Local Government (South Gippsland Shire Council) Act 2019

Dismissal is the central concept: the council is removed mid term without a statutory process of inquiry or show cause, by a single Act of Parliament. This is a legislative override of the usual electoral accountability cycle. Order in Council is defined in section 4 as the first Order made under section 6 and any further Order made under that section. It is the mechanism through which the Governor in Council appoints administrators, with the Minister’s recommendation but no further consultation requirement. Administrator or panel is the appointed body that constitutes the council. The administrator(s) may be one person or several; if several, one is appointed chairperson (section 6(b)). The administrator performs all functions powers and duties of the council, of a councillor, and (if chairperson) of the mayor (section 7(a) (c)). Continuity is preserved by section 5(3): the council does not dissolve; its legal identity continues, but its composition changes. General election is set for a specific date, overriding the ordinary electoral provisions. Reading as part of the Local Government Acts means the ordinary local government rules apply unless this Act expressly overrides them; the only express override is the election date. The Act does not create new local government functions; it merely substitutes the decision maker. Vacancy provisions allow the Governor in Council to fill administrator vacancies or appoint temporary replacements during incapacity (section 6(c) and (d)). Representation substitution under section 9 is a notable concept: any Act, regulation, by law, local law, instrument, or document that provides for the mayor or a councillor to be a member of or represented on a board, council, committee, commission, or other body, or to be a trustee, or a member or director of a company, is read as providing for an administrator or another person appointed by the administrator to fill that role while the Order in Council is in force. This automatically shifts all ex officio positions to the administrator without requiring amendment to each separate instrument.

The most directly affected group is the elected councillors of South Gippsland Shire. They lost their offices on the day after royal assent, before the end of their term, without compensation or recall. Their statutory rights to attend meetings, vote on council business, and represent residents ended immediately. The administrator or panel of administrators appointed under the Order in Council assumes all these roles; their remuneration is fixed by the Minister and paid by the council (section 7(e)), which means ratepayers bear the cost of the replacement governance. The administrators are prohibited from engaging in outside paid employment without the Minister’s consent (section 7(f)(i)), which may limit the pool of willing candidates or impose opportunity costs on those appointed. The council’s staff and chief executive officer must now take direction from the administrator(s) rather than from elected councillors. Organisations that had ex officio representation from the mayor or a councillor under any document must accept the administrator or the administrator’s nominee in that role during the Order in Council’s operation (section 9). This includes statutory boards, committees, trusts, and even corporate director positions. Ratepayers and residents are indirectly affected: they lose direct electoral control over their local government for roughly two and a half years. They cannot vote out an unpopular administrator, though they can make representations. Businesses that engage with the council on planning, procurement, or licensing may face altered decision making processes and priorities from an appointed administrator who does not face the electorate. The Minister and the Governor in Council have discretionary power over who is appointed, with no statutory criteria for suitability or local connection, so the decision may be influenced by state political considerations rather than local need.

The administrator(s) have the duty to perform all the functions powers and duties of the South Gippsland Shire Council and of a councillor, and (for a chairperson) of the mayor (section 7(a) (c)). These are not merely aspirational; the Act states the performance must be treated as if performed by the council itself or by a councillor or mayor, giving the administrator’s actions full legal force. The administrator has the right to be paid remuneration, allowances, and to have conditions fixed by the Minister, with those costs borne by the council (section 7(e)). The administrator may resign by written notice to the Governor in Council (section 7(f)(ii)). The office becomes vacant if the administrator becomes bankrupt, dies, is removed, resigns, is convicted of an indictable offence (or an equivalent offence if committed interstate), or becomes incapable of performing the duties (section 7(g)). These are standard grounds but do not include removal for incompetence or failure to follow council policy. The Minister’s power to set conditions of appointment is broad and not subject to consultation or review; conditions could be substantive such as directions on how to exercise discretion. The administrator’s right to engage in paid employment is severely restricted: section 7(f)(i) requires the Minister’s consent for any paid employment outside the duties of the office. This goes beyond typical conflict of interest rules for public officers; it is a prohibition with a discretionary waiver. Councillors who were dismissed have no statutory right to contest the dismissal, to seek reinstatement, or to compensation. The Chief Executive Officer has a duty under section 10(2) to summon the first meeting of the newly elected council within 14 days of the declaration of the general election result, which then ends the administrator regime. Entities that have representation entitlements under section 9 must accept the administrator or the administrator’s nominee in place of the former councillor; they have no right to reject that nominee.

The Act itself does not create any specific criminal offences or pecuniary penalties for non compliance by private persons. The enforcement mechanisms are indirect. The administrator’s office becomes vacant automatically upon certain events such as bankruptcy, conviction for an indictable offence, or incapacity (section 7(g)). This is a passive enforcement: it operates by status rather than by prosecution. Removal (section 7(g)(iii)) appears to be the Governor in Council’s power; the Act does not specify grounds for removal, so it could be at pleasure or for cause, depending on any conditions set under section 7(e). A defect in the administrator’s appointment does not invalidate the appointment or anything done under it (section 7(d)). This provision removes any remedy a person might have had for challenging the lawfulness of the administrator’s actions based on appointment irregularities. It is a statutory ratification clause that immunises the appointment process from judicial review on procedural grounds. Non compliance by the council’s staff or the administrator with the terms of the Act could theoretically be addressed through the general law (breach of contract, breach of statutory duty, or judicial review of decisions), but the Act does not provide a special enforcement mechanism. The Minister, who sets conditions and fixes remuneration, has no explicit enforcement powers under the Act. The South Gippsland Shire Council, now constituted by the administrator, remains subject to the normal enforcement provisions of the Local Government Acts, including those relating to financial management, conflict of interest, and decision making. However, the administrator is not a councillor for the purposes of those Acts, so some provisions may apply differently. Ratepayers and residents who are aggrieved by administrator decisions retain the usual rights to seek review under the Local Government Acts or the Administrative Law Act 1978, but the Act gives them no special additional path for redress.

Section 3 directs that the Act must be read and construed as if it were part of the Local Government Act 1989 and the Local Government Act 2020. This is a legislative fiction that integrates this single council Act into the general local government framework for interpretation purposes. It means references in the 1989 or 2020 Acts to “the council” or “councillors” are to be read as including the administrator constituted council, unless a contrary intention appears. The election date override in section 10(1) expressly displaces section 31(1) of the 1989 Act and section 257(1) of the 2020 Act, which would otherwise set a different election cycle. No other provisions of the general Acts are expressly overridden, but the administrator regime will necessarily modify how they operate in practice. Section 9 is the broadest interaction provision: it supresses the operation of any Act, regulation, rule, by law, local law, instrument, or document that provides for the mayor or a councillor of South Gippsland Shire to be a member of or represented on a board, council, committee, commission or other body, or to be a trustee, or to be a member or director of a company. During the Order in Council’s operation, those provisions are read as if they provided for an administrator or another person appointed by the administrator or panel. This has sweeping effects across state and local legislation, as well as private documents if they fall within “instrument or document”. For example, if a joint board of several councils had a seat for the mayor of South Gippsland, that seat would be filled by the administrator. The administrator could also delegate that role to another person. The provision operates without requiring amendment to each underlying document, which is efficient but potentially disruptive where other parties valued the elected status of the representative. The interaction with the Interpretation of Legislation Act 1984 is noted in the endnotes: standard interpretation rules apply regarding headings, examples, notes, punctuation, and provision numbers forming part of the Act. No other interaction with Commonwealth or state specific legislation is mentioned.

The Act has been amended only once, by the Local Government Act 2020 (No. 9 of 2020), which came into operation on 6 April 2020 via a special gazette. The amendment was made by Schedule 1 item 64 of that Act. It changed section 3 to add a reference to the Local Government Act 2020 alongside the existing reference to the Local Government Act 1989, so the Act must now be read as part of both Acts. It also amended section 10(1) to add a reference to section 257(1) of the Local Government Act 2020 as an alternative provision being overridden for the election date, reflecting the replacement of the 1989 Act by the 2020 Act for some purposes. These were consequential amendments to keep the South Gippsland Act aligned with the new general local government framework. The Act as originally passed in 2019 had only referred to the 1989 Act. The endnote table shows that the Local Government Act 2020 received assent on 24 March 2020 and the relevant schedule commenced on 6 April 2020. No other amendments have been made. There are no amendments not yet in operation listed in the endnotes. The Act is now spent because the administrator regime expired when the general election meeting took place in 2021, but the version incorporating the 2020 amendment remains the current published version for historical and interpretive purposes.

The source contains no reference to any litigation arising from this Act. No cases are named, no court proceedings are mentioned, and the endnotes list no explanatory details on litigation. Given the Act’s narrow scope and short duration, it is plausible that no party challenged its validity or operation in court. The Act is designed to minimise litigation risk: section 5 dismisses the council by direct legislative command, which is a sovereign act not subject to judicial review on merits. Section 7(d) provides that a defect in the administrator’s appointment does not invalidate the appointment or anything done by the administrator. This removes a likely ground for challenge. The Act does not provide for councillors to appeal or seek compensation, so no litigation pathway is created. The only potential legal contest might have been an application for judicial review of the Governor in Council’s decision to make an Order in Council, or a challenge to the original Bill as inconsistent with the Constitution or the Local Government Act scheme. However, no such challenge is recorded in the Act or its endnotes. The absence of litigation history suggests the transitional regime operated without judicial disturbance. This may be because the Act was seen as a political decision with clear legislative authority, or because affected parties lacked standing or resources to litigate, or because the practical costs of challenging a two year temporary regime outweighed the potential benefits. The silence in the source material means any discussion of litigation would be speculation; the ground must be confined to the known absence of recorded cases.

The administrator’s outside employment restriction (section 7(f)(i)) is a trap for unwitting appointees: it is a blanket prohibition on paid employment outside the duties of office without the Minister’s consent, which is a stricter rule than the general conflict of interest provisions that apply to councillors. A person taking the role could inadvertently breach it if they hold a directorship, consultancy, teaching position, or any other paid role. The provision covers both direct and indirect employment, so even income through a family trust or company could be caught. The Minister’s consent is discretionary and not bound by any criteria, creating legal uncertainty for the administrator. The defect validation clause in section 7(d) means that even if the Order in Council or the appointment process is procedurally flawed (e.g., not properly gazetted, Minister acted beyond power, improper delegate), the administrator’s actions remain valid. A person dealing with the council cannot object by pointing out an irregularity in the administrator’s appointment. Section 9’s wide reach into any “instrument or document” could catch private contracts, deeds of trust, partnership agreements, or company constitutions that name the mayor or a councillor as a director or trustee. The administrator can appoint a substitute person to fill that role, which may not align with the original parties’ expectations. A trust deed that required a named councillor as trustee might be read as allowing an appointee, potentially affecting the trust’s operation or the settlor’s intentions. The election date override in section 10(1) fixes the election for October 2021 regardless of whether the council’s ordinary term would have been longer or shorter. If the councillors had been elected in an earlier cycle, their terms would have been cut short; if they had been due for election in 2020, the administrator regime extended their absence. The Act does not provide for the council to resume its functions before the election, even if the administrator resigns or is removed. The Minister’s power to set remuneration (section 7(e)) is unconstrained; there is no statutory cap, no requirement to consult the council or ratepayers, and no appeal. The cost is payable by the council from rate revenue, with no offset for the saved councillor allowances. The requirement to treat the administrator’s actions as if performed by the council (section 7(a)) means that any immunity or liability that attaches to the council attaches to the administrator, but the administrator does not enjoy the same personal indemnity a councillor might have under the Local Government Act.

For a person appointed as administrator or to a panel, immediate compliance requires accepting the appointment conditions set by the Minister and ceasing any outside paid employment unless the Minister has given consent. The administrator should obtain written confirmation of the conditions and any consent in writing. They must perform all functions powers and duties of the council, councillor, and mayor (if chairperson) as if they were the elected office holders. This includes attending meetings, making decisions on delegations, setting rates, adopting budgets, approving planning permits, and entering contracts. The administrator should ensure that all acts done in that capacity are recorded as decisions of the council. They are entitled to remuneration at the rate fixed by the Minister, and should ensure invoices are submitted to the council for payment. If a vacancy occurs or the administrator becomes temporarily incapacitated, the Governor in Council must be notified to arrange a replacement. The administrator must avoid bankruptcy, criminal conviction, or incapacity, as those automatically vacate the office. For the council’s Chief Executive Officer and staff, compliance means accepting the administrator as the lawful governing body and following its directions. The CEO must summon the first meeting of the new council within 14 days of the returning officer publicly declaring the general election result in October 2021 (section 10(2)). For organisations that previously had the mayor or a councillor as an ex officio member, trustee, or director, compliance means accepting the administrator or the administrator’s nominee in that role during the Order in Council period. They should update their records and correspondence to reflect the change. They do not need to amend their governing documents because section 9 automatically reads in the replacement. If the organisation wishes to contest the substitution, it has no statutory avenue under this Act. The Minister and Governor in Council comply by making any Order in Council on the Minister’s recommendation and publishing it in the Government Gazette. The Minister should fix remuneration and conditions in writing before or at the time of appointment. The general election must be held on the fourth Saturday in October 2021, and the Victorian Electoral Commission or returning officer must conduct it accordingly.