Local Government (Moira Shire Council) Act 2023

The Act introduces five central concepts that displace ordinary local government governance. First, dismissal is the complete removal of the existing elected body without cause shown in the Act. Section 5 does not condition the dismissal on any finding of maladministration, financial failure, or breach of duty; it simply declares the council dismissed. This is a legislative act rather than a judicial or administrative determination, and no appeal mechanism is provided.

Second, the administrator or panel of administrators becomes the council. Section 7(a) states that the administrator or panel constitutes the Moira Shire Council and must perform all its functions, powers, and duties as if performed by the council itself. Under s 7(b) the administrator performs all the functions of a councillor; under s 7(c) the administrator or the chairperson of a panel performs all the functions of the mayor. The appointments are made by Order in Council on the Minister’s recommendation (s 6). Conditions may be attached to the appointment (s 7(a)–(c) uses the phrase “subject to any conditions of the administrator’s appointment or administrators’ appointments”). The administrator is entitled to remuneration and allowances fixed by the Minister, paid by the council (s 7(e)). An administrator cannot engage in paid employment outside the office without the Minister’s consent (s 7(f)(i)), may resign by written notice to the Governor in Council (s 7(f)(ii)), and the office becomes vacant on bankruptcy, death, removal, resignation, conviction of an indictable offence, or incapacity (s 7(g)). The Minister thus controls remuneration, outside work, and the conditions of appointment, making the administrator an executive appointee rather than a locally accountable official.

Third, the Order in Council is the instrument that brings the administrator regime into force. Section 3 defines it as the first Order in Council made under s 6 and any further Order in Council under that section. The first Order in Council takes effect on a date it specifies (s 8). The Order in Council expires when the council meeting summoned after the 2028 election starts (s 10(3)). This sunset mechanism ensures the administrator regime is temporary, but the interval is five and a half years from the Act’s commencement on 10 March 2023.

Fourth, the second general election is a specific override of the standard electoral cycle. Section 10(1) fixes the election date as the fourth Saturday in October 2028, displacing the general election timing that would otherwise apply under the Local Government Act 2020. The chief executive officer must summon a council meeting within 14 days after the election result is declared (s 10(2)). The Order in Council expires when that meeting starts (s 10(3)), restoring ordinary council governance. There is no provision for an earlier election, so unless the Act is amended or repealed, the administrator regime continues for more than five years.

Fifth, the construction clause (s 4) requires the Act to be read as if it were part of both the 1989 and 2020 Local Government Acts. This means that interpretive principles applying to those Acts (such as purposive construction, definitions, and savings provisions) also apply to this Act, except where express provision is made. It also means that powers and duties under the general local government law continue to apply to the Moira Shire Council as reconstituted, but are now exercised by the administrator.

The Act directly affects seven identifiable groups with different stakes and exposure. Residents and ratepayers of the Moira Shire lose their elected representation. They have no vote for councillors until October 2028 and no direct say in council decisions during the administrator period. Their rates and charges continue to fund the council, including the administrator’s remuneration fixed by the Minister (s 7(e)), but they cannot remove the administrator or influence policy through the ballot box. Dismissed councillors lose their office, remuneration, and any ongoing rights or responsibilities. Section 5(2) makes removal immediate and final. No compensation, transition assistance, or right of review is provided. Former councillors may still be subject to general obligations such as confidentiality or code of conduct investigations that commenced before dismissal, but the Act is silent on that.

Council staff continue their employment, because the council as a legal entity continues under s 5(3) (“nothing in this Act affects the continuity of the Moira Shire Council”). However, their reporting lines change: the chief executive officer now reports to an administrator rather than to an elected council. Policy direction may shift, and decisions that were pending before the elected council may need to be reprioritised. Staff with contracts that involved councillor-level approval may face delays or repudiation if the administrator changes procurement or strategy. Local businesses and contractors that supply goods or services to the council face a period of uncertainty. Long-term contracts or development approvals that depended on political relationships may be reviewed. The administrator has the full power of the council (s 7(a)), which includes the power to vary or terminate contracts subject to general law. Businesses that relied on councillor patronage or advocacy lose that channel.

Community groups and non-profit organisations that received grants, in-kind support, or policy concessions from the elected council lose their political access. Advocacy strategies that involved lobbying individual councillors must be redirected to the administrator, who is a ministerial appointee with no electoral incentive to respond to local pressure. Other Victorian councils are indirectly affected by the precedent. The Act demonstrates that the Parliament can dismiss any council by special legislation, without requiring a statutory process such as a public inquiry, a show-cause procedure, or a finding by the Victorian Ombudsman or the Local Government Inspectorate. While the Act is directed at Moira Shire, it signals that the default local government accountability framework can be overridden by a simple majority vote in Parliament. This exposure may affect council borrowing costs, insurer assessments, and investor confidence in council securities or joint ventures.

The Minister and the Victorian public service are affected because they assume direct responsibility for the administration of the shire. The Minister recommends the appointment, fixes the administrator’s pay (s 7(e)), and can impose conditions on the appointment. If the administrator performs poorly, political accountability falls on the Minister rather than on local voters. The Minister may face pressure to intervene more frequently or to use the Moira model as a template for councils that are underperforming but not yet at the statutory intervention threshold.

The Act creates a set of duties for the administrator and extinguishes the rights of the elected councillors. The administrator must perform all the functions, powers, and duties of the council, a councillor, and the mayor (s 7(a)–(c)). That includes statutory duties under the Local Government Act 2020, the Public Administration Act 2004, and other relevant laws, such as financial management, procurement, planning, and community engagement. The administrator cannot evade these duties by claiming limited local knowledge, because the appointment is designed to be full and exclusive.

The administrator also has a specific negative duty: under s 7(f)(i), the administrator must not engage in any paid employment outside the office without the Minister’s consent. This includes indirect engagement through a company or trust. The provision is broad: “directly or indirectly engage in any paid employment”. It covers consultancy directorships or advisory roles that yield remuneration. The aim is to prevent conflicts of interest and ensure the administrator focuses exclusively on council business. Breach of this restriction presumably could lead to ministerial removal (s 7(g)(iii) allows removal without cause specified), but the Act does not create an offence for contravention.

The administrator has the right to remuneration and allowances fixed by the Minister, paid by the council (s 7(e)). The Minister sets both the amount and the conditions of employment. The council budget must accommodate this cost, which may crowd out other spending. The administrator may resign by written notice to the Governor in Council (s 7(f)(ii)), but the resignation does not take effect until accepted or a replacement is appointed, because the office cannot be left vacant. The office becomes vacant automatically on bankruptcy, death, removal, resignation, conviction of an indictable offence, or incapacity (s 7(g)). Removal under s 7(g)(iii) does not require a reason; the Minister can recommend removal at any time. There is no hearing requirement.

The dismissed councillors have no ongoing rights under the Act. Their term of office is terminated early with no entitlement to compensation, notice, or severance. They may retain any rights accrued before dismissal, such as entitlements under the Councillor Code of Conduct or access to legal defence for actions taken while in office, but those rights arise from general law and the Local Government Act, not this Act. The councillors also lose any right to be consulted on council decisions or to represent the council on external bodies (s 9 expressly substitutes the administrator for those roles).

The Minister has the right to recommend an Order in Council (s 6), to set conditions of appointment (s 7), and to fix remuneration (s 7(e)). The Governor in Council acts on the Minister’s recommendation; there is no requirement for parliamentary approval or public consultation. The Minister thus controls the entire appointment and conditions process, subject only to the Governor in Council’s formal assent.

The chief executive officer has a duty under s 10(2) to summon a council meeting within 14 days after the election result is declared. This is a specific statutory duty that cannot be avoided by delay or budgetary constraints. Failure to comply could expose the CEO to performance management under the Local Government Act, but the Act does not specify a penalty.

The Act contains almost no explicit penalties or enforcement mechanisms. The principal enforcement tool is the Minister’s power to recommend removal of an administrator (s 7(g)(iii): “is removed” from office). This power is not subject to any procedural criteria, such as a finding of misconduct or a report from an independent body. The Minister can remove an administrator at any time without cause. That makes the administrator highly responsive to ministerial direction, because continued tenure depends on the Minister’s satisfaction. However, the Act does not specify the consequences of removal, such as whether the administrator loses accrued remuneration or is entitled to notice. It also does not create a public reporting obligation on the Minister when a removal occurs.

The vacancy triggers in s 7(g) operate automatically. Bankruptcy, conviction of an indictable offence, death, resignation, and incapacity cause the office to become vacant. There is no requirement for a judicial finding or a ministerial declaration; the vacancy arises by operation of law. However, in practice someone must verify that the trigger event has occurred. If the administrator is convicted of an indictable offence but does not inform the Minister, the vacancy may remain unaddressed until discovered. The Act does not impose a duty on the administrator to report such events.

The chief executive officer or council staff could potentially be subject to general enforcement under the Local Government Act 2020 for failures to comply with directions or to adhere to financial controls. But the Act does not create any new offences. The administrator’s duty not to engage in outside paid employment (s 7(f)(i)) is not backed by a criminal penalty. Breach may be treated as a breach of the conditions of appointment, leading to removal, but that is discretionary. There is no provision for a fine, imprisonment, or civil penalty for breach of this duty.

Residents and ratepayers have no statutory right to challenge the administrator’s decisions under this Act. Judicial review under the general law (the Administrative Law Act 1978 or the common law) remains theoretically available for jurisdictional error or denial of procedural fairness, but the Act confers very broad powers on the administrator (“must perform all the functions, powers and duties of the Moira Shire Council”, s 7(a)), and the construction clause (s 4) treats the Act as part of the Local Government Acts, which the Supreme Court has interpreted as conferring wide discretionary powers. The chances of a successful judicial review challenge to a substantive decision are low unless the administrator acts outside the four corners of the Act or ignores a mandatory procedure in the Local Government Act 2020.

The Act does not impose any reporting or auditing obligations on the administrator that are above those that apply to an ordinary council. The administrator remains subject to the Local Government Act’s financial reporting and audit requirements, the Ombudsman Act 1973, and the Independent Broad-based Anti-corruption Commission Act 2011. But those are general laws, not specific to this Act.

Section 4 provides the central interpretive rule: “This Act must be read and construed as if it was part of the Local Government Act 1989 and the Local Government Act 2020.” The effect is that the two general local government Acts and this special Act form a single statutory scheme for the Moira Shire. Any reference in the Local Government Acts to “the council”, “a councillor”, or “the mayor” is, while the Order in Council is in force, interpreted as referring to the administrator or panel. That means the administrator steps into all statutory roles, powers, and obligations that the general law imposes on the council, including financial management duties under Part 5 of the Local Government Act 2020, planning functions under the Planning and Environment Act 1987, and public health functions under the Public Health and Wellbeing Act 2008.

Section 9 specifically overrides references in any Act, regulation, rule, by-law, local law, instrument, or document that provide for the mayor or a councillor to sit on an external body. While the Order in Council is in force, those provisions are read as if they refer to the administrator or a person appointed by the administrator. This prevents gaps in external representation. For example, if the Local Government Act or the Water Act 1989 required the Moira Shire mayor to be a member of a catchment management authority, that seat goes to the administrator instead. The section does not require amendment of the host Act; it operates as a statutory substitution.

Section 10(1) directly overrides section 257(1)(b) of the Local Government Act 2020, which sets the default timing of general elections for councils. The override is specific to Moira Shire and applies only to the second general election after the Act’s commencement. The 2028 date is fixed regardless of what the general electoral cycle would otherwise produce. This means that even if the Local Government Act 2020 is later amended to change election dates, the Moira Shire election remains on the fourth Saturday in October 2028 unless this Act is itself amended.

The Act also interacts with the Interpretation of Legislation Act 1984, as noted in the endnotes. The endnotes, explanatory memorandum, table of provisions, and other printed material do not form part of the Act (see s 36(3)(3D)(3E) of the Interpretation of Legislation Act). Only the operative sections and any headings, examples, diagrams, notes, and punctuation included by the Parliament form part of the Act. This is relevant if a dispute arises about the meaning of s 7(g) (vacancy triggers) or s 10 (election timing), because the endnotes are not authoritative.

The repeal of Part 3 (ss 11–13) on 10 March 2024 means any consequential amendments to the Local Government Act 2020 that were made by this Act are now spent or, if they were not spent, may have been removed. The table of amendments shows only that section 13 repealed Part 3 on 10 March 2024. It does not list what those sections originally contained. The user would need to consult the version of the Act as at 9 March 2024 to see the original amendments. The current version (002) as at 10 March 2024 has removed them, so the Local Government Act 2020 is no longer bearing any amendments from this Act. This may cause confusion because the Special Act still refers to consequential amendments that no longer exist.

The Act has only one amendment recorded in the table of amendments. Section 13 of the Act itself repealed Part 3 (sections 11, 12, and 13) on 10 March 2024, exactly one year after the Act received royal assent (9 March 2023). The repeal was self-executing: the Act inserted a sunset provision in section 13 that caused the repeal to occur automatically on that date. The current version (No. 002) incorporates that repeal. The endnote 2 table shows that section 13 commenced on 10 March 2023 (the day after assent) and had the effect of repealing Part 3 on 10 March 2024. This is unusual: a section that commences on one date but its operative effect occurs a year later. The Interpretation of Legislation Act 1984 permits such deferred repeals.

The content of the repealed Part 3 is not reproduced in the current version. The endnotes say “No entries at date of publication” under explanatory details, so there is no official explanation of what sections 11 and 12 contained. Based on the Act’s purpose clause (s 1(e): “to make consequential amendments to the Local Government Act 2020”), Part 3 likely amended the Local Government Act 2020 to reflect the dismissal and administrator regime, for example by adding a reference to the Moira Shire in a transitional schedule or by inserting a provision suspending certain sections for the shire during the administrator period. Because those amendments were automatically reversed on 10 March 2024, the Local Government Act 2020 now reads as if this special Act never amended it. The practical effect is that after that date, the only operative provisions of the special Act are Part 1 (preliminary) and Part 2 (ss 5–10). No further amendments are noted, and the version is current as at 10 March 2024.

The source text contains no references to litigation. There are no cases cited in the Act itself, in the endnotes, or in the table of amendments. The explanatory details say “No entries at date of publication”, which suggests that as at the date the version was compiled (10 March 2024), no judicial decisions interpreting the Act had been noted by the parliamentary counsel. It is possible that challenges were brought but not yet determined, or that challenges are ongoing. The Act has a very narrow application (only one council) and a relatively short period of operation (five years until 2028), which reduces the likelihood of sustained litigation. However, several potential grounds for challenge exist and may materialise before 2028.

A dismissed councillor could argue that the Act breaches the implied freedom of political communication in the Commonwealth Constitution, because it removes elected representatives without any stated justification and without providing a process for recall or review. The High Court’s decisions in Lange v Australian Broadcasting Corporation (1997) and McCloy v New South Wales (2015) recognise that political communication includes the ability to elect representatives. But the Commonwealth Constitution does not guarantee a right to local government; local government is a state creation (Melbourne Corporation v Commonwealth (1947)). The implied freedom has been held to apply to state legislation that burdens federal political communication, but a challenge would need to show that the dismissal burdens communication about federal matters. That is a high bar.

A ratepayer could challenge the Act on the ground that it discriminates against residents of Moira Shire by denying them the right to vote for council for five years, while residents of other shires have regular elections. The argument would invoke the implied right to vote (Roach v Electoral Commissioner (2007)) but that right has been confined to Commonwealth elections. State legislative action on local government is generally not constrained by the Commonwealth Constitution in that way. A challenge under the Victorian Constitution (Constitution Act 1975) would face the difficulty that Parliament is supreme; the Act does not infringe on any entrenched provision.

A judicial review challenge to the administrator’s decisions is the most likely form of litigation. The administrator’s powers are broad, and any decision that affects property rights (such as a planning refusal or a compulsory acquisition) could be challenged on jurisdictional grounds. The administrator would need to show that the decision was within the scope of s 7(a) and that any procedural requirements under the Local Government Act 2020 were met. The administrative law principle that a decision-maker must not fetter discretion (save that the administrator is subject to ministerial conditions of appointment) could be argued. Given the Act’s construction clause, the courts would likely apply the same standards of review as for an ordinary council decision. The administrator is not immune from judicial review.

Several features of the Act could catch unwary practitioners, local government officers, or residents. First, the no-cause removal power in s 7(g)(iii) means the administrator serves entirely at the Minister’s pleasure. There is no requirement for a finding of misconduct, a performance review, or an independent inquiry before removal. The administrator may thus be inclined to implement ministerial policy preferences even if they conflict with local priorities, because resisting could cost them their job. The Act does not create a statutory duty for the administrator to act independently or in the interests of the shire; it merely says they must perform all functions of the council. That duty is owed to the council as an entity, but the council in its corporate form cannot enforce the duty against the administrator. The only practical check is the Minister.

Second, the deferred election date of October 2028 means the administrator regime lasts over five years. That is a long period for a local community to go without elected representation. If the Minister changes, the new Minister may have different priorities for the shire. The Act does not allow for an earlier election even if the administrator requests it or if the community petitions. The only way to bring forward the election is to repeal or amend this Act. That requires a full parliamentary process. A future government may be reluctant to do so, especially if the administrator is unpopular but the government does not control the upper house.

Third, the construction clause (s 4) may create interpretive difficulties. It says the Act must be read as if it were part of both the 1989 and 2020 Local Government Acts. Those Acts have different transitional provisions, savings clauses, and repeal schedules. If a provision in one of those Acts conflicts with a provision in this Act, a court must decide which prevails. The general rule is that a later specific Act overrides an earlier general Act, but s 4 suggests the special Act is to be read as part of the general Acts, which could be argued to subordinate it to the general Acts in case of ambiguity. Practitioners should not assume that the general Act’s definitions automatically apply; they must check that the definitions are not displaced by this Act’s narrower definitions (only one definition in s 3: “Order in Council”).

Fourth, the repeal of Part 3 (consequential amendments) on 10 March 2024 may leave a gap. If the consequential amendments to the Local Government Act 2020 were necessary for the smooth operation of the administrator regime, their removal could create technical problems. For example, if an amendment had inserted a reference to “administrator” into the definition of “council” in the Local Government Act 2020, that reference is now gone. The special Act’s s 7(a) says the administrator constitutes the council for the purposes of this Act, but other Acts may not recognise the administrator as the council unless they incorporate s 4 of this Act. A planning panel or a water authority that relies on the Local Government Act 2020 definition may require legal advice to confirm that the administrator has the same standing as an elected council.

Fifth, the no outside employment provision (s 7(f)(i)) is broad and includes indirect engagement. An administrator who is a partner in a law firm or a director of a company would need the Minister’s consent to continue in that role, even if the role is unpaid. The phrase “paid employment” suggests that pro bono directorships without remuneration may not be captured, but if the director receives any benefit (such as travel allowances or share options), that could be caught. The provision may deter experienced professionals from accepting the role, because they would have to sever existing income streams.

Sixth, the Act contains no transitional provisions for contracts, employees, or pending decisions. Council decisions that were partially completed at the date of dismissal, such as a tender evaluation or a planning application that had been recommended for approval but not yet confirmed, would need to be taken up by the administrator. The administrator has no obligation to continue the previous council’s policies. A business that relied on a council resolution may find the resolution is rescinded or re-opened. There is no compensation mechanism for losses caused by the change of control.

Compliance with the Act is primarily the responsibility of the appointed administrator and the council staff. For the administrator, the first step is to formally accept the appointment and any conditions set by the Minister. The administrator must then assume all functions, powers, and duties of the council, a councillor, and the mayor (s 7(a)–(c)). This includes taking control of council assets, staff, and records, and ensuring that all statutory obligations under the Local Government Act 2020 (financial management, procurement, planning, reporting) are met. The administrator should also seek the Minister’s written consent before engaging in any paid employment outside the office (s 7(f)(i)), and must not accept any such employment without that consent. The administrator must keep the Minister informed of any changes in circumstances that could trigger a vacancy (s 7(g)), such as bankruptcy, criminal charges, or incapacity. The administrator should also comply with any conditions attached to the appointment, which may include reporting requirements, community consultation obligations, or restrictions on certain decisions.

For council staff, compliance means accepting the administrator as the lawful decision-maker. All reports, recommendations, and approvals that would previously have gone to an elected councillor or committee should now be directed to the administrator or, if a panel is appointed, to the chairperson. Staff must update their internal delegation manuals and financial authorisation systems to reflect that the administrator holds all delegations that were previously held by the mayor and councillors. Staff should also review all contracts and agreements that refer to the mayor or councillors, and ensure that those references are interpreted as references to the administrator (by operation of s 9). If any external body requires the mayor to serve as a member, the administrator should appoint a person to that role or take up the position personally.

For the chief executive officer, compliance requires summoning a meeting of the council within 14 days after the declaration of the 2028 election result (s 10(2)). The CEO must ensure that the meeting is properly convened, that the administrator regime ends when that meeting starts (s 10(3)), and that the elected councillors can assume office smoothly. The CEO should also ensure that the council’s electoral roll and voting arrangements are ready for the 2028 election, and that the election manager (appointed under the Local Government Act 2020) is fully informed of the special election date.

For residents, ratepayers, and local businesses, compliance means recognising that the administrator has full authority to make decisions that affect them. Requests for information, complaints, or submissions should be directed to the administrator through the council’s ordinary channels. There is no special avenue for challenging administrator decisions beyond the usual complaints mechanisms (Victorian Ombudsman, Local Government Inspectorate, or judicial review). Businesses with existing contracts with the council should monitor the administrator’s decisions for any changes to payment terms, service levels, or performance standards. They should seek legal advice if the administrator attempts to repudiate or vary a contract without cause.

For other Victorian councils and their advisors, the Act serves as a cautionary precedent. To avoid a similar outcome, councils should ensure they comply with all statutory duties, maintain robust financial management, and avoid conduct that could trigger ministerial concern. Lobbying by ratepayers or opposition parties for dismissal of a council is now a realistic possibility; councils should be aware that the Parliament can act swiftly and without the procedural safeguards that apply to other forms of local government intervention. The Act does not require a public inquiry, a show-cause process, or a finding from the Victorian Ombudsman. Therefore, all councils operate under the shadow of potential legislative dismissal. Compliance with this Act for other councils is really about preventing its application to them: strict adherence to the Local Government Act 2020, transparent decision-making, and proactive engagement with the Minister and the department.