1Local Government Finance Authority Act 1983

South Australia Local Government Finance Authority Act 1983 An Act to establish a corporation to be known as the Local Government Finance Authority of South Australia; to make provision relating to the financial powers and relations of the Authority, councils and other bodies; and for other purposes.

Contents Part 1—Preliminary 1 Short title 3 Interpretation Part 2—The Local Government Finance Authority of South Australia Division 1—Establishment of the Authority 4 Establishment of the Authority 5 Councils to be members of the Authority Division 2—The Board of Trustees of the Authority 6 Authority to be managed by Board of Trustees 7 Constitution of the Board 8 Terms and conditions of office 9 Presiding Member 10 Procedures etc of the Board 11 Validity of acts of the Board and immunity of members 12 Disclosure of interest 13 Allowances and expenses for members Division 3—General meetings of the Authority 14 Annual general meetings and special general meetings 15 Representation at meetings 16 Quorum etc 17 Procedure at general meetings 18 Business of general meetings 20 Resolutions of general meetings Part 3—The Authority and local government financing 21 Functions and powers of the Authority 22 Financial management 23 Money provided by Treasurer 24 Guarantee by Treasurer etc 25 Approvals by Minister or Treasurer 26 Power of councils etc to borrow money from or deposit money with Authority Part 4—Miscellaneous 28 Delegation by the Board 29 Staff 31 Authority may charge fees 31A Tax equivalents 32 Exemption of Authority from State taxes etc 32A Evidentiary provision 33 Accounts and audit 34 Annual report 35 Activities with prescribed bodies 36 Regulations 37 Rules of the Authority Legislative history

The Parliament of South Australia enacts as follows: Part 1—Preliminary 1—Short title This Act may be cited as the Local Government Finance Authority Act 1983. 3—Interpretation In this Act, unless the contrary intention appears: the Authority means the Local Government Finance Authority of South Australia established under Part 2; the Board means the Board of Trustees of the Authority established under Part 2; council means a council as defined in the Local Government Act 1934; council representative means a person appointed by a council under Part 2 to represent it at a general meeting of the Authority; LGA means the Local Government Association of South Australia; loan means any form of financial accommodation (not being a grant) and lend and borrow have corresponding meanings; prescribed local government body means— (a) a controlling authority established under Part 13 of the Local Government Act 1934; or (b) the LGA; or (c) any other body— (i) established by or for councils or for local government purposes; and (ii) prescribed for the purposes of this paragraph; representative member of the Board means a member of the Board— (a) elected to the Board; or (b) appointed to the Board upon the nomination of the LGA, under Part 2; security includes any document evidencing indebtedness. Part 2—The Local Government Finance Authority of South Australia Division 1—Establishment of the Authority 4—Establishment of the Authority (1) The Local Government Finance Authority of South Australia is established. (2) The Authority— (a) is a body corporate with perpetual succession and a common seal; and (b) is capable in its corporate name of acquiring, holding, dealing with and disposing of real and personal property; and (c) is capable of acquiring or incurring any other rights or liabilities and of suing and being sued in its corporate name; and (d) has the powers, authorities, duties and functions prescribed by or under this or any other Act. (3) In any legal proceedings, an apparently genuine document purporting to bear the common seal of the Authority will be presumed, in the absence of proof to the contrary, to have been duly executed by the Authority. (4) The Authority is a statutory authority established for the benefit of councils and other prescribed local government bodies within the State. It is not part of the Crown, nor is it an agency or instrumentality of the Crown. (5) The Authority cannot be brought under the operation of the Public Corporations Act 1993. 5—Councils to be members of the Authority Every council is a member of the Authority. Division 2—The Board of Trustees of the Authority 6—Authority to be managed by Board of Trustees (1) The Authority is managed and administered by a Board of Trustees constituted in accordance with this Division. (2) An act done or decision made by the Board in the management or administration of the affairs of the Authority is an act or decision of the Authority. 7—Constitution of the Board (1) Subject to this section, the Board is constituted of seven members of whom— (a) two are persons elected in accordance with the rules of the Authority; (b) two are persons appointed by an annual general meeting of the Authority upon the nomination of the LGA; (c) one is a person appointed by the Minister; (d) one is a person appointed by the Treasurer; (e) one is the person for the time being holding or acting in the office of Secretary of the LGA. (2) At least one member of the Board must be a woman and at least one member must be a man. (3) A person is not eligible for election as a member of the Board under subsection (1)(a) unless that person is— (a) a member of a council; or (b) an officer of a council. (3a) The Board may co-opt as an additional member or as additional members of the Board one or two persons with financial expertise to assist the Board in the performance of its functions. (4) Subject to subsection (5), a member of the Board may appoint a suitable person to act as his or her deputy and that person may, in the absence of that member, act as a member of the Board. (5) The appointment of a deputy under subsection (4) by a representative member of the Board is subject to the approval of the Board. 8—Terms and conditions of office (1) Subject to this section, a representative member of the Board holds office for a term of two years commencing on 1 January in the year next succeeding the year in which he or she was elected or appointed. (3) A representative member of the Board is eligible for re-election or re-appointment. (4) A representative member of the Board may be removed from office by resolution passed at a general meeting of the Authority if the member— (a) becomes mentally or physically incapable of satisfactorily carrying out official duties; or (b) is guilty of neglect of duty or dishonourable conduct. (5) The office of a representative member of the Board becomes vacant if the member— (a) dies; or (b) completes a term of office; or (c) resigns by written notice to the Board; or (d) is removed from office pursuant to subsection (4). (6) If a casual vacancy occurs in the office of a representative member of the Board, the Board may appoint a suitable person to fill the vacancy and that person will hold office for the balance of the term of his or her predecessor. (7) The following provisions apply with respect to the appointment of members of the Board by the Minister or the Treasurer: (a) an appointment will be made on conditions determined by the Minister or the Treasurer (as the case may be) and for a term, not exceeding two years, specified in the instrument of appointment; and (b) a person who has been appointed by the Minister or the Treasurer is eligible for reappointment at the expiration of a term of office; and (c) if a casual vacancy occurs in the office of a member appointed by the Minister or the Treasurer, the Minister or the Treasurer (as the case may be) may appoint a suitable person to the vacant office; and (d) a person who has been appointed by the Minister or the Treasurer may be removed from office by the Minister or the Treasurer (as the case may be)— (i) for breach of, or non-compliance with, a condition of appointment; or (ii) on the ground that the person has become mentally or physically incapable of satisfactorily carrying out official duties; or (iii) for neglect of duty or dishonourable conduct; and (e) the office of a person appointed by the Minister or the Treasurer becomes vacant if the person— (i) dies; or (ii) completes a term of office and is not reappointed; or (iii) resigns by written notice to the Minister or the Treasurer (as the case may be); or (iv) is removed from office pursuant to paragraph (d). (8) The following provisions apply with respect to the appointment of a co-opted member of the Board: (a) an appointment will be made on conditions determined by the Board and may be limited in accordance with the terms of the instrument of appointment; and (b) an appointment may be terminated at any time by resolution of the Board or the Authority. 9—Presiding Member The Presiding Member and Deputy Presiding Member of the Board will be appointed by the Board from the representative members of the Board. 10—Procedures etc of the Board (1) A quorum at a meeting of the Board consists of one-half of the total number of its members (ignoring any fraction resulting from the division) plus one. (2) The Presiding Member will, if present at a meeting of the Board, preside at that meeting and, in the Presiding Member's absence, the Deputy Presiding Member will preside, and in the absence of both the Presiding Member and the Deputy Presiding Member, the members present will decide who is to preside at the meeting. (3) A decision carried by a majority of the votes of the members of the Board present at a meeting is a decision of the Board. (4) Each member of the Board is entitled to one vote on a matter arising for decision by the Board, and the person presiding at the meeting has, in the event of an equality of votes, a second or casting vote. (5) The Board must cause accurate minutes to be kept of the business conducted at meetings of the Board. (5a) A decision in which all members of the Board concur is a decision of the Board despite the fact that it is not made at a meeting of the Board. (5b) The Authority must cause a record to be kept of any decision made under subsection (5a). (6) Subject to this Act, the business of the Board will be conducted in a manner determined by the Board. 11—Validity of acts of the Board and immunity of members (1) An act or proceeding of the Board is not invalid by reason only of a vacancy in its membership or a defect in the appointment or election of a member. (2) No personal liability attaches to a member of the Board for an act or omission by that member or the Board in good faith in the exercise or discharge of powers, duties or functions by the member or the Board under this Act. (3) A liability that would, but for subsection (2), lie against a member of the Board lies against the Authority. 12—Disclosure of interest (1) A member of the Board who is directly or indirectly interested in a contract, or proposed contract, of the Authority— (a) must, as soon as he or she becomes aware of the contract or proposed contract, disclose the nature of the interest to the Board; and (b) must not take part in any deliberations or decision of the Board with respect to that contract. Maximum Penalty: $10 000 or imprisonment for 2 years. (2) Despite subsection (1), if a member of the Board is a member, officer, ratepayer or elector of a council with which the Authority has contracted or proposes to contract, the member is not, by reason of that fact, prevented from taking part in any deliberations or decisions of the Board that have common application to that contract or proposed contract and contracts or proposed contracts with other councils. (3) A disclosure made under this section must be recorded in the minutes of the Board. (4) If a member makes a disclosure of interest in respect of a contract or proposed contract in accordance with this section— (a) the contract is not void, or liable to be avoided, on any ground arising from the member's interest in the contract; and (b) the member is not liable to account to the Authority for any profits derived from the contract. 13—Allowances and expenses for members (1) The Authority must pay such allowances and expenses (if any) as may be approved by a general meeting of the Authority in respect of the services of the members of the Board. (2) An amount payable by way of allowances in respect of a member appointed by the Minister or the Treasurer must be paid in accordance with an arrangement approved by the Minister or the Treasurer (as the case may be) and an amount payable in respect of the Secretary of the LGA must be paid to the LGA. (3) The Board may determine to pay to co-opted members of the Board amounts that are additional to the allowances payable under subsection (1). Division 3—General meetings of the Authority 14—Annual general meetings and special general meetings (1) The Board must convene annual general meetings of the Authority. (2) A special general meeting of the Authority must be held— (a) upon request in writing made to the Board by not less than one-quarter of the total number of councils; or (b) upon a resolution of the Board requiring the convening of such a meeting. (3) General meetings of the Authority will be held at such times and places as are fixed by the Board by at least six weeks notice, in writing, delivered or posted to each council. (4) If a request is made for a special general meeting under subsection (2)(a), a special general meeting must be held in response to the request within ten weeks of the making of the request. 15—Representation at meetings (1) Each council is entitled to appoint a person to represent it at a general meeting of the Authority. (2) Each council representative is entitled to have one vote on any motion before a general meeting of the Authority. 16—Quorum etc (1) The prescribed number of council representatives constitutes a quorum for a general meeting of the Authority and no business will be transacted at a general meeting of the Authority unless a quorum is present. (2) In this section, a reference to the prescribed number of council representatives means a number ascertained by dividing the total number of councils by two, ignoring any fraction resulting from the division, and adding one. 17—Procedure at general meetings (1) Subject to this section, the Presiding Member of the Board will preside at a general meeting of the Authority. (2) If the Presiding Member of the Board is absent from a general meeting of the Authority, the Deputy Presiding Member will preside, and in the absence of both the Presiding Member and the Deputy Presiding Member, the council representatives present will decide who is to preside at the meeting. (3) A motion is passed at a general meeting of the Authority if carried by a majority of the votes of the council representatives present at the meeting. 18—Business of general meetings The business of a general meeting of the Authority is as follows: (a) to receive and consider any report of the Board presented to the meeting; (b) to consider and approve or disapprove any proposals submitted to the meeting by the Board; (c) to consider and pass resolutions with respect to any matter relating to the Authority or its affairs raised for consideration at the meeting (whether by the Board or a council or otherwise); (d) in the case of an annual meeting—to declare elected and appoint the representative members of the Board as contemplated by Division 2 (if any such members are to be elected or appointed in that year). 20—Resolutions of general meetings If a resolution is passed at a general meeting of the Authority, the Board must, at its next meeting after the passing of the resolution, give due consideration to the resolution and take such action (if any) as it considers appropriate in relation to the matters raised by the resolution. Part 3—The Authority and local government financing 21—Functions and powers of the Authority (1) The functions of the Authority are— (a) to develop and implement borrowing and investment programmes for the benefit of councils and prescribed local government bodies; and (b) to engage in such other financial activities as are determined by the Minister, after consultation with the LGA, to be in the interests of local government. (2) For the purposes of this Act, the Authority may— (a) borrow money within or outside Australia; or (c) accept money on deposit or loan from a council or prescribed local government body; or (d) lend or invest money held by the Authority; or (e) issue, sell, purchase, pay-off, repurchase, redeem, convert or otherwise deal in or with securities or shares; or (f) open and maintain accounts with an ADI or any other financial institution within or outside Australia; or (g) appoint an ADI or other person to act as underwriter, manager, trustee, attorney or agent in connection with any transaction within or outside Australia; or (h) enter into contracts of guarantee or indemnity; or (i) acquire, hold, deal with and dispose of real and personal property; or (ia) enter into partnerships and joint ventures and form companies; or (j) enter into any agreement or arrangement of a kind not previously mentioned in this subsection or acquire or incur any other rights or liabilities; or (k) exercise any other powers that are necessary or expedient for the performance of its functions. (2a) The Authority must not— (a) make a loan, other than one to a council or prescribed local government body; or (b) make an investment; or (c) enter into a partnership or joint venture or form a company, except with the approval of the Treasurer. (3) The Authority may, at the request of a council or prescribed local government body, provide advice or assistance to the council or body in relation to the management of its financial affairs. 22—Financial management (1) The Authority must, in the exercise and performance of its powers and functions, act in accordance with proper principles of financial management and with a view to avoiding a loss. (2) Any surplus of funds remaining after deduction or allowance for the costs of the Authority, and for any liability under section 31A, may— (a) be retained and invested by the Authority; or (b) be distributed amongst the councils and prescribed local government bodies with which the Authority has entered into financial arrangements; or (c) be applied for the benefit of any council or prescribed local government body or for any other local government purpose, as the Authority thinks fit. 23—Money provided by Treasurer (1) The Treasurer may, on behalf of the State, provide funds to the Authority on such terms and conditions as may be agreed between the Treasurer and the Authority. (2) The amount of $10 000 000 is appropriated by this section from the Consolidated Account for application pursuant to subsection (1). 24—Guarantee by Treasurer etc (1) Liabilities incurred or assumed by the Authority in pursuance of this Act are guaranteed by the Treasurer. (3) A borrowing of the Authority (other than by way of acceptance of money on deposit or loan from a council or prescribed local government body) requires the approval of the Treasurer (which may be absolute or conditional). (4) A liability of the Treasurer under a guarantee arising by virtue of subsection (1) will be satisfied out of the Consolidated Account which is appropriated by this section to the necessary extent. (5) The Authority is liable to pay to the Treasurer such fees in respect of guarantees arising by virtue of subsection (1) as are agreed, in writing, between the Authority and the Treasurer or as are prescribed upon the recommendation of the Treasurer made after consultation with the Authority. 25—Approvals by Minister or Treasurer A transaction under this Act for which the approval of the Minister or the Treasurer is required will be regarded as having that approval— (a) whether the approval is given in respect of that particular transaction or a class of transactions to which it belongs; and (b) whether the approval is given by the Minister or Treasurer or by a person acting with the authority of the Minister or Treasurer. 26—Power of councils etc to borrow money from or deposit money with Authority Despite the provisions of any other Act, a council or a prescribed local government body may— (a) borrow money from the Authority; or (b) deposit with, or lend to, the Authority any money of the council or body not immediately required for the purposes of the council or body; or (c) enter into such other financial transactions or arrangements with the Authority as are contemplated by this Act or approved by the Treasurer. Part 4—Miscellaneous 28—Delegation by the Board (1) The Authority may, by instrument in writing, delegate to the Presiding Member of the Board, an officer of the Authority or any other person any of its powers or functions under this Act. (2) A delegation under subsection (1) may be revoked by the Authority by instrument in writing and does not derogate from the power of the Authority to act itself in any matter. (3) In any legal proceedings, an apparently genuine document purporting to be a certificate under the seal of the Authority containing particulars of a delegation under this section will, in the absence of proof to the contrary, be accepted as proof of the particulars. 29—Staff (1) The Authority may appoint such officers and employees as it considers necessary or expedient for the purposes of this Act. (2) The Authority may enter into arrangements with one or more of the following: (a) the LGA; (b) a council; (c) the Minister administering an administrative unit of the Public Service of the State, under which, upon terms mutually arranged, the Authority makes use of the services of officers or use of facilities of the LGA, council or administrative unit. 31—Authority may charge fees (1) The Authority may charge a fee of such amount as it thinks fit in respect of any transaction entered into or thing done for the benefit of a council, prescribed local government body or other person in pursuance of this Act. (2) A fee charged under subsection (1) may be deducted from an amount payable by the Authority to the council, prescribed local government body or other person charged. 31A—Tax equivalents (1) The Treasurer may require the Authority to make payments under this section of amounts that the Treasurer determines from time to time to be equivalent in effect to income tax and other taxes or imposts that the Authority does not pay to the Commonwealth but would be liable to pay under the law of the Commonwealth if it were constituted and organised in such manner as the Treasurer determines to be appropriate for the purposes of this section as a public company. (2) Amounts determined to be payable under this section must be paid to a deposit account established with the Treasurer under section 21 of the Public Finance and Audit Act 1987 entitled the "Local Government Taxation Equivalents Fund" at times, and in a manner, determined by the Treasurer. (3) Interest, at the standard commercial rate for accounts established under section 21 of the Public Finance and Audit Act 1987, will be payable on amounts held under subsection (2) and no fees or imposts will apply with respect to the maintenance or operation of the account. (4) Amounts held under subsection (2), together with interest accrued under subsection (3), will be applied for local government development purposes recommended by the LGA and agreed to by the Minister in accordance with principles agreed between the Minister and the LGA. 32—Exemption of Authority from State taxes etc (1) The Treasurer may, by notice published in the Gazette, exempt from a tax, duty or other impost, to the extent specified in the notice, any of the following: (a) the Authority; (b) instruments to which the Authority, a council or a prescribed local government body is a party; (c) instruments which arise from or are connected with a transaction to which the Authority, a council or a prescribed local government body is a party. (2) A notice published in the Gazette pursuant to this section— (a) has effect according to its terms; and (b) may be varied or revoked by a further such notice. 32A—Evidentiary provision In any legal proceedings, an apparently genuine document purporting to be a certificate signed by the Presiding Member of the Board (or if the Presiding Member is unavailable, the Deputy Presiding Member) certifying that a decision is a decision of the Board made in accordance with this Act will be accepted as proof of the matters stated in the certificate in the absence of proof to the contrary. 33—Accounts and audit (1) The Authority must— (a) keep proper accounts of its financial affairs; and (b) have annual financial statements prepared in respect of each financial year; and (c) ensure that its financial statements and reports fairly represent the financial position of the Authority; and (d) comply with any instructions of the Treasurer under the Public Finance and Audit Act 1987. (2) The Auditor-General may at any time audit the accounts of the Authority and must audit the annual financial statements. (3) For the purposes of an audit, the Auditor-General may exercise in relation to the accounts of the Authority and the members and staff of the Authority the powers vested in the Auditor-General under the Public Finance and Audit Act 1987 in respect of accounts, accounting information and accounting officers. 34—Annual report (1) The Authority must, on or before 30 September in each year, deliver to the Minister, each council and the LGA a report upon the administration of this Act during the period of twelve months ending on the preceding 30 June. (2) The report must— (a) incorporate the audited financial statements of the Authority for the relevant period; and (b) contain any other information required by this Act, and may contain such other reports or information as the Authority thinks fit. (3) The Minister must cause a copy of the report to be laid before each House of Parliament within 12 sitting days after his or her receipt of the report. 35—Activities with prescribed bodies (1) The Authority must, on or before 30 September in each year, deliver a special report to the Minister on the nature and scope of its business with prescribed local government bodies. (2) If it appears to the Authority that a body that is a prescribed local government body by virtue of being prescribed by the regulations should no longer be so prescribed, the Authority must report to the Minister on the matter. 36—Regulations The Governor may make such regulations as are contemplated by, or necessary or expedient for the purposes of, this Act. 37—Rules of the Authority (1) Subject to this Act, the Authority must have rules that— (a) make provision for the nomination and election of persons as elected members of the Board; and (b) set out— (i) the procedures for placing items of business on the agenda for general meetings of the Authority; and (ii) the procedures to be followed at general meetings of the Authority. (2) The Authority may— (a) make provision in its rules for matters other than those referred to in subsection (1); and (b) amend its rules in accordance with procedures set out in the rules. (3) However, the rules, and any amendments to the rules, have no force or effect unless and until— (a) approved at a general meeting of the Authority; or (b) approved by a majority of the members of the Authority in accordance with a procedure set out in the rules. (4) The annual report must include details of any amendments made to the rules during the relevant financial year. Legislative history Notes • Please note—References in the legislation to other legislation or instruments or to titles of bodies or offices are not automatically updated as part of the program for the revision and publication of legislation and therefore may be obsolete. • Earlier versions of this Act (historical versions) are listed at the end of the legislative history. • For further information relating to the Act and subordinate legislation made under the Act see the Index of South Australian Statutes or . Principal Act and amendments New entries appear in bold. Year No Title Assent Commencement 1983 106 Local Government Finance Authority Act 1983 22.12.1983 26.1.1984 (Gazette 26.1.1984 p176) 1986 59 Local Government Finance Authority Act Amendment Act 1986 2.10.1986 2.10.1986 1988 46 Local Government Finance Authority Act Amendment Act 1988 5.5.1988 23.6.1988 (Gazette 23.6.1988 p1980) 1996 1 Local Government Finance Authority (Review) Amendment Act 1996 7.3.1996 1.6.1996 (Gazette 2.5.1996 p2396) 1998 51 Local Government Finance Authority (Board Membership) Amendment Act 1998 3.9.1998 3.9.1998 1999 33 Financial Sector Reform (South Australia) Act 1999 17.6.1999 Sch (item 34)—1.7.1999 being the date specified under s 3(16) of the Financial Sector Reform (Amendments and Transitional Provisions) Act (No. 1) 1999 of the Commonwealth as the transfer date for the purposes of that Act: s 2(2) Provisions amended Certain textual alterations were made to this Act by the Commissioner of Statute Revision when preparing the reprint of the Act that incorporated all amendments in force as at 1 April 1987. A Schedule of these alterations was laid before Parliament on 31 March 1987. New entries appear in bold. Entries that relate to provisions that have been deleted appear in italics. Provision How varied Commencement Pt 1