an entry warrant may be made by remote communication.
(4) A magistrate must reject an application for an entry warrant made by remote communication unless satisfied that —
(a) the warrant is needed urgently; and
(b) a magistrate is not available within a reasonable distance of the applicant.
(5) If an application for an entry warrant is made by remote communication and it is not practicable to send the magistrate written material —
(a) the application may be made orally; and
(b) the magistrate must make a written record of the application and information given in support of it; and
(c) if the warrant is issued — the applicant must, as soon as practicable, send the magistrate an affidavit verifying the application and information given in support of it.
[Section 8B.50 inserted: No. 47 of 2024 s. 125.]
8B.51. Issue and content of entry warrant
(1) On an application for an entry warrant, a magistrate may issue the warrant if satisfied that it is necessary for an authorised officer to enter a place for an authorised purpose.
(2) An entry warrant must contain the following information —
(a) a reasonably particular description of the place to which it relates;
(b) a reasonably particular description of the authorised purpose for which entry to the place is required;
(c) if the authorised purpose is investigating a suspected offence under this Act — the provision of the Act suspected of being contravened;
(d) the period, not exceeding 14 days, during which it may be executed;
(e) the name of the magistrate who issued it;
(f) the date and time when it was issued.
(3) An entry warrant must be in the form prescribed by the regulations.
(4) If a magistrate issues an entry warrant on an application made by remote communication —
(a) if practicable, the magistrate must send a copy of the original warrant to the applicant by remote communication; or
(b) if that is not practicable —
(i) the magistrate must provide the applicant by remote communication with the information that must be set out in the warrant; and
(ii) the applicant must complete a form of warrant with the information received and give the magistrate a copy of the form as soon as practicable after doing so; and
(iii) the magistrate must attach the copy of the form to the original warrant and any affidavit received from the applicant and make them available for collection by the applicant.
(5) The copy of the original warrant sent, or the form of the warrant completed, under subsection (4) has the same force and effect as the original warrant.
[Section 8B.51 inserted: No. 47 of 2024 s. 125.]
8B.52. Refusal of entry warrant
If a magistrate refuses to issue an entry warrant, the magistrate must record on the application, or the written record of the application, the fact of, the date and time of, and the reasons for, the refusal.
[Section 8B.52 inserted: No. 47 of 2024 s. 125.]
8B.53. Effect of entry warrant
(1) An entry warrant comes into force when it is issued by a magistrate.
(2) An entry warrant may be executed according to its terms by an authorised officer entitled to enter the place for the authorised purpose specified in the warrant.
(3) However, if an applicant for an entry warrant contravenes section 8B.50(5)(c) or 8B.51(4)(b)(ii), evidence obtained under the entry warrant is not admissible in proceedings in a court or tribunal.
[Section 8B.53 inserted: No. 47 of 2024 s. 125.]
Subdivision 5 — General
8B.54. Protection from liability
protected person means —
(a) the Inspector; or
(b) an adjudicator; or
(c) a monitor; or
(d) an investigator; or
(e) a person acting under the direction of the Inspector, an adjudicator or a monitor; or
(f) a person who was a person referred to in paragraph (a), (b), (c), (d) or (e).
(2) No civil liability is incurred by a protected person for anything that the protected person has done, in good faith, in the performance or purported performance of a function under this Act.
(3) The protection given by this section applies even though the thing done as described in subsection (2) may have been capable of being done whether or not this Act had been enacted.
(4) Despite subsection (2), the State is not relieved of any liability that it might have for a protected person having done anything described in that subsection.
(a) a reference to the doing of anything includes a reference to the omission to do anything; and
(b) liability includes liability for defamation.
[Section 8B.54 inserted: No. 47 of 2024 s. 125.]
8B.55. Protection from liability for publishing official statements
(1) This section applies to statements (in any form) made or issued by a protected person (as defined in section 8B.54(1)) in the performance or purported performance of a function under this Act.
(2) A protected person is not liable for publishing, in good faith —
(a) a statement to which this section applies; or
(b) a fair report or summary of a statement to which this section applies.
(3) In subsection (2) —
liable includes liable for defamation.
(4) Nothing in this section limits section 8B.54.
[Section 8B.55 inserted: No. 47 of 2024 s. 125.]
8B.56. Self‑incrimination
(1) A person is not excused from complying with a requirement under section 8B.43 or a direction under section 8B.45 on the ground that the answer to a question or the production of a document, information or property might incriminate the person or expose the person to a penalty.
(2) However, any answer given or document, information or property produced is not admissible in evidence in any proceedings against the person other than proceedings for perjury or an offence under section 8B.57(1)(c).
[Section 8B.56 inserted: No. 47 of 2024 s. 125.]
8B.57. Offences
(1) A person commits an offence if the person —
(a) hinders or obstructs an authorised officer in the performance of a function of the authorised officer; or
(b) refuses or fails to comply with a direction lawfully given by an authorised officer; or
(c) gives information to an authorised officer that is false or misleading.
(2) For the purposes of subsection (1), a person gives false or misleading information if the person does 1 or more of the following —
(a) states anything that the person knows is false or misleading in a material particular;
(b) omits from a statement anything without which the statement is, to the person’s knowledge, misleading in a material particular;
(c) gives or produces any record or other document that —
(i) the person knows is false or misleading in a material particular; or
(ii) omits anything without which the record or other document is, to the person’s knowledge, misleading in a material particular.
[Section 8B.57 inserted: No. 47 of 2024 s. 125.]
8B.58. Referral to other public officers or bodies
(1) The Inspector may —
(a) refer any relevant matter to a public officer or body of the State, the Commonwealth, another State or a Territory that has authority or responsibility under a law to investigate, or take action in relation to, the relevant matter or any similar matter; and
(b) give to that officer or body any information, document or property that the Inspector has obtained under this Act in relation to the relevant matter.
relevant matter means a matter —
(a) in relation to which the Inspector performs a function; or
(b) that comes to the Inspector’s knowledge in the course of performing a function of the Inspector; or
(c) that otherwise arises from, or relates to, the performance of a function of the Inspector.
[Section 8B.58 inserted: No. 47 of 2024 s. 125.]
8B.59. Sharing of relevant information between Inspector and Departmental CEO
(1) The Inspector may give to the Departmental CEO any information, document or property —
(a) that the Inspector has obtained under this Act; and
(b) in relation to which the Departmental CEO performs a function.
(2) The Departmental CEO may give to the Inspector any information, document or property —
(a) that the Departmental CEO has obtained under this Act; and
(b) in relation to which the Inspector performs a function.
(3) Nothing in subsection (1) limits the ability of the Inspector to act under subsection 8B.58.
[Section 8B.59 inserted: No. 47 of 2024 s. 125.]
8B.60. Confidentiality for authorised officers
(1) A person who is or has been an authorised officer must not, directly or indirectly, disclose or use information obtained in the administration of this Act.
(2) Subsection (1) does not apply to the disclosure or use of information that is —
(a) already in the public domain; or
(b) statistical or other information that could not reasonably be expected to lead to the identification of any person to whom it relates.
(3) A person does not commit an offence under subsection (1) if the disclosure or use of the information is authorised under subsection (4).
(4) The disclosure or use of information to which subsection (1) applies is authorised if the information is disclosed or used in any of the following circumstances —
(a) for the purpose of, or in connection with the performance of, a function under this Act;
(b) for the purpose of, or in connection with, the Minister performing a function in relation to local government;
(c) as required by law;
(d) for the purpose of, or in connection with, obtaining legal advice or representation;
(e) for the purposes of any legal proceedings under this Act;
(f) under an order of a court or other person or body acting judicially;
(g) with the written consent of the person to whom the information relates;
(h) in circumstances in which the Inspector directs that the disclosure or use is in the public interest;
(i) in circumstances prescribed by the regulations.
(5) A person cannot consent under subsection (4)(g) to the disclosure or use of information if it is an offence under section 8A.36(2) or 8B.47(2) for that person to disclose or use the information.
(6) Nothing in subsection (4) authorises the disclosure or use of information by an authorised officer if that disclosure or use is prohibited under section 8A.36.
[Section 8B.60 inserted: No. 47 of 2024 s. 125.]
8B.61. Inspector may give notice to prevent continuing contravention
(1) If the Inspector considers that a local government, a council member, a CEO, an employee or a person appointed under section 9.10(2) is contravening, or has contravened, a provision of this Act contravention of which is not an offence, the Inspector may give the person a notice (a compliance notice) directing the person —
(a) to cease contravening that provision; or
(b) to not contravene that provision again.
(2) A person who continues to contravene a provision of this Act, or contravenes a provision again, after being given a compliance notice in relation to a contravention of that kind commits an offence.
[Section 8B.61 inserted: No. 47 of 2024 s. 125.]
Part 9 — Miscellaneous provisions
(a) objections and review;
(b) legal proceedings;
(c) regulations and orders,
and various other matters.
[Notes to Pt. 9 amended: No. 55 of 2004 s. 700.]
Division 1 — Objections and review
[Heading amended: No. 55 of 2004 s. 701.]
9.1. When this Division applies
(1) This Division applies when a local government makes a decision under this Act as to whether it will —
(a) grant a person an authorisation under Part 3 or under any local law or regulation that is to operate as if it were a local law; or
(b) renew, vary, or cancel an authorisation that a person has under any of those provisions.
(2) This Division also applies whenever a local government gives a person a notice under section 3.25, and for the purposes of this Division the giving of a notice under that section is to be regarded as the making of a decision.
(3) This Division also applies whenever a local law, or regulation that is to operate as if it were a local law, states that a decision under it is one to which this Division applies and that a person specified in it is an affected person for the purposes of this Division.
[Section 9.1 amended: No. 1 of 1998 s. 23.]
9.2. Terms used
In this Division, unless the contrary intention appears —
affected person, in relation to —
(a) a decision to which this Division applies because of subsection (1) or (3) of section 9.1, means a person referred to in that subsection; and
(b) a decision to which this Division applies because of subsection (2) of section 9.1, means —
(i) a person referred to in that subsection; or
(ii) a person made an affected person by section 9.3;
authorisation means a licence, permit, approval, or other means of authorising a person to do anything, other than one that has been excluded by regulations from being an authorisation for the purposes of this definition;
decision means a decision or notice that, in accordance with section 9.1, causes this Division to apply.
[Section 9.2 amended: No. 64 of 1998 s. 48.]
9.3. Rights of affected person extended to certain owners
If the person to whom a local government gives a notice under section 3.25 is not the owner of the land to which the notice relates, the owner is also an affected person, and a reference in this Division to the affected person includes each of the owner and the person to whom the notice was given.
9.4. Advice of objection and review rights
Whenever a decision is made that the affected person could consider to be unfavourable, the person making it is to ensure that, as soon as practicable after the decision is made, the affected person is given written reasons for the decision and informed of the person’s rights under this Division to object against, and apply for a review of, the decision.
[Section 9.4 amended: No. 55 of 2004 s. 702.]
9.5. Objection may be lodged
(1) An affected person may object to a decision if the person has not applied under this Division for a review of the decision.
(2) The objection is made by preparing it in the prescribed form and lodging it with the local government in the prescribed manner within 28 days after the right of objection arose [i.e. within 28 days after the decision], or within such further time as the local government may allow.
[Section 9.5 amended: No. 55 of 2004 s. 703.]
9.6. Dealing with objection
(1) The objection is to be dealt with by the council of the local government or by a committee authorised by the council to deal with it.
(2) A committee cannot deal with an objection against a decision that it made or a decision that the council made.
(3) The person who made the objection is to be given a reasonable opportunity to make submissions on how to dispose of the objection.
(4) The objection may be disposed of by —
(a) dismissing the objection; or
(b) varying the decision objected to; or
(c) revoking the decision objected to, with or without —
(i) substituting for it another decision; or
(ii) referring the matter, with or without directions, for another decision by a committee or person whose function it is to make such a decision.
(5) The local government is to ensure that the person who made the objection is given notice in writing of how it has been decided to dispose of the objection and the reasons for disposing of it in that way.
9.7. Review
(1) An affected person may apply to the State Administrative Tribunal for a review of a decision if the person —
(a) has not lodged an objection to the decision; or
(b) has lodged an objection but, at the expiration of 35 days after it was lodged, has not been given notice in writing of how it has been decided to dispose of the objection.
(2) If the person lodged an objection and has been given notice in writing of how it has been decided to dispose of the objection, the person may apply to the State Administrative Tribunal for a review of the decision on the objection.
(3) The application is to be made within 42 days after the right to make it arose [i.e. —
within 42 days after the original decision, for an application under subsection (1)(a); or
more than 35 days, but within 77 days, after the objection was lodged, for an application under subsection (1)(b); or
within 42 days after the objection was decided, for an application under subsection (2)].
[Section 9.7 amended: No. 55 of 2004 s. 704.]
[9.8. Deleted: No. 55 of 2004 s. 705.]
9.9. Suspension of effect of decision
(1) If an objection has been lodged against a decision or an application has been made under this Division for a review of the decision, the effect of the decision is suspended until the person or tribunal authorised to deal with the objection or application has decided how to dispose of it unless —
(a) the person or tribunal orders that the suspension be revoked; or
(b) the local government considers that —
(i) there are urgent reasons why the effect of the decision should not be suspended; or
(ii) suspension of the effect of the decision is reasonably likely to endanger the safety of any person, cause damage to property, or to create a serious public nuisance.
(2) A council or committee cannot order, under subsection (1)(a), that the suspension of a decision be revoked unless it considers that —
(a) there are urgent reasons why the effect of the decision should not be suspended; or
(b) suspension of the effect of the decision is reasonably likely to endanger the safety of any person, cause damage to property, or to create a serious public nuisance.
(3) As soon as a local government makes a decision under subsection (1)(b), it is to give the affected person notice in writing stating its reasons.
[Section 9.9 amended: No. 64 of 1998 s. 50; No. 55 of 2004 s. 706.]
Division 2 — Enforcement and legal proceedings
Subdivision 1 — Miscellaneous provisions about enforcement
9.10. Appointment of authorised persons
law means any of the following —
(a) this Act;
(b) the Caravan Parks and Camping Grounds Act 1995;
(c) the Cat Act 2011;
(d) the Cemeteries Act 1986;
(e) the Control of Vehicles (Off‑road Areas) Act 1978;
(f) the Dog Act 1976;
(g) subsidiary legislation made under an Act referred to in any of paragraphs (a) to (f);
(h) a written law prescribed for the purposes of this section;
specified means specified in the instrument of appointment.
(2) The CEO may, in writing, appoint persons or classes of persons to be authorised persons for the purposes of 1 or more specified laws or specified provisions of 1 or more specified laws.
(3) An appointment under subsection (2) is subject to any specified conditions or limitations.
(4) The CEO must give to each person appointed under subsection (2) an identity card that —
(a) on the front of the card, sets out —
(i) the name and official insignia of the local government; and
(ii) the name of the person; and
(iii) a recent photograph of the person;
and
(b) on the back of the card, specifies each law to which the person’s appointment relates.
(5) A person appointed under subsection (2) (the authorised person) must —
(a) carry their identity card at all times when performing functions under a specified law; and
(b) produce their identity card for inspection when required to do so by a person in respect of whom the authorised person has performed or is about to perform a function under a specified law.
(6) A person who, without reasonable excuse, fails to return their identity card to the CEO within 14 days after their appointment ceases to have effect commits an offence.
(a) a fine of $5 000;
[Section 9.10 inserted: No. 16 of 2019 s. 64; amended: No. 47 of 2024 s. 126.]
9.11. Persons found committing breach of Act to give name on demand
(1) An employee of a local government who is authorised by the local government for the purposes of this section may, upon —
(a) finding a person committing; or
(b) on reasonable grounds suspecting a person of having committed,
an offence against this Act, demand from the person the person’s name, place of residence and date of birth.
(2) An employee of a local government who is authorised by the local government for the purposes of this section may, for the purpose of investigating the suspected commission of an offence against this Act, examine a vehicle and demand from the person apparently in charge of it —
(a) the person’s name, place of residence and date of birth; and
(b) the name and address of the owner of the vehicle (as defined in section 9.13(1)); and
(c) whether the vehicle is licensed.
(3) A person from whom information is demanded in accordance with this section commits an offence if the person —
(a) refuses without lawful excuse to give the information; or
(b) gives information that is false or misleading in any material particular.
(4) If, when a person’s name, place of residence and date of birth is demanded under subsection (1), the person commits an offence against subsection (3), the person who made the demand may, without other warrant than this section, arrest the offender.
[Section 9.11 amended: No. 49 of 2004 s. 65; No. 47 of 2024 s. 127.]
9.12. Obstructing person acting under written law, offence
(1) A person who obstructs anything that a local government, or a person acting on behalf of a local government, is trying to do under this Act or any other written law commits an offence.
(2) A person who, without committing an offence against subsection (1), obstructs anything that a person is trying to do under this Act commits an offence against this subsection.
[Section 9.12 amended: No. 47 of 2024 s. 128.]
9.13. Onus of proof in vehicle offences may be shifted
authorised person means a person appointed under section 9.10(2) to be an authorised person for the purposes of this section;
owner, in relation to a vehicle means the person to whom a licence in respect of the vehicle has been granted under the Road Traffic (Vehicles) Act 2012, or, if there is not such a person, the person who owns the vehicle or is entitled to its possession;
prescribed means prescribed by a local law or, if the alleged offence is under a regulation, prescribed by regulations or by a local law;
vehicle offence means an offence against this Act of which the use, driving, parking, standing or leaving of a vehicle is an element.
(2) Where a vehicle offence is alleged to have been committed and the identity of the person committing the alleged offence is not known and cannot immediately be ascertained an authorised person may give the owner of the vehicle a notice under this section.
(3) The notice is to be in the prescribed form and is to contain particulars of the alleged offence and require the owner to identify the person who was the driver or person in charge of the vehicle at the time when the offence is alleged to have been committed.
(4) The notice may be addressed to the owner of the vehicle without naming, or stating the address of, the owner and may be given by —
(a) attaching it to the vehicle or leaving it in or on the vehicle at or about the time that the alleged offence is believed to have been committed; or
(b) giving it to the owner within 28 days after the alleged offence is believed to have been committed.
(5) The notice is to include a short statement of the effect of subsection (6).
(6) Unless, within 28 days after being served with the notice, the owner of the vehicle —
(a) informs the CEO or an employee authorised for the purposes of this paragraph as to the identity and address of the person who was the driver or person in charge of the vehicle at the time the offence is alleged to have been committed; or
(b) satisfies the CEO that the vehicle had been stolen or unlawfully taken, or was being unlawfully used, at the time the offence is alleged to have been committed,
the owner is, in the absence of proof to the contrary, deemed to have committed the offence.
[Section 9.13 amended: No. 8 of 2012 s. 123; No. 16 of 2019 s. 65.]
[9.13A. Deleted: No. 47 of 2024 s. 129.]
9.14. Penalty for offence when not otherwise specified
If the penalty to which a person is liable for committing an offence against this Act, other than an offence against regulations or a local law, is not specified, the penalty is —
(a) a fine of $10 000; and
(b) if the offence is of a continuing nature, a further fine of $500 in respect of each day or part of a day during which the offence has continued.
[Section 9.14 amended: No. 47 of 2024 s. 130.]
Subdivision 2 — Infringement notices issued by authorised persons
[Heading amended: No. 47 of 2024 s. 131.]
9.15. Terms used
authorised person means a person appointed under section 9.10(2) to be an authorised person for the purposes of section 9.16;
local government means the local government that could, or an employee of which could, prosecute for the offence concerned;
owner in relation to a vehicle means the person to whom a licence in respect of the vehicle has been granted under the Road Traffic (Vehicles) Act 2012, or, if there is not such a person, the person who owns the vehicle or is entitled to its possession;
prescribed means prescribed by a local law or, if the alleged offence is against a regulation, prescribed by regulations or by a local law.
[Section 9.15 amended: No. 8 of 2012 s. 124; No. 26 of 2016 s. 18; No. 16 of 2019 s. 66.]
9.16. Notice, giving of to alleged offender
(1) An authorised person who has reason to believe that a person has committed a prescribed offence against a regulation or local law made under this Act may, within 28 days after the alleged offence is believed to have been committed, give an infringement notice to the alleged offender.
(2A) If a person who is given a notice under section 9.13 about an alleged offence involving a vehicle gives information in accordance with section 9.13(6) about another person who was the driver or person in charge of the vehicle at the time of the alleged offence, the period of 28 days for giving that other person an infringement notice runs from the time the information was given.
(2) A local government can only prescribe an offence for the purposes of subsection (1) if a prosecution for the offence could be commenced by the local government or any of its employees and the local government is satisfied that —
(a) commission of the offence would be a relatively minor matter; and
(b) only straightforward issues of law and fact would be involved in determining whether the offence was committed, and the facts in issue would be readily ascertainable.
(3) An infringement notice given before the commencement of the Local Government Amendment Act 2009 section 42(1) and purporting to be under this section is to be taken to have been as valid as if the amendment made by that subsection had been made before the notice was given.
[Section 9.16 amended: No. 17 of 2009 s. 42.]
9.17. Content of notice
(1) An infringement notice is to be in the prescribed form and is to —
(a) contain a description of the alleged offence; and
(b) advise that if the alleged offender does not wish to be prosecuted for the alleged offence in a court, the amount of money specified in the notice as being the modified penalty for the offence may be paid to the CEO of the local government within a period of 28 days after the giving of the notice; and
(c) inform the alleged offender how and where the money may be paid.
(2) In an infringement notice the amount specified as being the modified penalty for the offence referred to in the notice is to be the amount that was the prescribed modified penalty at the time the alleged offence is believed to have been committed.
(3) The modified penalty that may be prescribed for an offence is not to exceed 20% of the maximum fine that could be imposed for that offence by a court.
[Section 9.17 amended: No. 1 of 1998 s. 24; No. 84 of 2004 s. 80; No. 26 of 2016 s. 19; No. 47 of 2024 s. 132.]
9.18. Notice placing onus on vehicle owner
(1) If the alleged offence is one for which a notice under section 9.13 can be given to the owner of a vehicle involved in the commission of the offence, that notice can be included in the same document as an infringement notice to the owner for the alleged offence.
(2) For the purpose of giving the vehicle owner an infringement notice that is with a notice under section 9.13 —
(a) it is a sufficient ground for believing the owner to have committed the alleged offence that the person is the owner; and
(b) the infringement notice may be addressed and given as specified in section 9.13(4).
(3) Where the modified penalty specified in an infringement notice has been paid within 28 days or such further time as is allowed, section 9.13(6) does not have effect to deem the owner to have committed the offence.
(4) The statement required by section 9.13(5) is to include a description of the effect of subsection (3) if an infringement notice is given with a notice under section 9.13.
9.19. Extension of time
The CEO of a local government may, in a particular case, extend the period of 28 days within which the modified penalty may be paid and the extension may be allowed whether or not the period of 28 days has elapsed.
[Section 9.19 amended: No. 26 of 2016 s. 20.]
9.20. Withdrawal of notice
(1) Within one year after the notice was given the CEO of the local government may, whether or not the modified penalty has been paid, withdraw an infringement notice by sending to the alleged offender a notice in the prescribed form stating that the infringement notice has been withdrawn.
(2) Where an infringement notice is withdrawn after the modified penalty has been paid, the amount is to be refunded.
[Section 9.20 amended: No. 26 of 2016 s. 21.]
9.21. Benefit of paying modified penalty
(1) Subsection (2) applies if the modified penalty specified in an infringement notice has been paid within 28 days or such further time as is allowed and the notice has not been withdrawn.
(2) If this subsection applies it prevents the bringing of proceedings and the imposition of penalties to the same extent that they would be prevented if the alleged offender had been convicted by a court of, and punished for, the alleged offence.
(3) Payment of a modified penalty is not to be regarded as an admission for the purposes of any proceedings, whether civil or criminal.
9.22. Application of penalties collected
An amount paid as a modified penalty is, subject to section 9.20(2), to be dealt with as if it were a fine imposed by a court as a penalty for an offence.
[9.23. Deleted: No. 26 of 2016 s. 22.]
Subdivision 2A — Infringement notices issued by authorised inspectorate officer
[Heading inserted: No. 47 of 2024 s. 133.]
9.22A. Terms used
alleged offender means a person suspected of having committed a prescribed offence;
authorised inspectorate officer, in relation to an infringement notice, means an inspectorate officer appointed as an authorised inspectorate officer under regulations made under section 9.22C;
prescribed offence means an offence prescribed under section 9.22B.
[Section 9.22A inserted: No. 47 of 2024 s. 133.]
9.22B. Prescribed offences and modified penalties
(1) Regulations may prescribe an offence under this Act, or under any regulations made under this Act, to be an offence for which an infringement notice may be issued under this Subdivision.
(2) An offence must not be prescribed under subsection (1) if the penalty for the offence is or includes imprisonment.
(3) For each offence prescribed under subsection (1), the regulations must prescribe —
(a) a modified penalty that is applicable in any circumstances in which the offence is committed; or
(b) a modified penalty that is applicable if the offence is committed in circumstances specified in the regulations.
(4) Any modified penalty prescribed under subsection (3) for an offence must not exceed 20% of the maximum fine that could be imposed for that offence by a court.
[Section 9.22B inserted: No. 47 of 2024 s. 133.]
9.22C. Other matters to be prescribed
If, under section 9.22B, regulations prescribe an offence, the regulations must also —
(a) provide for the appointment of authorised inspectorate officers in relation to infringement notices that may be issued under this Subdivision for the prescribed offence; and
(b) provide for the means by which authorised inspectorate officers can show they are authorised to issue infringement notices; and
(c) prescribe the form of infringement notices that may be issued under this Subdivision for the prescribed offence; and
(d) prescribe any other forms required to be prescribed by this Subdivision in relation to infringement notices that may be issued under this Subdivision for the prescribed offence.
[Section 9.22C inserted: No. 47 of 2024 s. 133.]
9.22D. Issuing infringement notices
(1) This section applies if an authorised inspectorate officer has reason to believe that a person has committed a prescribed offence.
(2) The authorised inspectorate officer may, within the prescribed period after the day on which the authorised inspectorate officer believes the alleged offence to have been committed —
(a) issue an infringement notice; and
(b) give the infringement notice to the alleged offender.
[Section 9.22D inserted: No. 47 of 2024 s. 133.]
9.22E. Content of infringement notice
(1) An infringement notice must comply with the Criminal Procedure Act 2004 section 9(1)(b) to (g).
(2) The amount stated in an infringement notice as the modified penalty must be the amount that was the prescribed modified penalty at the time the alleged offence is believed to have been committed.
(3) An infringement notice must not relate to more than 1 alleged offence.
[Section 9.22E inserted: No. 47 of 2024 s. 133.]
9.22F. Extension of time
(1) The Inspector may, in a particular case, extend the period of 28 days within which the modified penalty stated in an infringement notice may be paid.
(2) The extension may be allowed whether or not the period of 28 days has elapsed.
[Section 9.22F inserted: No. 47 of 2024 s. 133.]
9.22G. Withdrawal of notice
(1) The Inspector may withdraw an infringement notice.
(2) To withdraw an infringement notice the Inspector must give the alleged offender a notice in the prescribed form stating that the notice has been withdrawn.
(3) An infringement notice may be withdrawn whether or not the modified penalty has been paid.
(4) If an infringement notice is withdrawn after the modified penalty is paid, the amount paid must be refunded.
[Section 9.22G inserted: No. 47 of 2024 s. 133.]
9.22H. Benefit of paying modified penalty
(1) Subsection (2) applies if the modified penalty specified in an infringement notice has been paid within the period of 28 days or any extension of it and the notice has not been withdrawn.
(2) If this subsection applies, it prevents the bringing of proceedings and the imposition of penalties to the same extent that they would be prevented if the alleged offender had been convicted by a court of, and punished for, the alleged offence.
(3) Payment of a modified penalty is not to be regarded as an admission for the purposes of any proceedings, whether civil or criminal.
[Section 9.22H inserted: No. 47 of 2024 s. 133.]
9.22I. Application of modified penalties
An amount paid as a modified penalty must, subject to section 9.22G(4), be dealt with in accordance with the Sentencing Act 1995 section 60 as if it were a fine imposed for the offence concerned.
[Section 9.22I inserted: No. 47 of 2024 s. 133.]
Subdivision 3 — General provisions about legal proceedings
9.24. Commencing prosecutions
(1) A prosecution for an offence against this Act may be commenced by —
(a) the Departmental CEO or a person authorised by the Departmental CEO to do so; or
(aa) the Inspector or a person authorised by the Inspector to do so; or
(b) a person who is acting in the course of the person’s duties as an employee of a local government or a regional local government; or
(c) a person who is authorised to do so by a local government or a regional local government.
(2) A prosecution for an offence against a local law may be commenced by —
(a) a person who is acting in the course of the person’s duties as an employee of the local government or regional local government that made the local law; or
(b) a person who is authorised to do so by the local government or regional local government that made the local law.
[Section 9.24 inserted: No. 84 of 2004 s. 54; amended: No. 47 of 2024 s. 160; No. 47 of 2024 s. 134.]
9.25. Prosecutions, time limit for
(1) Proceedings for an offence against a provision of this Act listed in the Table may be commenced at any time.
Table
s. 4.46A(4)
s. 4.85(1) and (2)
s. 4.86
s. 4.90(1)
s. 4.91(1)
s. 4.92(1)
s. 5.65(1)
s. 5.67
s. 5.69(4)
s. 5.69A(4)
s. 5.70(2) and (3)
s. 5.71
s. 5.71A(1), (2) and (3)
s. 5.75
s. 5.76
s. 5.78(1)
s. 5.87A(1)
s. 5.87B(1)
s. 5.89
s. 5.93
(2) Proceedings for any other offence against this Act may be commenced within 2 years after the offence was committed, but not later.
[Section 9.25 amended: No. 64 of 1998 s. 34(2); No. 2 of 2016 s. 39; No. 16 of 2019 s. 67; No. 47 of 2024 s. 135.]
9.26. Prosecuting accused whose name unknown
A prosecution notice for an offence under this Act against a person as an owner or occupier of land may, if the person’s name is unknown, refer to the person by the description of “the owner” or “the occupier” of the land, describing it, without further name or description.
[Section 9.26 amended: No. 84 of 2004 s. 80.]
9.27. Civil remedy not affected by proceedings for offence
The liability of a person in civil proceedings is not affected by the commencement of proceedings against the person for an offence or the conviction of the person in proceedings for an offence.
9.28. Interests of public
(1) In any case in which the Attorney General might take proceedings on the relation, or on behalf, or for the benefit of a local government for or with respect to enforcing, securing the observance of, or preventing the breach of a statutory provision administered by the local government, the local government sufficiently represents the interests of the public and may take the proceedings in its own name.
statutory provision administered by the local government means a provision of —
(a) this Act; or
(b) another Act conferring any function on the local government.
9.29. Representing local government in court
proceedings means —
(a) proceedings in the Magistrates Court, the Children’s Court or the State Administrative Tribunal; or
(b) proceedings in respect of a claim against a person who takes the benefit of an Act for the relief of bankrupt debtors.
(2) In proceedings a person who is —
(a) the CEO; or
(b) an employee of the local government appointed in writing signed by the CEO to represent the local government generally or in a particular case,
may represent the local government in all respects as though the person were the local government.
(3) The person representing the local government in the proceedings is entitled to be reimbursed by the local government for any money paid or required to be paid by the person as a result of representing the local government in the proceedings.
[Section 9.29 amended: No. 55 of 2004 s. 707; No. 59 of 2004 s. 141.]
Subdivision 4 — Evidence in legal proceedings
9.30. When this Subdivision applies
This Subdivision applies in relation to any legal proceedings unless a provision is expressed to apply in relation to particular proceedings.
9.31. Terms used
In this Subdivision, unless the contrary intention appears —
authorised employee, in the context of certifying a copy of —
(a) a local law of a local government; or
(b) any other document of or adopted by it,
to be a true copy, means an employee of the local government who is authorised to so certify either by the CEO, or a person acting with CEO’s authority;
certified copy means a copy that is certified by an authorised employee to be a true copy.
9.32. Evidence Act 1906 not excluded
This Subdivision is in addition to the Evidence Act 1906 and not in place of it.
9.33. Presumptions about certificates
It is to be presumed, unless the contrary is proved, that what purports to be a certificate under this Subdivision is the certificate that it purports to be, without proof of the signature or proof that the person signing was a person who could give the certificate.
9.34. Evidence of local laws
(1) Evidence of a local law may be given by tendering —
(a) a copy of the Gazette in which the local law was published; or
(b) a document purporting to be a certified copy of the local law.
(2) It is to be presumed, unless the contrary is proved, that the local law was properly made and that every requirement for it to be made and have effect has been satisfied.
(3) Subsection (2) does not make valid a local law that has been disallowed under section 42 of the Interpretation Act 1984 or that has not been properly made.
9.35. Evidence of text adopted by local laws
(1) Evidence of the text of a model local law, or an amendment to it, may be given by tendering a copy of the Gazette in which the local law or the amendment was published.
(2) Evidence of any other text adopted by a local law may be given by tendering a document purporting to be a certified copy of the text adopted.
9.36. Using Gazette notice as evidence
(1) Evidence that anything was done under this Act may be given by tendering a copy of the Gazette in which notice was published that it was done.
(2) It is to be presumed, unless the contrary is proved, that what was done was done properly and that every requirement for it to be done was satisfied and, if the notice indicates when it was done, it is to be presumed to have been done when indicated by the notice.
9.37. Using meeting minutes as evidence
(1) Evidence of a matter that is recorded in a document purporting to be a certified copy of all or any part of confirmed meeting minutes may be given by tendering the document.
meeting minutes means the minutes of a meeting of a council or committee in which the matter is recorded.
9.38. Evidence of documents coming from local government
Evidence that a document has been given or written by or on behalf of a local government may be given by tendering what purports to be the document and purports to be signed by the mayor or president, the CEO, or any other person authorised to sign it, without proof of the signature or proof that the person signing was a person who could sign the document.
9.39. Proving document given to another party
(1) In proceedings in which a document that was given to a person who is a party to the proceedings has to be proved, the person against whom it is sought to prove the document is to be regarded as having received notice to produce it.
(2) Evidence of the contents of the document may be given by tendering what purports to be a copy of it, bearing what purports to be a certificate of the person who it is claimed was the author of the document stating that the copy is a true copy of the original.
(3) Evidence of the giving of the document may be given by tendering what purports to be a certificate of the person who gave the document stating where, when, and how, the document was given.
9.40. Using copy of rate record as evidence
(1) Evidence of a matter recorded in a document purporting to be a certified copy of all or any part of the rate record may be given by tendering the document.
(2) If evidence of the imposition of rates is given under subsection (1), it is to be presumed, unless the contrary is proved, that the rates were properly imposed and that the person charged with the amount payable in respect of the rate is obliged to pay it.
(3) In subsection (2) —
rate includes a service charge imposed under section 6.38.
9.41. Proving ownership, occupancy, and other things by certificate
(1) Evidence that a person is the owner of land may be given by tendering a document purporting to be —
(a) a certificate signed by the Registrar of Deeds and Transfers or an assistant registrar of deeds and transfers, stating that the person appears from a memorial of registration of a deed, conveyance, or other instrument to be the owner of the land; or
(b) a certificate signed by the Registrar of Titles or an Assistant Registrar stating that the person’s name appears in a register kept under the Transfer of Land Act 1893 as that of the owner of the land.
(2) Evidence that a person is the lessee or occupier, as the case requires, of land may be given by tendering a document purporting to be a certificate signed by the chief executive officer of the Department principally assisting with the administration of the Land Administration Act 1997 or the Mining Act 1978 stating that the person is registered in that Department as the lessee or occupier of the land.
(3) Evidence as to whether anything —
(a) is within a local government’s district; or
(b) belongs to a local government; or
(c) is vested in, or is under the care, control, or management of, a local government,
may be given by tendering a certificate signed by the CEO of the local government, or an employee of the local government who purports to be authorised by the CEO to so sign, and containing a statement as to the matter about which evidence is sought to be given.
[Section 9.41 amended: No. 49 of 2004 s. 74(4); No. 60 of 2006 s. 144(2); No. 47 of 2011 s. 16.]
9.42. Person may be alleged to be owner or occupier of land
A person may be alleged to be, or at a stated time to have been, the owner or the occupier of land and, unless the contrary is proved, the person is to be presumed to be or have been the owner or occupier of the land, as alleged.
9.43. Certificate of returning officer about election
(1) In proceedings relating to an offence against Part 4 or regulations made for the purposes of that Part, evidence that —
(a) an election was duly held; and
(b) a person was a candidate at the election,
may be given by tendering a certificate signed by the returning officer and containing a statement as to the matters about which evidence is sought to be given.
(2) Expressions used in subsection (1) have the meanings they would have if they were in Part 4.
9.44. Spouses and de facto partners presumed to be living with one another
(1) In proceedings under Part 5, Division 6, Subdivision 1, it is to be presumed, unless the contrary is proved, that a person who is a person’s spouse or de facto partner is living with the person.
[Section 9.44 amended: No. 28 of 2003 s. 114.]
9.45. Evidence of authorisation or approval
In proceedings brought under Part 8, Division 4, evidence that any authorisation or approval was given by the Inspector to a person may be given by tendering a document by which the authorisation or approval purports to have been given, without proof of the signature or proof that the person signing was the Inspector.
[Section 9.45 amended: No. 28 of 2006 s. 364; No. 47 of 2024 s. 136.]
9.46. Things may be alleged to be property of local government
(1) Land or anything else, that —
(a) belongs or belonged to a local government; or
(b) is or was vested in or under the control or management of a local government,
may be alleged to be or have been the property of the local government, as the case requires.
(2) The property in —
(a) materials of, and matters and things appurtenant to, public facilities; and
(b) buildings, fences, gates, posts, boards, and stones placed on, and anything else erected on a public facility by a person for the time being having the control or management of the public facility; and
(c) the scrapings, soils, sand, and materials of public thoroughfares and other public places,
that are in, or regarded under this Act as being in, a local government’s district may be alleged to be the property of the local government.
(3) Anything alleged under this section to be the property of the local government is to be presumed to be the property of the local government unless the contrary is proved.
(4) In subsection (2) —
public facility means a public thoroughfare, bridge, culvert, ford, ferry, wharf, jetty, drain, or other public place.
9.47. Proof of certain matters not required
In proceedings under this Act instituted by or under the direction of a local government, until evidence is given to the contrary, proof is not required of —
(a) the persons constituting the council or any committee of it; or
(b) the authority of a local government or any of its employees to prosecute, or the authority of an employee or other person to represent the local government in the proceedings; or
(c) the election, appointment, or employment of the mayor or president, the CEO, or any other employee of the local government; or
(d) the presence of a quorum of the council or a committee when a resolution was passed, an order was made, or anything else was done; or
(e) the fact that a place is within a parking region; or
(f) the establishment or provision of a parking facility.
9.48. Evidence of thoroughfare
(1) Evidence of the existence of a thoroughfare or its alignment or width at a particular time may be given by tendering a document purporting to —
(a) be a copy of an official plan; and
(b) be officially certified to be a true copy and to represent with reasonable accuracy the thoroughfare and its alignment and width.
official plan means a plan which is retained —
(a) under the Land Administration Act 1997; or
(b) under Part IIIB or VIII of the Transfer of Land Act 1893;
officially certified means certified by an officer who purports to be authorised to so certify.
[Section 9.48 amended: No. 49 of 2004 s. 74(1) and (4).]
Division 3 — Documents
9.49A. Execution of documents
(1) A document is duly executed by a local government if —
(a) the common seal of the local government is affixed to it in accordance with subsections (2) and (3); or
(b) it is signed on behalf of the local government by a person or persons authorised under subsection (4) to do so.
(2) The common seal of a local government is not to be affixed to any document except as authorised by the local government.
(3) The common seal of the local government is to be affixed to a document in the presence of —
(a) the mayor or president; and
(b) the CEO,
each of whom is to sign the document to attest that the common seal was so affixed.
(4) A local government may, by resolution, authorise the CEO, another employee or an agent of the local government to sign documents on behalf of the local government, either generally or subject to conditions or restrictions specified in the authorisation.
(5) A document executed by a person under an authority under subsection (4) is not to be regarded as a deed unless the person executes it as a deed and is permitted to do so by the authorisation.
(6) A document purporting to be executed in accordance with this section is to be presumed to be duly executed unless the contrary is shown.
(7) When a document is produced bearing a seal purporting to be the common seal of the local government, it is to be presumed that the seal is the common seal of the local government unless the contrary is shown.
[Section 9.49A inserted: No. 17 of 2009 s. 43; amended: No. 16 of 2019 s. 68.]
9.49B. Contract formalities
(1) Insofar as the formalities of making, varying or discharging a contract are concerned, a person acting under the authority of a local government may make, vary or discharge a contract in the name of or on behalf of the local government in the same manner as if that contract was made, varied or discharged by a natural person.
(2) The making, variation or discharge of a contract in accordance with subsection (1) is effectual in law and binds the local government concerned and other parties to the contract.
(3) Subsection (1) does not prevent a local government from making, varying or discharging a contract under its common seal.
[Section 9.49B inserted: No. 17 of 2009 s. 43.]
9.49. Documents, how authenticated
A document, is, unless this Act requires otherwise, sufficiently authenticated by a local government without its common seal if signed by the CEO or an employee of the local government who purports to be authorised by the CEO to so sign.
9.50. Giving documents to persons, generally
Unless otherwise stated in this Act, a document may be given to a person in any of the ways provided for by sections 75 and 76 of the Interpretation Act 1984.
9.51. Giving documents to local government
Unless otherwise stated in this Act, a document may be given to a local government by —
(a) giving it personally to an employee of the local government at its office; or
(b) sending it by post to the local government at its postal address.
[Section 9.51 modified: SL 2020/57 1M.]
9.52. Giving documents in difficult cases
(1) This section only applies if it is not reasonably practicable to give the document in any of the ways provided for by sections 75 and 76 of the Interpretation Act 1984, and this Act does not otherwise state how the document is to be given.
(2) If a document is to be given to a person because the person is the owner of land, the document may be given to the person by addressing it to the owner and giving it under the Interpretation Act 1984 to the occupier, if any, of the land.
(3) If a document is to be given to a person because the person is the owner or the occupier of land, the document may be given to the person by addressing it to the person and affixing it to a conspicuous part of the land.
(4) If a document is to be given to a person because the person is the owner of anything other than land, the document may be given to the person by addressing it to the person and affixing it conspicuously to that thing.
9.53. Other provisions about giving documents
(1) A document given to a person because the person is the owner or the occupier of any land or thing may be addressed to the person by the description of “the owner” or “the occupier” of the relevant land or thing, naming it, without further name or description.
(2) If there are more owners or occupiers than one a document is sufficiently given to all of them if it is given to one of them, and is addressed to that one with the addition of the words “and others” or “and another”, as the case requires.
(3) Failure to properly give a document to one person does not affect whether or not it was properly given to another person.
9.54. Defects in documents
A document is not ineffective, nor is it to be regarded as having been not properly given, only because of an error, misdescription, or irregularity in the document or the way it is addressed that is not likely to mislead or does not in fact mislead.
9.55. Effect of document on persons deriving title
(1) A document required under this Act to be given to an owner or occupier of land —
(a) is, if it has been given to an owner or occupier of the land, binding on subsequent owners or occupiers to the same extent as if it had been given to the subsequent owners or occupiers; and
(b) is binding on persons deriving title, whether beneficially or in a fiduciary capacity, by, from, or under, the owner or occupier served.
(2) Subsection (1) does not apply to a rate notice for a service charge imposed on an occupier under section 6.38(1)(b).
Division 4 — Protection from liability
9.56. Certain persons protected from liability for wrongdoing
(1) A person who is —
(a) a member of the council, or of a committee of the council, of a local government; or
(b) an employee of a local government; or
(c) a person appointed or engaged by a local government to perform functions of a prescribed office or functions of a prescribed class,
is a protected person for the purposes of this section.
(2) An action in tort does not lie against a protected person for anything that the person has, in good faith, done in the performance or purported performance of a function under this Act or under any other written law.
(3) The protection given by this section applies even though the thing done in the performance or purported performance of a function under this Act or under any other written law may have been capable of being done whether or not this Act or that law had been enacted.
(4) This section does not relieve the local government of any liability that it might have for the doing of anything by a protected person.
(a) a reference to the doing of anything includes a reference to the omission to do anything;
(b) a reference to the doing of anything by a protected person in the performance or purported performance of a function under any written law other than this Act is limited to a reference to the doing of anything by that person in a capacity described in subsection (1)(a), (b) or (c), as the case may be.
9.57. Local government protected from certain liability
(1) A person cannot recover damages against a local government in respect of loss or injury sustained either to that person or to another person or to property by reason of a mishap upon or while using a portion of a thoroughfare, which portion has not been interfered with by the local government, merely because some other portion of that thoroughfare, whether distant laterally or longitudinally, has been taken over or improved by the local government.
(2) Subsection (1) does not relieve a local government from liability where the mishap is caused by the negligence of the local government in the execution of works then in progress, or which have been completed by the local government in a thoroughfare.
9.57A. Local government protected from liability for defamation: council proceedings on website
council proceedings means proceedings at a meeting of the council or a committee of the council;
matter has the meaning given in the Defamation Act 2005 section 4.
(2) A local government is not liable to an action for defamation in relation to matter published on its official website as part of a broadcast, audio recording, or video recording, of council proceedings.
[Section 9.57A inserted: No. 16 of 2019 s. 69.]
Division 5 — Associations of local government
9.58. Constitution of associations of local government
(1) The Western Australian Local Government Association (“WALGA”) is constituted as a body corporate with perpetual succession and a common seal.
(2) Proceedings may be taken by or against WALGA in its corporate name.
(3) WALGA has the objects and functions set out in its constitution.
(4) Subject to subsection (5), WALGA may, at any time, amend its constitution and, whenever it does, it is to forthwith —
(a) give to the Minister; and
(b) lodge with the Commissioner as defined in the Fair Trading Act 2010 section 6,
a copy of the amendment to the constitution.
(5) WALGA is not to change the objects for which it is constituted without the approval of the Minister.
(6) Without limiting the generality of subsection (3), WALGA may —
(a) of its own motion, make representations and submissions to the Minister on any matter or thing relating to or affecting its members; and
(b) with the approval of the affected members, arrange contracts of insurance on behalf of all or any of its members for any purpose.
(7) WALGA may do all things necessary or convenient to be done to enable it to achieve its objects and perform its functions.
[Section 9.58 amended: No. 20 of 2003 s. 34; No. 49 of 2004 s. 10; No. 28 of 2006 s. 362; No. 58 of 2010 s. 182.]
Division 6 — Regulations, directions and orders
9.59. General regulations
(1) The Governor may make regulations prescribing all matters that are required or permitted by this Act to be prescribed, or are necessary or convenient to be prescribed for giving effect to the purposes of this Act.
(2) Without limiting subsection (1), regulations may be made as to —
(a) the selection, employment and functions of employees of local governments; and
(b) the keeping of documents and records by a local government; and
(c) the procedures to be followed by a local government or any other person in carrying out functions under this Act.
(3) Regulations may require —
(a) a power conferred on a local government by regulations to be exercised by or in accordance with a decision of a majority of the council of the kind specified in the regulations; or
(b) a power conferred by regulations on any other body to be exercised by or in accordance with a decision of a majority of the body of the kind specified in the regulations.
[Section 9.59 amended: No. 49 of 2004 s. 66.]
9.60. Regulations that operate as local laws
(1) The Governor may make regulations that are to operate as if they were local laws for each district to which they apply.
(2) Regulations under this section may deal with any matter specified in Schedule 9.1.
(3) Regulations under this section, other than those that only repeal or amend other regulations under this section, are to contain a statement to the effect that they apply as if they were local laws.
(4) A local government is to administer any regulation made under this section to the extent that it relates to any place where the local government may perform functions, as if the regulation were a local law.
(5) Unless the contrary intention appears, a reference to an offence against a local law includes a reference to an offence against a regulation made under this section.
(6) The existence of a power to make regulations under this section in respect of a matter does not imply that a local law cannot be made in respect of the matter.
9.61. Provisions about regulations
Regulations, whether under section 9.59 or 9.60, may —
(a) adopt any text that could be adopted by a local law;
(b) provide that contravention of a provision of regulations is an offence, and provide for the offence to be punishable on conviction by the imposition of a fine not exceeding $10 000;
(c) make a person who commits an offence of a continuing nature liable to a further fine not exceeding $500 in respect of each day or part of a day during which the offence has continued;
(d) provide for the imposition of a minimum fine for the offence;
(e) relate the level of the fine to —
(i) the circumstances or extent of the offence;
(ii) whether the offender has committed previous offences and, if so, the number of previous offences that the offender has committed;
(f) prescribe the method and the means by which any fines imposed are to be paid and collected, or recovered;
(g) contain provisions that are necessary or convenient for dealing with matters concerning the transition from the Local Government (Miscellaneous Provisions) Act 1960 sections 375, 377, 378, 379 and 380, before they were deleted by the Building Act 2011 section 153(2), to the provisions of this Act, including the regulations.
[Section 9.61 amended: No. 24 of 2011 s. 166(3); No. 47 of 2024 s. 138.]
9.61A. Further provisions about regulations
(1) Any power to make regulations may be exercised in either or both of the following ways —
(a) it may be exercised in relation to —
(i) only certain local governments or districts; or
(ii) only a certain class of local government or district;
(b) it may be exercised so as to make different provisions for —
(i) different local governments or districts; or
(ii) different classes of local government or district.
(2) For the purposes of subsection (1)(a) and (b), regulations may confer a power on the Minister, by order, to specify, or to make provision for determining, the local governments or districts, or class of local government or district, to which a provision of regulations applies.
(3) Either of the following may (without limitation) adopt or otherwise apply classifications of local governments or districts used in a determination made under the Salaries and Allowances Act 1975 section 7A or 7B —
(a) regulations made as referred to in subsection (1)(a) or (b);
(b) an order made in the exercise of a power conferred under subsection (2).
(4) This section does not limit the Interpretation Act 1984 section 43(7) or (8).
[Section 9.61A inserted: No. 11 of 2023 s. 86.]
9.62. Governor may give directions as consequence of making order
(1) Where under this Act the Governor makes an order, the Governor may, either then or subsequently, by order, give any directions the Governor thinks necessary to give effect to the order.
(2) Without limiting the operation of subsection (1), directions given under that subsection may modify the operation of this Act.
9.63. Minister may give directions to resolve disputes between local governments
(1) If a dispute arises between 2 or more local governments and this Act does not provide any other means of resolving the dispute, the local governments may refer the dispute to the Minister for resolution.
(2) The Minister is to hear and determine the dispute as the Minister thinks fit, and may give such directions to the local governments as the Minister considers appropriate for disposing of the matter in dispute.
(3) The decision of the Minister is final and effect is to be given to any direction given by the Minister under this section.
9.63A. Minister may grant exemptions from compliance with Act
emergency means —
(a) the occurrence, or imminent occurrence, of an event, situation or condition that is a hazard under the definition of that term in the Emergency Management Act 2005 section 3; or
(b) a public health emergency as defined in the Public Health Act 2016 section 4(1);
excluded provision means —
(a) Part 2 or a provision of that Part; or
(b) Schedule 2.1, 2.2, 2.3, 2.4 or 2.5 or a provision of any of those Schedules; or
(c) Part 3 Division 2 or a provision of that Division; or
(d) Part 4 or a provision of that Part; or
(da) Part 8, 8A or 8B or a provision of any of those Parts;
(e) Schedule 4.1A, 4.1B, 4.1 or 4.2 or a provision of any of those Schedules; or
(f) an order or regulations, or a provision of an order or regulations, if the order or regulations or provision is made under, or for the purposes of, anything referred to in paragraphs (a) to (e).
(2) A local government may apply to the Minister for an exemption under this section if the local government is satisfied that the exemption is reasonably necessary for either of the following purposes —
(a) to enable the local government to respond urgently to an emergency;
(b) to enable the local government to respond, on a temporary basis, to unusual circumstances.
(3) An exemption under this section is an exemption from a provision of this Act, or a requirement of a provision of this Act, as specified in the local government’s application.
References to this Act include any subsidiary legislation made under this Act — see the Interpretation Act 1984 section 46.
(4) If the Minister receives an application, the Minister may, by written notice to the local government, grant the exemption if the Minister is satisfied —
(a) that the exemption is not from an excluded provision or a requirement of an excluded provision; and
(b) that the exemption is reasonably necessary to enable the local government —
(i) to respond urgently to an emergency; or
(ii) to respond, on a temporary basis, to unusual circumstances;
and
(c) in the case of an exemption for an emergency — that the application was made as soon as was reasonably practicable; and
(d) that the exemption will not undermine good government in the local government’s district; and
(e) that the exemption is in the public interest.
(5) The exemption must be granted for a specified period.
(6) In the case of an exemption for an emergency, the specified period may be a period that began, or that began and ended, before the exemption is granted.
(7) The exemption may be expressed to apply —
(a) only for specified activities; and
(b) subject to any other type of limitation.
(8) The exemption may be granted subject to specified conditions.
(9) If the exemption is granted subject to a specified condition, the exemption has no effect at any time when the condition is being contravened.
(10) The local government must give local public notice of the exemption.
[Section 9.63A inserted: No. 11 of 2023 s. 87; amended: No. 11 of 2023 s. 88; No. 47 of 2024 s. 139.]
9.64. Governor may rectify omissions and irregularities
(1) This section applies if through an impediment or accidental omission anything required to be done by or under this Act is not done, or is not done in the prescribed time, manner or form.
(2) If this section applies, the Governor for the purpose of giving effect to the intention and purposes of this Act, may by order take such measures as are necessary for rectifying the omission or removing the impediment.
(3) The order may validate anything which has been done otherwise than in the prescribed time, manner, or form.
9.65. Orders made by Governor or Minister
(1) An order made under this Act by the Governor or the Minister is required to be published in the Gazette and takes effect on the day of publication or, if another day is specified in the order, on the day specified.
(2) Power given by this Act to the Governor or the Minister to make an order includes power from time to time —
(a) to revoke or cancel the order wholly or in part, with or without substituting another order; and
(b) to otherwise vary the order,
unless the terms used in conferring that power, or the nature of the subject matter, or the objects, of that power indicate that it is intended to be exercised finally and irrevocably in the first instance.
(3) An order which purports to be made under this Act, and which is within the powers conferred on the Governor or the Minister by this Act, is not invalid because of non‑compliance with a matter required by this Act to be complied with before making the order.
Division 7 — Other miscellaneous provisions
9.65A. Minister or Departmental CEO may require information
(1) The Minister or Departmental CEO may in a written notice require a local government, a member of a council, a CEO or an employee to provide information of a kind specified in the notice concerning the local government or its operations or affairs.
(2) A person who fails to comply with a notice under subsection (1) commits an offence.
[Section 9.65A inserted: No. 47 of 2024 s. 140.]
9.66. Delegation by Minister
(1) The Minister may, in writing and either generally or as otherwise provided by the instrument of delegation, delegate to the Departmental CEO or any other person any of the Minister’s functions under this Act that is prescribed to be delegable.
(2) The power of delegation given by this section cannot be prescribed to be delegable.
[Section 9.66 amended: No. 28 of 2006 s. 364.]
9.67. Delegation by Departmental CEO
(1) The Departmental CEO may, in writing and either generally or as otherwise provided by the instrument of delegation, delegate to any person any of the Departmental CEO’s functions under this Act that is prescribed to be delegable.
(2) The power of delegation given by this section cannot be prescribed to be delegable.
[Section 9.67 amended: No. 28 of 2006 s. 363 and 364.]
9.68. Local government to be notified of disposal of land
(1) When a person, whether as principal or agent, sells or otherwise disposes of rateable land in the district of a local government, the principal or the agent, is required to give to the local government, within 21 days after the sale or disposal, written notice of the sale or disposal.
(2) The notice is to include a plan or description of the land and the name and address of the person to whom the person giving the notice disposed of the land.
(3) If the sale or disposal is effected by an agent, the principal is not required to give notice under subsection (1) if the agent has done so, but the principal is to ensure that the notice is given.
(4) A person who does not comply with the requirements of this section commits an offence.
(a) a fine of $5 000;
(5) If the notice is not given as required by this section, the local government may recover rates accruing until the required notice is given as if the sale or disposal had not taken place but this subsection does not affect —
(a) the principal’s liability to be punished for an offence against this section; or
(b) the liability of the principal or of the new owner for rates under section 6.55.
[Section 9.68 amended: No. 47 of 2024 s. 141.]
9.69. Land descriptions
authorised land officer has the same meaning as in the Land Administration Act 1997;
Authority means the Western Australian Land Information Authority established by the Land Information Authority Act 2006 section 5;
judicial proceedings means proceedings in any court or before any person having by law or the consent of parties authority to hear, receive and examine evidence.
(2) For the purposes of this Act a description of land may be made by reference to a plan or diagram relating to the land that is deposited with the Authority and certified under the hand of an authorised land officer.
(3) A plan or diagram referred to in subsection (2) is to be open to public inspection on payment of the fee, if any, prescribed under the Transfer of Land Act 1893.
(4) In judicial proceedings a document certified under the hand of an authorised land officer to be a copy of all or part of an original plan or diagram deposited with the Authority is admissible in evidence for any purpose for which the original would be admissible, and is to be given the same weight as if it were the original.
[Section 9.69 amended: No. 49 of 2004 s. 74(2) and (3); No. 60 of 2006 s. 144(3).]
9.69AA. Good practice guidelines
(1) The Minister may —
(a) issue guidelines setting out what the Minister regards as good practices that local governments, CEOs and employees should adopt in performing 1 or more of their functions; and
(b) amend or revoke any guidelines issued under paragraph (a).
(2) The Departmental CEO must ensure that up‑to‑date versions of all guidelines are publicly available on a website maintained by or on behalf of the Department.
(3) Guidelines issued under this section are not subsidiary legislation for the purposes of the Interpretation Act 1984.
(4) If there is a conflict or inconsistency between a provision of this Act and a provision of guidelines issued under this section, the provision of this Act prevails.
[Section 9.69AA inserted: No. 47 of 2024 s. 143.]
9.69A. Notification under Corruption, Crime and Misconduct Act 2003
Nothing in Part 5, 8, 8A or 8B affects the duty of a person to notify as required by the Corruption, Crime and Misconduct Act 2003 section 28 or 45H.
[Section 9.69A inserted: No. 1 of 2007 s. 12; amended: No. 17 of 2009 s. 44; No. 35 of 2014 s. 35; No. 47 of 2024 s. 142.]
9.69B. DAP functions
DAP function means a function under DAP regulations that relates to prescribed development applications;
DAP regulations means regulations made under the Planning and Development Act 2005 Part 11A;
prescribed development application has the meaning given in the Planning and Development Act 2005 section 171A(1).
(2) Regulations under section 9.59 may —
(a) provide that a DAP function of a local government —
(i) must be performed for and on behalf of the local government by the CEO or employees authorised by the CEO; and
(ii) cannot be performed by the local government in any other manner (for example, by the council or a committee of the council);
and
(b) otherwise deal with or regulate —
(i) the performance of a DAP function of a local government as referred to in paragraph (a); and
(ii) authorisations referred to in paragraph (a)(i); and
(iii) supplementary or incidental matters.
(3) Regulations made for the purposes of subsection (2) have effect despite any other provision of this Act.
[Section 9.69B inserted: No. 47 of 2024 s. 144.]
Division 8 — Amendments to 1960 Act and transitional provisions
[9.70. Omitted under the Reprints Act 1984 s. 7(4)(e) 2.]
9.71. Transitional provisions
(1) Schedule 9.3 has effect for the purpose of the transition to this Act from the provisions it amends.
(2) If there is no sufficient provision in this Act for dealing with a matter that needs to be dealt with for the purpose mentioned in subsection (1), regulations may prescribe all matters that are required or necessary or convenient to be prescribed for dealing with the matter.
(3) Regulations under subsection (2) may provide that specific provisions of this Act or the Local Government (Miscellaneous Provisions) Act 1960 as in force on or after the commencement of this Act, or of subsidiary legislation made under either this Act or that Act —
(a) do not apply; or
(b) apply with or without specified modifications,
to or in relation to any matter or thing.
(4) Regulations under subsection (2) may have effect before the day on which they are published in the Gazette.
(5) To the extent that a regulation under subsection (2) has effect before the day of its publication in the Gazette, it does not —
(a) affect in a manner prejudicial to any person (other than the State or a local government), the rights of that person existing before the day of its publication; or
(b) impose liabilities on any person (other than the State or a local government) in respect of anything done or omitted to be done before the day of its publication.
(6) Schedule 9.3 also has effect for the purpose of the transition to —
(a) this Act as enacted after the coming into operation of an enactment amending it; from
(b) this Act as enacted before the coming into operation of that enactment.
[Section 9.71 amended: No. 66 of 2006 s. 13.]
[Part 10 (s. 10.1‑10.4) deleted: No. 17 of 2020 s. 5.]
Schedule 2.1 — Provisions about creating, changing the boundaries of, and abolishing districts
[Section 2.1(2)]
affected electors, in relation to a proposal, means —
(a) electors whose eligibility as electors comes from residence, or ownership or occupation of property, in the area directly affected by the proposal; or
(b) where an area of the State is not within or is not declared to be a district, people who could be electors if it were because of residence, or ownership or occupation of property, in the area directly affected by the proposal;
affected local government means a local government directly affected by a proposal;
notice means notice given or published in such manner as the Advisory Board considers appropriate in the circumstances;
proposal means a proposal made under clause 2 that an order be made as to any or all of the matters referred to in section 2.1.
Making a proposal
(1) A proposal may be made to the Advisory Board by —
(a) the Minister; or
(b) an affected local government; or
(c) 2 or more affected local governments, jointly; or
(d) affected electors who —
(i) are at least 250 in number; or
(ii) are at least 10% of the total number of affected electors.
(2) A proposal is to —
(a) set out clearly the nature of the proposal, the reasons for making the proposal and the effects of the proposal on local governments; and
(b) be accompanied by a plan illustrating any proposed changes to the boundaries of a district; and
(c) comply with any regulations about proposals.
[Clause 2 amended: No. 49 of 2004 s. 67(2).]
Dealing with proposals
(1) The Advisory Board is to consider any proposal.
(2) The Advisory Board may, in a written report to the Minister, recommend* that the Minister reject a proposal if, in the Board’s opinion —
(a) the proposal is substantially similar in effect to a proposal on which the Board has made a recommendation to the Minister within the period of 2 years immediately before the proposal is made; or
(aa) where the proposal was made by affected electors under clause 2(1)(d), that the majority of those electors no longer support the proposal; or
(b) the proposal is frivolous or otherwise not in the interests of good government.
(3) If, in the Advisory Board’s opinion, the proposal is —
the Board may, in a written report to the Minister, recommend* that the Minister reject the proposal or that an order be made in accordance with the proposal.
(4) Unless it makes a recommendation under subclause (2) or (3), the Advisory Board is to formally inquire into the proposal.
[Clause 3 amended: No. 64 of 1998 s. 52(2); No. 49 of 2004 s. 67(3).]
Notice of inquiry
(1) Where a formal inquiry is required the Advisory Board is to give —
(a) notice to affected local governments, affected electors and the other electors of districts directly affected by the proposal; and
(b) a report to the Minister.
(2) The notice and report under subclause (1) are to —
(a) advise that there will be a formal inquiry into the proposal; and
(b) set out details of the inquiry and its proposed scope; and
(c) advise that submissions may be made to the Board not later than 6 weeks after the date the notice is first given about —
(i) the proposal; or
(ii) the scope of the inquiry.
(3) If, after considering submissions made under subclause (2)(c), the Advisory Board decides* that the scope of the formal inquiry is to be significantly different from that set out in the notice and report under subclause (1), it is to give —
(a) another notice to affected local governments, affected electors and the other electors of districts directly affected by the proposal; and
(b) another report to the Minister.
(4) The notice and report under subclause (3) are to —
(a) set out the revised scope of the inquiry; and
(b) advise that further submissions about the proposal, or submissions about matters relevant to the revised scope of the inquiry, may be made to the Board within the time set out in the notice.
Conduct of inquiry
(1) A formal inquiry is to be carried out, and any hearing for the purposes of the inquiry is to be conducted, in a way that makes it as easy as possible for interested parties to participate fully.
(2) In carrying out a formal inquiry the Advisory Board is to consider submissions made to it under clause 4(2)(c) and (4)(b) and have regard, where applicable, to —
(a) community of interests; and
(b) physical and topographic features; and
(c) demographic trends; and
(d) economic factors; and
(e) the history of the area; and
(f) transport and communication; and
(g) matters affecting the viability of local governments; and
(h) the effective delivery of local government services,
but this does not limit the matters that it may take into consideration.
Recommendation by Advisory Board
(1) After formally inquiring into a proposal, the Advisory Board, in a written report to the Minister, is to recommend* —
(a) that the Minister reject the proposal; or
(b) that an order be made in accordance with the proposal; or
(c) if it thinks fit after complying with subclause (2), the making of some other order that may be made under section 2.1.
(2) The Advisory Board is not to recommend to the Minister the making of an order that is significantly different from the proposal into which it formally inquired unless the Board has —
(a) given* notice to affected local governments, affected electors and the other electors of districts directly affected by the recommendation of its intention to do so; and
(b) afforded adequate opportunity for submissions to be made about the intended order; and
(c) considered any submissions made.
Minister may require poll of electors
In order to assist in deciding whether or not to accept a recommendation of the Advisory Board made under clause 6, the Minister may require that the Board’s recommendation be put to a poll of the electors of districts directly affected by the recommendation.
Electors may demand poll on recommended amalgamation
(1) Where the Advisory Board recommends to the Minister the making of an order to abolish 2 or more districts (the districts) and amalgamate them into one or more districts, the Board is to give notice to affected local governments, affected electors and the other electors of districts directly affected by the recommendation about the recommendation.
(2) The notice to affected electors has to notify them of their right to request a poll about the recommendation under subclause (3).
(3) If, within one month after the notice is given, the Minister receives a request made in accordance with regulations and signed by at least 250, or at least 10%, of the electors of one of the districts asking for the recommendation to be put to a poll of electors of that district, the Minister is to require that the Board’s recommendation be put to a poll accordingly.
(4) This clause does not limit the Minister’s power under clause 7 to require a recommendation to be put to a poll in any case.
[Clause 8 amended: No. 64 of 1998 s. 52(3).]
Procedure for holding poll
(1) Where, under clause 7 or 8, the Minister requires that a recommendation be put to a poll —
(a) the Advisory Board is to —
(i) determine the question or questions to be answered by electors; and
(ii) prepare a summary of the case for each way of answering the question or questions;
and
(b) any local government directed by the Minister to do so is to —
(i) in accordance with directions by the Minister, make the summary available to the electors before the poll is conducted; and
(ii) subject to subclause (2), declare* the Electoral Commissioner, or a person approved by the Electoral Commissioner, to be responsible for the conduct of the poll under Part 4, and return the results to the Minister.
(2) Before making a declaration under subclause (1)(b)(ii), the local government is to obtain the written agreement of the Electoral Commissioner.
[Clause 9 amended: No. 49 of 2004 s. 67(4) and (5).]
Minister may accept or reject recommendation
(1) Subject to subclause (2), the Minister may accept or reject a recommendation of the Advisory Board made under clause 3 or 6.
(2) If at a poll held as required by clause 8 —
(a) at least 50% of the electors of one of the districts vote; and
(b) of those electors of that district who vote, a majority vote against the recommendation,
the Minister is to reject the recommendation.
(3) If the recommendation is that an order be made and it is accepted, the Minister can make an appropriate recommendation to the Governor under section 2.1.
10A. Recommendations regarding names, wards and representation
(1) The Advisory Board may —
(a) when it makes its recommendations under clause 3 or 6; or
(b) after the Minister has accepted its recommendations under clause 10,
in a written report to the Minister, recommend the making of an order to do any of the things referred to in section 2.2(1), 2.3(1) or (2) or 2.18(1) or (3) that the Board considers appropriate.
(2) In making its recommendations under subclause (1) the Advisory Board —
(a) may consult with the public and interested parties to such extent as it considers appropriate; and
(b) is to take into account the matters referred to in clause 8(c) to (g) of Schedule 2.2 so far as they are applicable.
[Clause 10A inserted: No. 64 of 1998 s. 52(4).]
Transitional arrangements for orders about districts
(1) Regulations may provide for matters to give effect to orders made under section 2.1 including —
(a) the vesting, transfer, assumption or adjustment of property, rights and liabilities of a local government;
(b) the extinguishment of rights of a local government;
(c) the winding up of the affairs of a local government;
(d) the continuation of actions and other proceedings brought by or against a local government before the taking effect of an order under section 2.1;
(e) the bringing of actions and other proceedings that could have been brought by or against a local government before the taking effect of an order under section 2.1;
(f) if the effect of an order under section 2.1 is to unite 2 or more districts, the determination of the persons who are to be the first mayor or president, and deputy mayor or deputy president, of the new local government;
(g) the continuation of any act, matter or thing being done under another written law by, or involving, a local government.
(2) Subject to regulations referred to in subclause (1), where an order is made under section 2.1 any local governments affected by the order (including any new local government created as a result of the order) are to negotiate as to any adjustment or transfer between them of property, rights and liabilities.
(3) Where an order is made under section 2.1 the Governor may, by order under section 9.62(1), give directions as to any of the matters set out in subclause (1) if, and to the extent that, those matters are not resolved by regulations referred to in that subclause or by negotiation under subclause (2).
(4) A contract of employment that a person has with a local government is not to be terminated or varied as a result (wholly or partly) of an order under section 2.1 so as to make it less favourable to that person unless —
(a) compensation acceptable to the person is made; or
(b) a period of at least 2 years has elapsed since the order had effect.
(5A) The value of compensation required to be made under subclause (4)(a) to a person whose contract of employment with a local government is terminated or varied is not to exceed in total —
(a) in the case of a person whose contract of employment is terminated —
(i) if the person’s employment is governed by a written contract in accordance with section 5.39, the maximum amount of money to which the person is entitled, under that contract, if the contract is terminated before the expiry date; or
(ii) in any other case, the value of the person’s final annual remuneration, as calculated in accordance with regulations made for the purposes of section 5.50(3);
or
(b) in the case of a person whose contract of employment is varied, the lesser of —
(i) the amount that the person would have been entitled to if the person’s contract of employment had been terminated before the expiry date; or
(ii) the value of the person’s annual remuneration for the year ending on the date of the variation, calculated in accordance with regulations made for the purposes of section 5.50(3) as if the person’s contract of employment had terminated on that date.
(5B) For the purposes of subclause (5A), the total value of the compensation required to be made to a person includes all amounts to which the person is entitled under a contract of employment or award relating to the person as an employee of the local government.
(5) The rights and entitlements of a person whose contract of employment is transferred from one local government to another, whether arising under the contract or by reason of it, are to be no less favourable to that person after the transfer than they would have been had the person’s employment been continuous with the first local government.
(6) If land ceases to be in a particular district as a result of an order under section 2.1, any written law that would have applied in respect of it if the order had not been made continues to apply in respect of the land to the extent that its continued application would be consistent with —
(a) any written law made after the order was made; and
(b) any order made by the Governor under subclause (8).
(7) Regulations may make provision as to whether or not, or the modifications subject to which, a written law continues to apply in respect of land under subclause (6).
(8) The Governor may, in a particular case, by order, vary the effect of subclause (6) and regulations made in accordance with subclause (7).
[Clause 11 amended: No. 64 of 1998 s. 52(5); No. 26 of 2016 s. 23.]
Registration of documents
relevant official means —
(a) the Registrar of Titles under the Transfer of Land Act 1893; or
(b) the Registrar of Deeds and Transfers under the Registration of Deeds Act 1856; or
(c) the Minister administering the Land Administration Act 1997; or
(d) any other person authorised by a written law to record and give effect to the registration of documents relating to transactions affecting any estate or interest in land or any other property.
(2) The relevant officials are —
(a) to take notice of an order of the kind referred to in clause 11(3) relating to property, rights and liabilities; and
(b) to record and register in the appropriate manner the documents necessary to show the effect of the order as it relates to those matters.
[Clause 12 inserted: No. 26 of 2016 s. 24.]
Schedule 2.2 — Provisions about names, wards and representation
[Section 2.2(3)]
[Heading amended: No. 64 of 1998 s. 53.]
affected electors, in relation to a submission, means electors whose eligibility as electors comes from residence, or ownership or occupation of property, in the area directly affected by the submission;
review means a review required by clause 4(4) or 6 or authorised by clause 5(a);
submission means a submission under clause 3 that an order be made to do any or all of the things referred to in section 2.2(1), 2.3(3) or 2.18(3).
Advisory Board to make recommendations relating to new district
(1) When a local government is newly established, the Advisory Board —
(a) at the direction of the Minister; or
(b) after receiving a report made by a commissioner appointed under section 2.6(4) after carrying out a review,
is, in a written report to the Minister, to recommend the making of an order to do all or any of the things referred to in section 2.2(1)(a), 2.3(2) or 2.18(1).
(2) In making its recommendations under subclause (1) the Advisory Board is to take into account the matters referred to in clause 8(c) to (g) so far as they are applicable.
Who may make submissions about ward changes etc.
(1) A submission may be made to a local government by affected electors who —
(a) are at least 250 in number; or
(b) are at least 10% of the total number of affected electors.
(2) A submission is to comply with any regulations about the making of submissions.
(3) A submission that an order be made to do any or all of the things referred to in section 2.2(1) cannot be made to a local government if the district is a district which, under regulations made for the purposes of section 2.2A(1)(a), cannot be divided into wards.
[Clause 3 amended: No. 11 of 2023 s. 89.]
Dealing with submissions
(1) The local government is to consider any submission made under clause 3.
(2) If, in the council’s opinion, a submission is —
the local government may either propose* to the Advisory Board that the submission be rejected or deal with it under clause 5(b).
(3) If, in the council’s opinion —
(a) a submission is substantially similar in effect to a submission about which the local government has made a decision (whether an approval or otherwise) within the period of 2 years immediately before the submission is made; or
(b) the majority of effected electors who made the submission no longer support the submission,
the local government may reject the submission.
(4) Unless, under subclause (2) or (3), the local government rejects, or proposes to reject, the submission or decides to deal with it under clause 5(b), the local government is to carry out a review of whether or not the order sought should, in the council’s opinion, be made.
[Clause 4 amended: No. 49 of 2004 s. 68(2)‑(4).]
Local government may propose ward changes or make minor proposals
A local government may, whether or not it has received a submission —
(a) carry out a review of whether or not an order under section 2.2, 2.3(3) or 2.18 should, in the council’s opinion, be made; or
(b) propose* to the Advisory Board the making of an order under section 2.2(1), 2.3(3) or 2.18(3) if, in the opinion of the council, the proposal is —
(i) one of a minor nature; and
(ii) not one about which public submissions need be invited;
or
(c) propose* to the Minister the making of an order changing the name of the district or a ward.
Local government with wards to review periodically
(1) A local government the district of which is divided into wards is to carry out reviews of —
(a) its ward boundaries; and
(b) the number of offices of councillor for each ward,
from time to time so that not more than 10 years elapse between successive reviews.
(1A) If an order under section 2.2(1) establishes a ward system for a district, the local government must carry out its first review of the ward system as described in subclause (1) within 10 years after the establishment of the ward system.
(3) A local government is to carry out a review described in subclause (1) at any time if the Advisory Board requires the local government in writing to do so.
[Clause 6 amended: No. 49 of 2004 s. 68(5) and (6); No. 11 of 2023 s. 90.]
Reviews
(1) Before carrying out a review a local government has to give local public notice advising —
(a) that the review is to be carried out; and
(b) that submissions may be made to the local government before a day fixed by the notice, being a day that is not less than 6 weeks after the notice is first given.
(2) In carrying out the review the local government is to consider submissions made to it before the day fixed by the notice.
Matters to be considered in respect of wards
Before a local government proposes that an order be made —
(a) to do any of the matters in section 2.2(1), other than discontinuing a ward system; or
(b) to specify or change the number of offices of councillor for a ward,
or proposes under clause 4(2) that a submission be rejected, its council is to have regard, where applicable, to —
(c) community of interests; and
(d) physical and topographic features; and
(e) demographic trends; and
(f) economic factors; and
(g) the ratio of councillors to electors in the various wards.
[Clause 8 amended: No. 49 of 2004 s. 68(7).]
Proposal by local government
On completing a review, the local government is to make a report in writing to the Advisory Board and may propose* to the Board the making of any order under section 2.2(1), 2.3(3) or 2.18(3) it thinks fit.
Recommendation by Advisory Board
(1) Where under clause 5(b) a local government proposes to the Advisory Board the making of an order under section 2.2(1), 2.3(3) or 2.18(3), and the Board is of the opinion that the proposal is —
the Board, in a written report to the Minister, is to recommend the making of the order but otherwise is to inform the local government accordingly and the local government is to carry out a review.
(2) Where under clause 9 a local government proposes to the Advisory Board the making of an order of a kind referred to in clause 8 that, in the Board’s opinion, correctly takes into account the matters referred to in clause 8(c) to (g), the Board, in a written report to the Minister, is to recommend the making of the order.
(3) Where a local government proposes to the Advisory Board the making of an order of a kind referred to in clause 8, or that a submission under clause 4(2) be rejected, that, in the Board’s opinion, does not correctly take into account the matters referred to in that clause —
(a) the Board may inform the local government accordingly and notify the local government that a proposal that does correctly take those matters into account is to be made within such time as is set out in the notice; and
(b) if the local government does not make a proposal as required by a notice under paragraph (a), the Board may, in a written report to the Minister, recommend* the making of any order under section 2.2(1), 2.3(3) or 2.18(3) it thinks fit that would correctly take into account those matters.
(4) Where a local government fails to carry out a review as required by clause 6, the Advisory Board, in a written report to the Minister, may recommend* the making of any order under section 2.2(1), 2.3(3) or 2.18(3) it thinks fit that would correctly take into account the matters referred to in clause 8.
[Clause 10 amended: No. 49 of 2004 s. 68(8).]
Inquiry by Advisory Board
(1) For the purposes of deciding on the recommendation, if any, it is to make under clause 10(3)(b) or (4), the Advisory Board may carry out any inquiry it thinks necessary.
(2) The Advisory Board may recover the amount of the costs connected with an inquiry under subclause (1) from the local government concerned as if it were for a debt due.
Minister may accept or reject recommendation
(1) The Minister may accept or reject a recommendation of the Advisory Board made under clause 10.
(2) If the recommendation is accepted the Minister can make a recommendation to the Governor for the making of the appropriate order.
Schedule 2.3 — When and how mayors, presidents, deputy mayors and deputy presidents are elected by the council
[Sections 2.11(1)(b) and 2.15]
Division 1 — Mayors and presidents
extraordinary vacancy means a vacancy that occurs under section 2.34(1);
office means the office of councillor mayor or president.
When council elects mayor or president
(1) The office is to be filled as the first matter dealt with —
(a) at the first meeting of the council after an inaugural election or a section 4.13 or 4.14 election or after an ordinary elections day; and
(b) at the first meeting of the council after an extraordinary vacancy occurs in the office.
(2) If the first ordinary meeting of the council is more than 3 weeks after an extraordinary vacancy occurs in the office, a special meeting of the council is to be held within that period for the purpose of filling the office.
CEO to preside
The CEO is to preside at the meeting until the office is filled.
How mayor or president is elected
(1) The council is to elect a councillor to fill the office.
(2) The election is to be conducted by the CEO in accordance with the procedure prescribed.
(3) Nominations for the office are to be given to the CEO in writing before the meeting or during the meeting before the close of nominations.
(3a) Nominations close at the meeting at a time announced by the CEO, which is to be a sufficient time after the announcement by the CEO that nominations are about to close to allow for any nominations made to be dealt with.
(4) If a councillor is nominated by another councillor the CEO is not to accept the nomination unless the nominee has advised the CEO, orally or in writing, that the nominee is willing to be nominated for the office.
(5) The councillors are to vote on the matter by secret ballot as if they were electors voting at an election.
(6) Subject to clause 5(1), the votes cast under subclause (5) are to be counted, and the successful candidate determined, in accordance with Schedule 4.1 (which deals with determining the result of an election) as if those votes were votes cast at an election.
(7) As soon as is practicable after the result of the election is known, the CEO is to declare and give notice of the result in accordance with regulations, if any.
[Clause 4 amended: No. 49 of 2004 s. 69(2)‑(5); No. 66 of 2006 s. 14; No. 47 of 2024 s. 160.]
Votes may be cast a second time
(1) If when the votes cast under clause 4(5) are counted there is an equality of votes between 2 or more candidates who are the only candidates in, or remaining in, the count, the count is to be discontinued and the meeting is to be adjourned for not more than 7 days.
(2) Any nomination for the office may be withdrawn, and further nominations may be made, before or when the meeting resumes.
(3) When the meeting resumes the councillors are to vote again on the matter by secret ballot as if they were electors voting at an election.
(4) The votes cast under subclause (3) are to be counted, and the successful candidate determined, in accordance with Schedule 4.1 as if those votes were votes cast at an election.
Division 2 — Deputy mayors and deputy presidents
Terms used
extraordinary vacancy means a vacancy that occurs under section 2.34(1);
office means the office of deputy mayor or deputy president.
When council elects deputy mayor or deputy president
(1) If the local government has an elector mayor or president the office of deputy mayor or deputy president is to be filled as the first matter dealt with —
(a) at the first meeting of the council after an inaugural election or a section 4.13 or 4.14 election or after an ordinary elections day; and
(b) at the first meeting of the council after an extraordinary vacancy occurs in the office.
(2) If the local government has a councillor mayor or president the office of deputy mayor or deputy president is to be filled —
(a) as the next matter dealt with after the mayor or president is elected at the first meeting of the council after an inaugural election or a section 4.13 or 4.14 election or after an ordinary elections day; and
(b) subject to subclause (3), as the first matter dealt with at the first meeting of the council after an extraordinary vacancy occurs in the office.
(3) If at a meeting referred to in clause 2(1)(b) the deputy mayor or deputy president is elected to be the mayor or president, the resulting extraordinary vacancy in the office is to be filled as the next matter dealt with at the same meeting.
How deputy mayor or deputy president is elected
(1) The council is to elect a councillor (other than the mayor or president) to fill the office.
(2) The election is to be conducted by the CEO in accordance with the procedure prescribed.
(3) Nominations for the office are to be given to the CEO in writing before the meeting or during the meeting before the close of nominations.
(4) Nominations close at the meeting at a time announced by the CEO, which is to be a sufficient time after the announcement by the CEO that nominations are about to close to allow for any nominations made to be dealt with.
(5) If a councillor is nominated by another council member, the CEO is not to accept the nomination unless the nominee has advised the CEO, orally or in writing, that they are willing to be nominated for the office.
(6) The council members are to vote on the matter by secret ballot as if they were electors voting at an election.
(7) Subject to clause 9(1), the votes cast under subclause (6) are to be counted, and the successful candidate determined, in accordance with Schedule 4.1 (which deals with determining the result of an election) as if those votes were votes cast at an election.
(8) As soon as is practicable after the result of the election is known, the CEO is to declare and give notice of the result in accordance with regulations, if any.
[Clause 8 inserted: No. 47 of 2024 s. 145.]
Votes may be cast a second time
(1) If when the votes cast under clause 8(6) are counted there is an equality of votes between 2 or more candidates who are the only candidates in, or remaining in, the count, the count is to be discontinued and the meeting is to be adjourned for not more than 7 days.
(2) Any nomination for the office may be withdrawn, and further nominations may be made, before or when the meeting resumes.
(3) When the meeting resumes the council members are to vote again on the matter by secret ballot as if they were electors voting at an election.
(4) The votes cast under subclause (3) are to be counted, and the successful candidate determined, in accordance with Schedule 4.1 as if those votes were votes cast at an election.
[Clause 9 inserted: No. 47 of 2024 s. 145.]
Division 3 — Validity of elections
[Heading inserted: No. 49 of 2004 s. 69(11).]
Term used: election
election means an election under this Schedule.
[Clause 10 inserted: No. 49 of 2004 s. 69(11).]
Complaints about validity of election
(1) A councillor who is dissatisfied with the result of an election or with the way in which an election was conducted may make an invalidity complaint.
(2) An invalidity complaint is a complaint that an election is invalid, or that another person should be declared elected.
[Clause 11 inserted: No. 49 of 2004 s. 69(11).]
Complaints to go to Court of Disputed Returns
(1) An invalidity complaint is to be made to a Court of Disputed Returns, constituted by a magistrate, but can only be made within 28 days after notice is given of the result of the election.
(2) Regulations made under section 4.81(2) apply in respect of an invalidity complaint made under this Division in so far as they are capable of being so applied.
(3) If the court declares the election to have been invalid —
(a) the election is null and void; and
(b) any office filled at the election is vacant; and
(c) the court is to fix a day for holding any poll needed for a fresh election; and
(d) the CEO is to prepare for, conduct and ascertain and declare the result of the fresh election.
(4) If the court declares that a person (candidate A) ought to have been elected to an office in place of another person (candidate B) —
(a) candidate B is not to act in that office; and
(b) candidate A is to be regarded as having been elected; and
(c) notice of candidate A’s election is to be published in accordance with regulations.
[Clause 12 inserted: No. 49 of 2004 s. 69(11).]
No appeal
There is no appeal from a decision of a Court of Disputed Returns.
[Clause 13 inserted: No. 49 of 2004 s. 69(11).]
Certain defects do not affect election
An election is not invalid because of —
(a) a failure to do something in connection with the election within the time, or for the period or before the date allowed or required under this Act, so long as the failure does not affect the result of the election; or
(b) a formal omission, irregularity or defect in a document, declaration, publication or other thing that a person has made, issued or done in good faith.
[Clause 14 inserted: No. 49 of 2004 s. 69(11).]
Regulations about retention and availability of electoral papers
Regulations made under section 4.84 apply in respect of elections in so far as they are capable of being so applied.
[Clause 15 inserted: No. 49 of 2004 s. 69(11).]
Schedule 2.4 — Provisions about commissioners
[Section 2.41]
Eligibility for appointment
(1) Any person is eligible for appointment as a commissioner if the person is qualified to be elected as a member of the council of the local government concerned or would be so qualified if the person were an elector of the district.
(2) Nothing in this Act prevents a person from being a commissioner of more than one local government or a member or former member of a council of a local government from being a commissioner of a local government.
[Clause 1 amended: No. 1 of 1998 s. 25; No. 49 of 2004 s. 70; No. 47 of 2024 s. 160.]
Tenure
Subject to clause 3, a commissioner holds office for the period set out in section 2.6(4), 2.36A(3), 2.37(4), 2.37A(1), 8.30 or 8.33, whichever is applicable.
[Clause 2 amended: No. 1 of 1998 s. 6(4); No. 64 of 1998 s. 4(6).]
Vacancies
The office of a commissioner becomes vacant if —
(a) the commissioner dies; or
(b) the Governor receives the written resignation of the commissioner; or
(c) the commissioner is absent, without leave and without reasonable excuse, from 3 consecutive meetings of the joint commissioners of which the commissioner has had notice; or
(d) the commissioner ceases to be eligible for appointment as a commissioner; or
(e) the Governor terminates the commissioner’s appointment.
[Clause 3 amended: No. 47 of 2024 s. 160.]
Vacancies may be filled
If the office of a commissioner becomes vacant the Governor may appoint a person to fill the vacancy.
Payment of commissioners
(1) A commissioner is to be paid remuneration and allowances, and reimbursed for expenses, in accordance with determinations made by the Minister from time to time.
(2) Payments and reimbursements under subclause (1) are to be made out of the funds of the local government concerned.
Procedure at meetings of joint commissioners
(1) At a meeting of joint commissioners —
(a) if 3 commissioners are appointed, 2 of them constitute a quorum; and
(b) if 5 commissioners are appointed, 3 of them constitute a quorum; and
(c) the chairperson, or in the chairperson’s absence the deputy chairperson, is to preside; and
(d) if 5 commissioners are appointed and the chairperson and the deputy chairperson are both absent, a commissioner chosen by those present is to preside.
(2) When a question arises at a meeting of joint commissioners —
(a) a decision on the question is to be made by simple majority unless subclause (3) applies; and
(b) each commissioner who is present is entitled to one vote; and
(c) if the votes are equally divided, the person presiding may cast a second vote.
(3) If 5 commissioners are appointed and a decision to be made on a question is one that would require an absolute majority of a council, the decision is to be made by an absolute majority of those commissioners.
[Clause 6 amended: No. 64 of 1998 s. 55; No. 16 of 2019 s. 70; No. 47 of 2024 s. 160.]
Schedule 2.5 — Provisions about the Local Government Advisory Board
[Section 2.44(2)]
Term used: member
member means a member of the Advisory Board.
Membership of Advisory Board
(1) The Advisory Board consists of 5 members appointed by the Minister.
(2) The members are to be persons who, in the opinion of the Minister, have knowledge and experience relevant to local government.
[Clause 2 inserted: No. 47 of 2024 s. 146.]
2A. Chairperson and deputy chairperson
(1) The Minister must, in writing, designate —
(a) a member to be the chairperson of the Advisory Board; and
(b) another member to be deputy chairperson of the Advisory Board.
(2) A member may be designated as the chairperson or deputy chairperson at the same time as the person is appointed as a member or at any time after the person is appointed as a member.
(3) Subject to this Schedule, the chairperson or deputy chairperson holds office for the term, ending not later than the term of appointment as a member, stated in the instrument of designation as chairperson or deputy chairperson.
(4) A vacancy arises in the office of chairperson or deputy chairperson of the Advisory Board if the person holding the office —
(a) resigns the office by written resignation given to the Minister; or
(b) ceases to be a member of the Advisory Board.
(5) A person resigning the office of chairperson or deputy chairperson of the Advisory Board may continue to be a member.
[Clause 2A inserted: No. 47 of 2024 s. 146.]
2B. Deputy chairperson acting as chairperson
(1) The deputy chairperson of the Advisory Board must act as chairperson —
(a) during a vacancy in the office of chairperson; and
(b) during all periods when the chairperson is absent from duty or for another reason cannot perform the duties of the office.
(2) An act or omission of the deputy chairperson acting in the place of the chairperson is not to be questioned on the ground that the occasion for acting had not arisen or had ceased.
[Clause 2B inserted: No. 47 of 2024 s. 146.]
Deputies
(1) The Minister may appoint a deputy for any member appointed under clause 2, other than the member designated as chairperson.
(2) A person is not eligible to be appointed as a deputy for a member unless that person is eligible to be appointed to the office of that member.
(4) The deputy for a member is —
(a) in the absence of the member from a meeting of the Advisory Board, entitled to attend the meeting in place of the member; and
(aa) if the member is the member designated as deputy chairperson and acting as chairperson under clause 2B(1), entitled to attend the meeting even though the member is also present; and
(b) where the member disqualifies themself from acting as a member on a matter arising at a meeting of the Advisory Board, entitled to act in the place of the member; and
(c) if the member vacates office before the term of office expires, entitled to attend meetings and otherwise act in place of the member.
(5) A deputy attending a meeting or acting in place of a member under subclause (4) has all the functions and protection of a member.
[Clause 3 amended: No. 1 of 1998 s. 26(2) and (3); No. 47 of 2024 s. 147.]
[4. Deleted: No. 47 of 2024 s. 148.]
Term of office
(1) The term of office of a member is the period specified in the instrument of appointment and is not to exceed 4 years.
(2) Subclause (1) does not prevent a person who has held office as a member from being appointed for a subsequent term.
Vacation of office
(1) The office of a member becomes vacant if the term for which the member is appointed expires or the member —
(a) dies; or
(b) by notice in writing to the Minister, resigns; or
(c) is removed from office under subclause (2).
(2) The Minister may remove a person from office as a member on the grounds of —
(a) incapacity to carry out satisfactorily the duties of the office; or
(b) neglect of duty; or
(c) misconduct; or
[(d) deleted]
(e) any other cause for which it appears to the Minister that the person should be removed from office.
[Clause 6 amended: No. 47 of 2024 s. 149.]
Meetings
(1) The chairperson must preside at all meetings of the Advisory Board at which the chairperson is present.
(3) The quorum at a meeting is 3 members.
(4) Subject to subclause (7), each member present at a meeting of the Advisory Board is entitled to one vote.
(5) Unless a question arising at a meeting is one that is required to be decided by an absolute majority, the question is to be decided by a majority of the votes of the members present and voting.
(6) Each member is to have regard to the general interests of local government in the State.
(7) Subject to any order under subclause (8), a member is disqualified from acting where the matter being considered or inquired into by the Advisory Board is a matter relating to a local government of which the member is a member, employee or elector.
(8) The Minister may, by order, declare that subclause (7) does not apply in relation to a matter or class of matters specified in the order, and that order has effect according to its terms.
(9) An order is not to be made under subclause (8) unless the Minister considers the order to be necessary to enable the Advisory Board to perform its functions properly.
(10) To the extent that it is not prescribed the Advisory Board may determine its own meeting procedure, and other procedure and practice.
[Clause 7 amended: No. 1 of 1998 s. 26(4); No. 49 of 2004 s. 71(3); No. 17 of 2009 s. 45; No. 47 of 2024 s. 150 and 160.]
Remuneration and allowances
(1) Members are entitled to such remuneration and allowances as the Minister from time to time determines on the recommendation of the Public Sector Commissioner.
(2) Subclause (1) does not apply to a member who is an officer of the Public Service.
[Clause 8 amended: No. 39 of 2010 s. 89.]
Protection
No liability attaches to a member for any act or omission by the member or on the member’s part by the Advisory Board that occurred in good faith and in the performance of the member’s or the Board’s functions under this Act.
Staff
The Departmental CEO is to make an officer of the Department available to the Advisory Board to act as its executive officer.
[Clause 10 amended: No. 28 of 2006 s. 364.]
Delegation
(1) The Advisory Board may, with the approval of the Minister, appoint a committee and delegate to the committee a particular matter that is before the Advisory Board for consideration.
(2) A committee appointed under subclause (1) is to consist of not less than 3 persons with knowledge and experience relevant to local government.
(3) The Advisory Board must designate —
(a) a member of the committee to preside at committee meetings at which the member is present; and
(b) a member of the committee to preside at committee meetings at which the member designated under paragraph (a) is not present.
(3A) The quorum for a meeting of a committee is 50% of the members appointed.
[(3b) deleted]
(4) In exercising its functions, a committee has the same powers as the Advisory Board.
(5) Members of a committee have the same entitlements to remuneration, allowances and protection as members of the Advisory Board.
[(6) deleted]
(7) The Advisory Board may, with the approval of the Minister, appoint a deputy for any member of the committee and clause 3 applies with such modifications as are necessary to such deputies.
(8) When a committee appointed under subclause (1) has dealt with the matter delegated to it, it is dissolved.
[Clause 11 amended: No. 1 of 1998 s. 26(5)‑(7); No. 49 of 2004 s. 12 and 71(2); No. 16 of 2019 s. 71(3); No. 47 of 2024 s. 151.]
Powers of inquiry
(1) For the purposes of carrying out an inquiry under this Act, the Advisory Board may —
(a) by summons signed on behalf of the Advisory Board by its executive officer, require —
(i) the attendance before the Advisory Board of any person;
(ii) the production before the Advisory Board of any document;
(b) inspect any document produced before it, and retain it for such reasonable period as it thinks fit, and make copies of the document or any of its contents;
(c) require any person to swear to truly answer all questions relating to a matter being inquired into by the Advisory Board that are put by or before the Advisory Board (and for that purpose a member of the Advisory Board or its executive officer may administer any oath or affirmation);
(d) require any person appearing before the Advisory Board to answer any relevant question.
(2) A person is not excused from complying with a requirement under subclause (1) on the ground that the answer to a question or the production of a document might be incriminating or render the person liable to a penalty, but an answer given by a person that was required under subclause (1) to be given is not admissible in evidence against the person in any civil or criminal proceedings other than proceedings for perjury or for an offence against this Act arising out of the false or misleading nature of the answer.
Investigations
The Advisory Board may cause such investigations to be made as it sees fit for the purposes of its inquiry into a matter.
Annual report
(1) By 31 August in each year, the Advisory Board is to prepare and provide to the Minister a report on the proposals made to it and the inquiries and recommendations made by it during the previous financial year.
(2) The Advisory Board may apply to the Minister before 31 August for an extension of time in which to lodge the annual report and the Minister may grant an extension on such terms as the Minister thinks fit.
(3) As soon as practicable after receiving the annual report, the Minister is to cause a copy of it to be laid before each House of Parliament.
Offences
(a) having been served with a summons to attend before the Advisory Board, fails without reasonable excuse (proof of which lies on him or her) to attend in obedience to the summons; or
(b) having been served with a summons to produce any document before the Advisory Board, fails without reasonable excuse (proof of which lies on him or her) to produce a document in obedience to the summons; or
(c) fails without reasonable excuse (proof of which lies on him or her) to swear, or to answer any question, when required to do so by the Advisory Board; or
(d) misbehaves before the Advisory Board, insults the Advisory Board or a member of it, or interrupts the proceedings of the Advisory Board,