Local Government (Casey City Council) Act 2020

The core concept is the dismissal of an elected council by an Act of Parliament, not by a process under the ordinary local government legislation. The Act creates a bespoke regime that overrides whatever internal disciplinary or intervention mechanisms the Local Government Act 1989 or 2020 might have provided. The key concept is the substitution of an appointed administrator or panel for the entire elected body, and the specific statutory direction that the administrator performs all functions, powers and duties of the council, councillors, and mayor.

The “Order in Council” is defined in section 4 as the first Order made under section 6 and any further Order under that section. This is the instrument that activates and continues the administration. The Act allows for flexibility in the appointment structure: a single administrator, a panel with a designated chairperson, replacement of administrators, and temporary administrators to cover absence or incapacity (section 6). The Minister controls the conditions of appointment, including remuneration and allowances (section 7(e)), and the administrator cannot engage in paid outside employment without the Minister’s consent (section 7(f)(i)). The office of administrator becomes vacant upon bankruptcy, death, removal, resignation, conviction of an indictable offence, or incapacity (section 7(g)).

A critical concept is that the council corporation continues - its identity and legal obligations persist. The Act treats the administrator’s acts as the council’s acts, meaning contracts, permits, planning decisions, employment arrangements, and liability for wrongful acts all remain with the council. Section 9 extends this substitution to other laws and documents: any provision in an Act, regulation, by-law, local law, instrument or document that requires the Mayor, a Councillor, or a committee chair or member to sit on an external board, council, committee, or trust is taken to refer instead to an administrator or a person appointed by the administrator or panel. This ensures the council’s external representation can continue without disruption.

The election is a second key concept: the Act deliberately resets the electoral cycle. Rather than holding a fresh election within a few months, the election is deferred to a fixed date over four years later. This creates a long interregnum during which ratepayers have no direct vote in council decisions.

The primary group directly affected is the elected councillors of the Casey City Council: section 5(2) removes them from office immediately, and they have no right to resume office at the election. The Act does not provide compensation, a right of review, or any transitional functions for dismissed councillors.

The residents and ratepayers of the City of Casey are profoundly affected. They lose the right to elect their local representatives for over four and a half years. During that period, decisions about rates, planning, infrastructure, waste services, community grants, and local laws are made by an administrator or panel appointed by the Minister, not by anyone answerable to a local electorate. The cost of the administrator’s remuneration and allowances is borne by the council itself under section 7(e): the administrator is paid by the Casey City Council, meaning ratepayers fund the appointed officials’ salaries. The Minister fixes the amount, so the council (and therefore ratepayers) has no say in the cost.

Council staff and the Chief Executive Officer continue in their roles but report to an administrator instead of an elected council. The CEO retains specific duties under section 10(2) to summon the first post-election meeting. The administrator may restructure management or alter strategic priorities with no need to seek community electoral approval.

Other organisations that had council representation on boards, committees, or trusts are affected by section 9. If a local Act or instrument required the Mayor or a councillor to sit on a regional board (for example a catchment management authority or a regional library corporation), that seat is now filled by an administrator or a delegate appointed by the administrator. The dynamics of those bodies may shift because the representative is appointed rather than elected.

The Minister and the Governor in Council exercise appointment and removal powers. The Minister fixes conditions and remuneration, and can remove an administrator (section 7(g)(iii)). This centralises control over the council’s governance in the state government, reducing local autonomy.

Finally, candidates and political parties are affected by the delayed election: the usual four-year cycle is interrupted, meaning campaigning and preselection schedules must adjust to a 2024 election rather than an earlier date.

The Act imposes duties on the administrator rather than conferring duties on affected parties. The administrator’s primary duty under section 7 is to perform all the functions, powers and duties of the Casey City Council, of a councillor, and if chairperson, of the Mayor. This is a broad obligation, but it is subject to any conditions of appointment that the Minister attaches. The Act does not list those conditions; they are set in the Order in Council or in a separate instrument. The administrator must therefore comply with the Minister’s conditions, which could include reporting requirements, spending limits, or directions on specific matters.

The administrator has rights to remuneration and allowances as fixed by the Minister, paid by the council (section 7(e)). This is not a discretionary entitlement: the Minister fixes the amount, and the council must pay. The administrator also has a right to resign by written notice to the Governor in Council (section 7(f)(ii)). The resignation takes effect upon acceptance or as stated in the notice; the Act does not specify a notice period.

The administrator’s rights are limited in certain respects. Under section 7(f)(i), the administrator must not “directly or indirectly engage in any paid employment outside the duties of the office of administrator” without the Minister’s consent. This is a significant restriction on personal economic freedom, designed to ensure the administrator’s full attention is on the council. The Minister may impose additional conditions that further limit outside activities.

The council (through the administrator) retains its existing rights: to enter contracts, to own property, to sue and be sued, to set rates within the bounds of the Local Government Acts. The Act does not remove any of the statutory powers of the council; it merely changes who exercises them.

A right of note for the Chief Executive Officer arises under section 10(2): the CEO must summon a meeting within 14 days after the returning officer declares the election result. This is a statutory duty, and the CEO has no discretion to delay.

Ratepayers have no rights under this Act. They cannot petition for an earlier election, challenge the administrator’s decisions under this Act (though they retain general rights of review under the Local Government Acts for specific decisions), or remove the administrator through any process in this Act.

The Act does not create any criminal offences or civil penalties directly. There is no fine or imprisonment for breach of its provisions. However, indirect enforcement mechanisms exist.

The most significant enforcement lever is the Minister’s power to remove an administrator. Under section 7(g)(iii), the office of administrator becomes vacant if the administrator is “removed” from office. The Act does not specify a procedure for removal, but it logically arises from the Minister’s recommendation to the Governor in Council or from the Minister’s power to fix conditions. Failure to comply with a condition (such as the outside employment restriction) could lead to removal. Removal requires no reason to be given in the Act, so it is effectively at the Minister’s discretion.

Conviction of an indictable offence also automatically causes a vacancy (section 7(g)(iv)). This is a de facto penalty: an administrator who commits a serious crime loses the office. The Act does not define what “indictable offence” means for this purpose, but it would be determined by reference to ordinary criminal law. The consequence is not a penalty under this Act but a statutory disqualification.

The restriction on outside paid employment in section 7(f)(i) carries no express penalty, but breach could be grounds for removal or for reduction of remuneration. The Minister may treat unauthorised employment as a breach of conditions justifying removal.

The Act does not impose any enforcement mechanism against the Minister or the Governor in Council for failure to act. If the Minister fails to recommend an appointment or the Governor in Council fails to make an Order, the Act does not provide for any person to compel action. Similarly, if the Chief Executive Officer fails to summon the post-election meeting within 14 days, there is no penalty stated, though the delay could affect the timing of the Order in Council’s expiry.

No enforcement provisions apply to the dismissed councillors. They have no obligation to vacate premises or hand over documents; those matters would be dealt with under general council property and governance arrangements.

Section 3 requires the Act to be “read and construed as if it was part of the Local Government Act 1989 and the Local Government Act 2020.” This deeming provision means that references to the council in the Local Government Acts are to be read as references to the council as constituted by the administrator. The Act does not repeal any part of those Acts; it operates alongside them, modifying how certain provisions apply to Casey.

The most direct modification is in section 10(1), which overrides section 31(1) of the 1989 Act and section 257(1) of the 2020 Act. Those sections would normally require a general election at a specified interval after council elections. The Act displaces them and sets the fixed date of fourth Saturday in October 2024. This is a targeted override limited to Casey.

Section 9 interacts with a broad range of other laws and documents. It applies whenever an Act, regulation, rule, by-law, local law, instrument, or document provides for the Mayor, a Councillor, or a committee chair or member to serve on an external body. While the Order in Council is in force, that provision is read as if it refers to an administrator or a person appointed by the administrator or panel. This ensures continuity of representation but changes the nature of that representation: an appointed person replaces an elected person. If the external body’s constituting legislation requires an elected local government representative, section 9 overrides that requirement.

The Act does not interact with the Constitution Act 1975 or any federal legislation. It does not affect the council’s obligations under planning laws, public health laws, local government rating provisions, or employment law. All those continue to apply to the council as performed by the administrator.

The Act also interacts with the Interpretation of Legislation Act 1984, as noted in the endnotes. Style changes, headings, examples, and punctuation are incorporated according to that Act. The table of amendments shows that the Local Government Act 2020 (No. 9/2020) amended sections 3 and 10(1) on 6 April 2020 to update references to the new Local Government Act 2020, ensuring the two Acts align.

No interaction with common law doctrines such as natural justice is evident on the face of the Act, though general administrative law principles may apply to the Minister’s decisions.

The Act received Royal Assent on 19 February 2020 and came into operation on 20 February 2020, the day after assent, as provided in section 2. It was originally enacted as the Local Government (Casey City Council) Act 2020, No. 2 of 2020.

The only amendment to date was made by the Local Government Act 2020, No. 9 of 2020. Section 390 of that Act, Schedule 1 item 63A, amended section 3 and section 10(1) of this Act. The amendment inserted a reference to the Local Government Act 2020 (which was itself enacted on 24 March 2020 and commenced in stages). Section 3 originally may have referred only to the 1989 Act; the amendment added the reference to the 2020 Act so that this Act is to be read and construed as if it were part of both the old and new local government legislation. Similarly, section 10(1) originally overrode only section 31(1) of the 1989 Act; the amendment added the override of section 257(1) of the 2020 Act. The amendment commenced on 6 April 2020, as published in Special Gazette No. 150 of 24 March 2020.

No other amendments are in the table of amendments, and the endnotes state that no amendments not in operation exist. The Act therefore has a very short amendment history, reflecting its narrow scope and purpose. The absence of further amendment suggests either that the administration proceeded without need for legislative adjustment or that the Act was seen as a one-off measure not requiring refinement.

The endnotes also record that the Interpretation of Legislation Act 1984 provides for style changes and that all headings, examples, diagrams, notes, and punctuation form part of the Act. This is standard for Victorian legislation and does not affect the substance.

The Act itself records no litigation history. The endnotes do not reference any court decisions, and the text of the Act contains no savings clause for pending proceedings or any provision preserving rights of appeal. This is consistent with a targeted statute that was intended to take immediate effect without anticipated legal challenge.

However, it is possible that the Act was the subject of judicial review proceedings outside the text. The source does not disclose such proceedings, and the instructions prohibit inventing cases. Therefore, the litigation history based solely on the source is nil.

Several theoretical grounds for challenge exist but are not confirmed by the source. Dismissed councillors might have argued that the Act breached an implied constitutional right to democratic local government, but the High Court has not recognised such a right at Commonwealth level, and Victoria has no bill of rights that would protect councillors’ tenure. The Act is a valid exercise of the Victorian Parliament’s plenary power under the Constitution Act 1975, subject only to any express limitations in that Act. No such limitation is evident.

Another potential challenge could have been based on natural justice: the councillors were dismissed without notice or hearing. But the Act is a legislative act, not an administrative one, and the Parliament is not bound by the rules of natural justice when passing a statute. Courts have consistently held that a legislature can remove office-holders by statute without affording procedural fairness, unless a constitutional right intervenes.

The Act might have prompted litigation about the administrator’s decisions during the administration period, but any such cases would be brought under general administrative law or local government legislation, not under this Act itself. The Act provides no special right of review for administrator decisions.

In summary, on the face of the source, there is no recorded litigation under or about this Act.

The most significant trap for the unwary is the breadth of the administrator’s power combined with the conditions that may be imposed by the Minister, which are not set out in the Act. Section 7(a) says the administrator must perform all functions, powers and duties of the council “subject to any conditions of the administrator’s appointment or administrators’ appointments.” Those conditions could include restrictions on spending without Ministerial approval, directions to sell assets, or requirements to implement specific state government policies. The Act gives no notice of what those conditions might be, and they could be changed by a new Order in Council without further legislation.

Another gotcha is the cost to ratepayers. Section 7(e) requires the council to pay the administrator’s remuneration and allowances as fixed by the Minister. The Minister has no incentive to keep costs low, and the council cannot vote against the expenditure. If the Minister sets a high salary, ratepayers must fund it. The administrator’s remuneration is not capped in the Act.

The outside employment restriction in section 7(f)(i) is absolute on its face: the administrator must not engage in any paid employment outside the duties of the office without the Minister’s consent. This includes indirect employment - for example, being a director of a company that pays a fee. A breach could lead to removal, and the Minister’s consent can be withheld for any reason. This limits the administrator’s ability to maintain other professional income or run a business.

Section 7(d) provides that the administrator’s appointment and anything done by the administrator “is not invalid only by reason of a defect in relation to the appointment.” This protects the administrator’s acts from collateral challenge based on procedural flaws in the appointment process. If the Minister failed to consult someone, or the Governor in Council acted without a proper recommendation, the administrator’s decisions would still be valid. This reduces the ability to challenge decisions through litigation.

Section 9 is a hidden trap for other bodies. If a trust deed or regional committee constitution requires the Mayor of Casey to be a trustee or member, that requirement is automatically read as referring to an administrator. The administrator may choose to appoint someone else instead. This could disrupt governance arrangements that assume elected representation. Bodies relying on the Mayor’s personal attendance may need to adjust.

The timing of the election is fixed at October 2024, but the Act does not prevent the Minister from recommending a further Order in Council amending that date. Section 6 allows further Orders in Council, and section 10 could be overridden by a later Act. There is no guarantee the election will occur as scheduled, though the Act’s structure suggests an intention to return to elected governance.

Finally, the Act does not provide for any review of the dismissal decision itself or for compensation to dismissed councillors. They have no right of appeal, no severance pay, and no entitlement to continued access to council resources. They simply cease to hold office.

Compliance obligations under this Act fall on different actors. For the Minister, compliance means making a recommendation to the Governor in Council in a timely manner under section 6, and fixing conditions and remuneration for the administrator under section 7(e). The Minister should ensure the Order in Council is published in the Government Gazette. If a vacancy arises, the Minister must recommend a new appointment under section 6(c) or a temporary appointment under section 6(d). The Minister must also grant or withhold consent for outside employment under section 7(f)(i) as applications arise.

For the Governor in Council, compliance means formally making the Order in Council and ensuring it specifies the date of effect under section 8. The first Order in Council must be published in the Government Gazette. Further Orders to fill vacancies or appoint temporary administrators must also be processed.

For the administrator or panel, compliance involves accepting the appointment and then performing all functions, powers and duties of the council, councillors, and mayor as required by section 7(a)-(c). The administrator must operate within any conditions set by the Minister. Practically, this means attending to council meetings, making decisions on planning applications, setting the budget, approving rates, managing staff, and representing the council externally. The administrator must avoid any paid outside employment without first obtaining the Minister’s consent (section 7(f)(i)). If the administrator wishes to resign, a written notice addressed to the Governor in Council is required (section 7(f)(ii)). The administrator should also be aware of the grounds for vacancy under section 7(g): bankruptcy, death, removal, resignation, conviction of an indictable offence, or incapacity will end the appointment. The administrator should avoid any conduct that could lead to conviction.

The administrator must also arrange for representation on external bodies as required by section 9. If the Order in Council is in force, the administrator must either personally serve or nominate another person to serve on any board, council, committee, commission, trust, or company where the Mayor or a councillor would normally sit.

For the Chief Executive Officer, compliance under section 10(2) is straightforward but time-sensitive: within 14 days after the returning officer declares the result of the general election, the CEO must summon a meeting of the new council. The CEO should liaise with the returning officer to obtain the declaration date and then issue the meeting notice promptly.

For existing council staff, compliance means accepting the administrator’s authority. All contracts, policies, and decisions remain valid, and staff must treat the administrator as they would have treated the council. No special compliance steps are required beyond normal duties.

For the returning officer, compliance means conducting the general election on the fourth Saturday in October 2024 (section 10(1)), overriding any other election date that would otherwise apply. The declaration of results triggers the CEO’s duty and the eventual expiry of the Order in Council.