Western Australia
Local Government Act 1995
Western Australia
Local Government Act 1995
CONTENTS
Part 1 — Introductory matters
1.1. Short title 2
1.2. Commencement 2
1.3. Content and intent 2
1.4. Interpretation 3
1.5. Descriptions in italics not part of the law 8
1.6. Crown not generally bound 8
1.7. Local public notice 9
1.8. Statewide public notice 9
1.9. Decisions by absolute majority 9
1.10. Decisions by special majority 10
Part 2 — Constitution of local government
Division 1 — Districts and wards
2.1. State divided into districts 11
2.2. Districts may be divided into wards 12
2.3. Names of districts and wards 12
2.4. District to be a city, town or shire 13
Division 2 — Local governments and councils of local governments
2.5. Local governments created as bodies corporate 14
2.6. Local governments to be run by elected councils 14
2.7. The role of the council 15
2.8. The role of the mayor or president 15
2.9. The role of the deputy mayor or deputy president 16
2.10. The role of councillors 16
Division 3 — How offices on the council are filled
2.11. Alternative methods of filling the office of mayor or president 16
2.12. Electors may propose change of method 17
2.12A. Procedure to change method to election by council 18
2.13. When a new method takes effect 19
2.14. Extension of term in certain cases 20
2.15. Filling the office of deputy mayor or deputy president 20
2.16. Filling the offices of the councillors 20
Division 4 — Membership and size of the council
2.17. The members of council 20
2.18. Fixing and changing the number of councillors 21
Division 5 — Qualifications for holding office on the council
2.19. Qualifications for election to council 22
2.20. Members of parliament disqualified for election 22
2.21. Disqualification because of insolvency 23
2.22. Disqualification because of convictions 23
2.23. Disqualification because of membership of another council 24
2.24. Disqualification because of misapplication of funds or property 24
2.25. Disqualification for failure to attend meetings 24
2.26. Election to council terminates employment with local government 25
2.27. Procedure to determine qualification to retain membership of council 25
Division 6 — Terms of office on the council and vacation of office
2.28. Days on which terms begin and end 27
2.29. Oath or affirmation of allegiance and declaration 31
2.30. Terms extended if ordinary elections delayed 31
2.31. Resignation 31
2.32. How extraordinary vacancies occur in offices elected by electors 32
2.33. Extraordinary vacancy on election to a parliament 32
2.34. How extraordinary vacancies occur in offices elected by the council 33
2.35. Vacancies on restructure of districts, wards or membership33
2.36. Vacancies on dismissal of council 33
2.36A. Power to declare offices vacant if district is to be abolished33
2.37. Power to declare offices vacant 34
2.37A. Vacancies in all offices for any other reason 35
Division 7 — Commissioners
2.38. The function of a commissioner 35
2.39. Appointment of commissioner 36
2.40. Joint commissioners 36
2.41. Appointment, tenure, meetings etc. 36
2.42. Commissioner to take oath etc. 36
2.43. Applicability of certain provisions of this Act 37
Division 8 — Local Government Advisory Board
2.44. Establishment of Advisory Board 37
2.45. Functions of Advisory Board 37
Part 3 — Functions of local governments
Division 1 — General
3.1. General function 39
3.2. Relationship to State Government 39
3.3. Act not to affect Crown’s rights concerning alienated land 40
3.4. Functions may be legislative or executive 40
Division 2 — Legislative functions of local governments
Subdivision 1 — Local laws made under this Act
3.5. Legislative power of local governments 40
3.6. Places outside the district 41
3.7. Inconsistency with written laws 41
3.8. Local laws may adopt codes etc. 41
3.9. Model local laws 42
3.10. Creating offences and prescribing penalties 42
Subdivision 2 — Local laws made under any Act
3.11. Subdivision applies to local laws made under any Act 43
3.12. Procedure for making local laws 43
3.13. Procedure where significant change in proposal 45
3.14. Commencement of local laws 45
3.15. Local laws to be publicized 46
3.16. Periodic review of local laws 46
3.17. Governor may amend or repeal local laws 47
Division 3 — Executive functions of local governments
Subdivision 1 — Performing executive functions
3.18. Performing executive functions 47
3.19. Places to be regarded as within the district 48
3.20. Performing functions outside the district 48
3.21. Duties when performing functions 49
3.22. Compensation 50
3.23. Arbitration 51
Subdivision 2 — Certain provisions about land
3.24. Authorising persons under this Subdivision 51
3.25. Notices requiring certain things to be done by owner or occupier of land 51
3.26. Additional powers when notices given 52
3.27. Particular things local governments can do on land that is not local government property 53
Subdivision 3 — Powers of entry
3.28. When this Subdivision applies 54
3.29. Powers of entry are additional 54
3.30. Assistants and equipment 54
3.31. General procedure for entering property 55
3.32. Notice of entry 55
3.33. Entry under warrant 55
3.34. Entry in an emergency 56
3.35. Purpose of entry to be given on request 57
3.36. Opening fences 57
Subdivision 4 — Impounding goods involved in certain contraventions
3.37. Contraventions that can lead to impounding 58
3.38. Definitions 58
3.39. Power to remove and impound 59
3.40. Vehicle may be removed if goods to be impounded are in or on the vehicle 59
3.40A. Abandoned vehicle wreck may be taken 60
3.41. Notice to collect impounded perishable goods 61
3.42. Impounded non‑perishable goods 61
3.43. Court may confiscate impounded non‑perishable goods 61
3.44. Notice to collect goods if not confiscated 62
3.45. Notice to include warning 62
3.46. Goods may be withheld until costs paid 62
3.47. Disposing of confiscated or uncollected goods 62
3.47A. Disposal of sick or injured animals 64
3.48. Recovery of impounding expenses 64
Subdivision 5 — Certain provisions about thoroughfares
3.50. Closing certain thoroughfares to vehicles 65
3.50A. Partial closure of thoroughfare for repairs or maintenance 66
3.51. Affected owners to be notified of certain proposals 67
3.52. Public access to be maintained and plans kept 68
Subdivision 6 — Various executive functions
3.53. Control of certain unvested facilities 68
3.54. Reserves under control of a local government 69
3.55. Acquisition of land 70
3.56. Tidal waters 70
3.57. Tenders for providing goods or services 70
3.58. Disposing of property 70
3.59. Commercial enterprises by local governments 72
3.60. No capacity to form or acquire control of body corporate 75
Division 4 — Regional local governments
3.61. Establishing a regional local government 75
3.62. Constitution and purpose of a regional local government 76
3.63. Dissolution or partial dissolution of a regional local government 76
3.64. What the establishment agreement is to contain 77
3.65. Amendment of establishment agreement 78
3.66. Application of enabling Acts to a regional local government78
3.67. Inconsistency between regional and other local laws 79
3.68. Other arrangements not affected 79
Part 4 — Elections and other polls
Division 1 — Preliminary
4.1. Definitions 80
4.1A. Conflict with Commonwealth or State election or referendum 81
4.1B. Polling day may be changed where conflict with Commonwealth or State election or referendum82
Division 2 — Inaugural elections
4.2. Inaugural elections 83
4.3. Polling day for inaugural election 83
Division 3 — Ordinary elections
4.4. Ordinary elections 83
4.5. Frequency of ordinary elections 83
4.6. Election day for ordinary elections 84
4.7. Ordinary elections day usually the third Saturday in October84
Division 4 — Extraordinary elections
4.8. Extraordinary elections 85
4.9. Election day for extraordinary election 85
4.10. Extraordinary election can be held before a resignation has taken effect 86
Division 5 — Other elections
4.11. Elections after restructure of districts, wards or membership86
4.12. Elections after reinstatement of council 86
4.13. Elections after all members’ offices become vacant 86
4.14. Elections after council is dismissed 87
4.15. Fresh election after election declared invalid 87
Division 6 — Postponement and consolidation of elections
4.16. Postponement of elections to allow consolidation 87
4.17. Cases in which vacant offices can remain unfilled 88
4.18. Certain elections to be held as one 89
Division 7 — Provisions about electoral officers and the conduct of elections
4.19. The returning officer 90
4.20. CEO to be returning officer unless other arrangements are made 90
4.21. Deputy returning officers 91
4.22. Returning officer to conduct elections 91
4.23. Returning officer’s functions 91
4.24. Electoral Commissioner’s functions 92
4.25. Access to information 92
4.26. Delegation 92
4.27. Regulations about electoral officers and the conduct of elections 93
4.28. Fees and expenses 93
Division 8 — Eligibility for enrolment
4.29. Eligibility of residents to be enrolled 94
4.30. Eligibility of non‑resident owners and occupiers to be enrolled 94
4.31. Rateable property: ownership and occupation 94
4.32. How to claim eligibility to enrol under section 4.30 96
4.33. Expiry of claim of eligibility to enrol under section 4.30 97
4.34. Accuracy of enrolment details to be maintained 98
4.35. Decision that eligibility to enrol under section 4.30 has ended98
Division 9 — The electoral process
4.36. Application and definitions 99
4.37. New roll for each election 99
4.38. What the roll consists of 100
4.39. Close of enrolments 100
4.40. Residents roll 101
4.41. Owners and occupiers roll 101
4.42. Supply of rolls to returning officer, members and candidates102
4.43. Correction of rolls 102
4.44. One enrolment per roll 103
4.45. Failure to comply with time limits as to preparation of rolls103
4.46. Fresh roll may be required 103
4.47. Call for nominations 104
4.48. Eligibility to be a candidate 104
4.49. How to make an effective nomination 105
4.50. How deposits are dealt with 105
4.51. Rejection of nomination 105
4.52. Exhibition of candidates’ details and profiles 106
4.53. Cancellation of nominations 107
4.54. Nominations to be declared 108
4.55. Same number of candidates as vacancies 108
4.56. More candidates than vacancies 108
4.57. Less candidates than vacancies 108
4.58. Death of candidate after close of nominations 109
4.59. Regulations about candidates 109
4.60. Voting by electors 110
4.61. Choice of methods of conducting the election 110
4.62. Polling places required 111
4.63. Appointment of presiding and other officers 112
4.64. Public notice about the election 112
4.65. Right to vote 112
4.66. One vote for each elector 112
4.67. Where to vote in person 113
4.68. When to vote 113
4.69. How to vote 114
4.70. Presiding officer to maintain order at polling place 114
4.71. Regulations about voting procedure 114
4.72. Outcome of election to be determined 115
4.73. Procedure when a person is a candidate in 2 elections 116
4.74. How votes are counted 117
4.75. Giving effect to the elector’s wishes 117
4.76. Review of decisions on ballot papers 117
4.77. Returning officer to declare result 117
4.78. Order of retirement of councillors 117
4.79. Report to Minister 118
Division 10 — Validity of elections
4.80. Complaints about the result of an election 118
4.81. Complaints to go to a Court of Disputed Returns 119
4.82. No appeal 119
4.83. Certain defects do not affect an election 119
4.84. Regulations about retention and availability of electoral papers 120
Division 11 — Electoral offences
4.85. Bribery and undue influence 120
4.86. Breach or neglect by officers 121
4.87. Printing and publication of electoral material 122
4.88. Misleading, false or defamatory statements 122
4.89. No canvassing in or near polling places 123
4.90. False statements 124
4.91. Offences relating to nomination papers, ballot papers and ballot boxes 124
4.92. Offences relating to postal votes 125
4.93. Interference with electors: infringement of secrecy 125
4.94. Other electoral offences 126
4.95. Attempts to commit offences 126
4.96. Investigation of electoral misconduct 126
4.97. Prosecutions 127
4.98. Criminal Code not to apply 127
Division 12 — Polls and referendums
4.99. Election procedures to apply to polls and referendums 128
Part 5 — Administration
Division 1 — Introduction
5.1. Interpretation of Part 5 129
5.2. Administration of local governments 129
Division 2 — Council meetings, committees and their meetings and electors’ meetings
Subdivision 1 — Council meetings
5.3. Ordinary and special council meetings 130
5.4. Calling council meetings 130
5.5. Convening council meetings 130
5.6. Who presides at council meetings 130
5.7. Minister may reduce number for quorum and certain majorities 131
Subdivision 2 — Committees and their meetings
5.8. Establishment of committees 131
5.9. Types of committees 132
5.10. Appointment of committee members 132
5.11. Tenure of committee membership 133
5.12. Election of presiding members and deputies 134
5.13. Functions of deputy presiding members 135
5.14. Who acts if no presiding member 135
5.15. Reduction of quorum for committees 135
5.16. Delegation of some powers and duties to certain committees135
5.17. Limits on delegation of powers and duties to certain committees 136
5.18. Register of delegations to committees 137
Subdivision 3 — Matters affecting council and committee meetings
5.19. Quorum for meetings 137
5.20. Decisions of councils and committees 137
5.21. Voting 138
5.22. Minutes of council and committee meetings 138
5.23. Meetings generally open to the public 139
5.24. Question time for the public 140
5.25. Regulations about council and committee meetings and committees 140
Subdivision 4 — Electors’ meetings
5.26. Definition 142
5.27. Electors’ general meetings 142
5.28. Electors’ special meetings 142
5.29. Convening electors’ meetings 143
5.30. Who presides at electors’ meetings 143
5.31. Procedure for electors’ meetings 144
5.32. Minutes of electors’ meetings 144
5.33. Decisions made at electors’ meetings 144
Division 3 — Acting for the mayor or president
5.34. When deputy mayors and deputy presidents can act 144
5.35. Who acts if no mayor, president or deputy 145
Division 4 — Local government employees
5.36. Local government employees 146
5.37. Senior employees 147
5.38. Annual review of certain employees’ performances 147
5.39. Contracts for CEO’s and senior employees 147
5.40. Principles affecting employment by local governments 149
5.41. Functions of CEO 149
5.42. Delegation of some powers and duties to CEO 150
5.43. Limits on delegations to CEO’s 150
5.44. CEO may delegate powers and duties to other employees 151
5.45. Other matters relevant to delegations under this Division 152
5.46. Register of, and records relevant to, delegations to CEO’s and employees 152
5.47. Superannuation for employees 152
5.48. Long service benefits for employees and employees of local government associations 153
5.49. Workers’ compensation arrangement 153
5.50. Payments to employees in addition to contract or award 154
5.51. Employee who nominates for election to council to take leave 155
Division 5 — Annual reports and planning
5.53. Annual reports 156
5.54. Acceptance of annual reports 157
5.55. Notice of annual reports 157
5.56. Planning for the future 157
Division 6 — Disclosure of financial interests
Subdivision 1 — Disclosure of financial interests in matters affecting local government decisions
5.59. Definitions 158
5.60. When a person has an “interest” 158
5.60A. Financial interest 158
5.60B. Proximity interest 159
5.61. Indirect financial interests 159
5.62. Closely associated persons 160
5.63. Some interests need not be disclosed 161
5.65. Members’ interests in matters to be discussed at meetings to be disclosed 163
5.66. Meeting to be informed of disclosures 164
5.67. Disclosing members not to participate in meetings 164
5.68. Councils and committees may allow members disclosing interests to participate etc. in meetings164
5.69. Minister may allow members disclosing interests to participate etc. in meetings 165
5.69A. Minister may exempt committee members from disclosure requirements 166
5.70. Employees to disclose interests relating to advice or reports167
5.71. Employees to disclose interests relating to delegated functions 167
5.72. Defence to prosecution 168
5.73. Disclosures to be minuted 168
Subdivision 2 — Disclosure of financial interests in returns
5.74. Interpretation 168
5.75. Primary returns 171
5.76. Annual returns 171
5.77. Acknowledging receipt of returns 171
5.78. Information to be disclosed in returns 172
5.79. Real property 172
5.80. Source of income 173
5.81. Trusts 174
5.82. Gifts 174
5.83. Contributions to travel 175
5.84. Interests and positions in corporations 177
5.85. Debts 177
5.86. Dispositions of property 179
5.87. Discretionary disclosures generally 180
Subdivision 3 — General
5.88. Register of financial interests 181
5.89. Offence to give false or misleading information 181
5.90. Offence to publish information in certain cases 181
Division 7 — Access to information
5.91. Interpretation 182
5.92. Access to information by council, committee members 182
5.93. Improper use of information 183
5.94. Public can inspect certain local government information 183
5.95. Limits on right to inspect local government information 185
5.96. Copies of information to be available 187
5.97. Freedom of Information Act 1992 not affected 187
Division 8 — Fees, expenses and allowances
5.98. Fees etc. for council members 187
5.98A. Allowance for deputy mayor or deputy president 189
5.99. Annual fee for council members in lieu of fees for attending meetings 189
5.99A. Allowances for council members in lieu of reimbursement of expenses 189
5.100. Payments for certain committee members 190
5.101. Payments for employee committee members 190
5.102. Expense may be funded before actually incurred 191
Division 9 — Codes of conduct
5.103. Codes of conduct 191
Part 6 — Financial management
Division 1 — Introduction
6.1. Interpretation 192
Division 2 — Annual budget
6.2. Local government to prepare annual budget 193
6.3. Budget for other circumstances 194
Division 3 — Reporting on activities and finance
6.4. Financial report 195
Division 4 — General financial provisions
6.5. Accounts and records 195
6.6. Funds to be established 196
6.7. Municipal fund 196
6.8. Expenditure from municipal fund not included in annual budget 196
6.9. Trust fund 197
6.10. Financial management regulations 198
6.11. Reserve accounts 198
6.12. Power to defer, grant discounts, waive or write off debts 199
6.13. Interest on money owing to local governments 199
6.14. Power to invest 200
Division 5 — Financing local government activities
Subdivision 1 — Introduction
6.15. Local government’s ability to receive revenue and income201
Subdivision 2 — Fees and charges
6.16. Imposition of fees and charges 202
6.17. Setting the level of fees and charges 203
6.18. Effect of other written laws 203
6.19. Local government to give notice of fees and charges 204
Subdivision 3 — Borrowings
6.20. Power to borrow 204
6.21. Restrictions on borrowing 205
6.22. Appointment of receivers 207
6.23. Powers of receivers 207
6.24. Application of money 208
Division 6 — Rates and service charges
Subdivision 1 — Introduction and basis of rating
6.25. Interpretation 208
6.26. Rateable land 209
6.27. Multiple rating 211
6.28. Basis of rates 211
6.29. Valuation and rates on mining and petroleum interests 213
6.30. Valuation of and rates on certain land 213
6.31. Phasing in of certain valuations 214
Subdivision 2 — Categories of rates and service charges
6.32. Rates and service charges 214
6.33. Differential general rates 215
6.34. Limit on revenue or income from general rates 216
6.35. Minimum payment 217
6.36. Local government to give notice of certain rates 218
6.37. Specified area rates 219
6.38. Service charges 220
Subdivision 3 — Imposition of rates and service charges
6.39. Rate record 222
6.40. Effect of amendment of rate record 222
6.41. Service of rate notice 224
Subdivision 4 — Payment of rates and service charges
6.42. Interpretation of this Subdivision 225
6.43. Rates and service charges are a charge on land 225
6.44. Liability for rates or service charges 225
6.45. Options for payment of rates or service charges 225
6.46. Discounts 227
6.47. Concessions 227
6.48. Regulation of grant of discounts and concessions 227
6.49. Agreement as to payment of rates and service charges 227
6.50. Rates or service charges due and payable 227
6.51. Accrual of interest on overdue rates or service charges 228
6.52. Rates and service charges may be apportioned 229
6.53. Land becoming or ceasing to be rateable land 229
Subdivision 5 — Recovery of unpaid rates and service charges
6.54. Interpretation of this Subdivision 230
6.55. Recovery of rates and service charges 230
6.56. Rates or service charges recoverable in court 231
6.57. Non‑compliance with procedure in Act not to prevent recovery of rate or service charge 231
6.58. Defence in special cases 231
6.59. Question of title to land not to affect jurisdiction 231
6.60. Local government may require lessee to pay rent 232
6.61. Requirement to give name of person liable 233
6.62. Application of money paid for rates and service charges 233
Subdivision 6 — Actions against land where rates or service charges unpaid
6.63. Interpretation 234
6.64. Actions to be taken 234
6.65. Power to lease — procedure 234
6.66. Effect of lease 235
6.67. Release of property after payment of arrears 235
6.68. Exercise of power to sell land 236
6.69. Right to pay rates, service charges and costs, and stay proceedings 236
6.70. Effect of changes in boundaries of local government area 237
6.71. Power to transfer land to Crown or to local government 237
6.72. Title to land sold or transferred 238
6.73. Discharge of liability on sale of land 238
6.74. Power to have land revested in the Crown if rates in arrears 3 years 239
6.75. Land to be vested in the local government 239
Subdivision 7 — Objections and review
6.76. Grounds of objection 240
6.77. Review of decision of local government on objection 241
6.78. Review of decision to refusal to extend time for objection 241
6.79. New matters raised on review 242
6.79B. Written reasons for certain determinations to be given and published 242
6.80. Objections and reviews against valuations 242
6.81. Objection not to affect liability to pay rates or service charges 243
6.82. General review of imposition of rate or service charge 243
Part 7 — Audit
Division 1 — Introduction
7.1. Interpretation of this Part 244
Division 1A — Audit committee
7.1A. Audit committee 245
7.1B. Delegation of some powers and duties to audit committees245
7.1C. Decisions of audit committees 246
Division 2 — Appointment of auditors
7.2. Audit 246
7.3. Appointment of auditors 246
7.4. Disqualified person not to be auditor 246
7.5. Approval of auditors 247
7.6. Term of office of auditor 247
7.7. Departmental CEO may appoint auditor 248
7.8. Terms of appointment of auditors 249
Division 3 — Conduct of audit
7.9. Audit to be conducted 249
7.10. Powers of the auditor 250
7.11. Power to demand production of books, etc. 251
7.12. Employees and financial institutions to furnish particulars of money received 251
Division 4 — General
7.12A. Duties of local government with respect to audits 251
7.13. Regulations as to audits 252
Part 8 — Scrutiny of the affairs of local governments
Division 1 — Inquiries by the Minister or an authorised person
8.1. Definitions 255
8.2. Minister or Departmental CEO may require information 255
8.3. Inquiries by, or authorised by, the Departmental CEO 255
8.4. Scope and duration of an authorisation 256
8.5. Powers of an authorised person 257
8.6. Power to enter property 258
8.7. Notice of entry 258
8.8. Entry under warrant 258
8.9. Exercise of powers 259
8.10. Protection from liability 259
8.11. Failure to comply with directions 259
8.12. Referral to other authorities 260
8.13. Authorised person’s report 260
8.14. Copy to be given to the local government 260
8.15. Minister can take action to ensure that recommendations are put into effect 261
8.15A. Local government may have to meet inquiry costs 261
Division 2 — Inquiries by Inquiry Panels
8.16. Minister may institute an inquiry 262
8.17. Scope and duration of inquiry 262
8.18. Local government to be informed 262
8.19. Suspension of council while inquiry is held 263
8.20. Powers of Inquiry Panel 263
8.21. Referral to other authorities 264
8.22. Report of Inquiry Panel 264
8.23. Copies to be given to the local government and made available to the public 264
8.24. Minister to decide what action to take on Inquiry Panel’s report 265
8.25. Dismissal of council by Governor 266
8.26. Suspension of council if Minister’s order not complied with266
8.27. Local government may have to meet inquiry costs 266
Division 3 — General provisions about suspension and dismissal of councils
8.28. Period of suspension: reinstatement of council 266
8.29. Effect of suspension of council 267
8.30. Appointment of commissioner while council is suspended 267
8.31. No dismissal of a council except on Inquiry Panel’s recommendation 268
8.32. When dismissal of council takes effect 268
8.33. Appointment of commissioner on dismissal of council 268
8.34. Elections following dismissal of council 268
Division 4 — Misapplication of funds and property
8.35. Interpretation 268
8.36. Authorisation 269
8.37. Powers related to inquiries 269
8.38. Liability for misapplication of funds or property 270
8.39. Action to recover amounts misapplied 270
8.40. Notice to be given before action is taken 270
8.41. Decision whether or not to proceed with action 271
8.42. Power of court to order payment 271
8.43. Disqualification of a person who has misapplied funds or property 272
8.44. Evidence of authorisation 272
Part 9 — Miscellaneous provisions
Division 1 — Objections and review
9.1. When this Division applies 274
9.2. Definitions 275
9.3. Rights of affected person extended to certain owners 275
9.4. Advice of objection and review rights 275
9.5. Objection may be lodged 276
9.6. Dealing with objection 276
9.7. Review 277
9.9. Suspension of effect of decision 277
Division 2 — Enforcement and legal proceedings
Subdivision 1 — Miscellaneous provisions about enforcement
9.10. Appointment of authorised persons 278
9.11. Persons found committing breach of Act to give name on demand 279
9.12. Obstructing person who is acting under a written law 280
9.13. Onus of proof in vehicle offences may be shifted 280
9.13A. Notice to prevent continuing contravention 281
9.14. Penalty for offence when not otherwise specified 282
Subdivision 2 — Infringement notices
9.15. Infringement notices 282
9.16. Giving a notice 283
9.17. Content of notice 283
9.18. Notice placing onus on vehicle owner 284
9.19. Extension of time 284
9.20. Withdrawal of notice 285
9.21. Benefit of paying modified penalty 285
9.22. Application of penalties collected 285
9.23. Restriction on appointment of authorised persons 285
Subdivision 3 — General provisions about legal proceedings
9.24. Commencing prosecutions 286
9.25. Time limit for prosecutions 286
9.26. Prosecuting defendant whose name unknown 287
9.27. Civil remedy not affected by proceedings for offence 287
9.28. Interests of the public 287
9.29. Representing local government in court 288
Subdivision 4 — Evidence in legal proceedings
9.30. When this Subdivision applies 288
9.31. Definitions 289
9.32. Evidence Act 1906 not excluded 289
9.33. Presumptions about certificates 289
9.34. Evidence of local laws 289
9.35. Evidence of text adopted by local laws 290
9.36. Using Gazette notice as evidence 290
9.37. Using meeting minutes as evidence 290
9.38. Evidence of documents coming from a local government 290
9.39. Proving a document given to another party 291
9.40. Using copy of rate record as evidence 291
9.41. Proving ownership, occupancy, and other things by certificate 292
9.42. Person may be alleged to be owner or occupier of land 293
9.43. Certificate of returning officer about election 293
9.44. Spouses and de facto partners presumed to be living with one another 293
9.45. Evidence of authorisation or approval 293
9.46. Things may be alleged to be property of local government 294
9.47. Proof of certain matters not required 295
9.48. Evidence of thoroughfare 295
Division 3 — Documents
9.49. Documents, how authenticated 296
9.50. Giving documents to persons, generally 296
9.51. Giving documents to local government 296
9.52. Giving documents in difficult cases 296
9.53. Other provisions about giving documents 297
9.54. Defects in documents 297
9.55. Effect of document on persons deriving title 297
Division 4 — Protection from liability
9.56. Certain persons protected from liability for wrongdoing 298
9.57. Local government protected from certain liability 299
Division 5 — Associations of local government
9.58. Constitution of associations of local government 299
Division 6 — Regulations, directions and orders
9.59. General regulations 300
9.60. Regulations that operate as local laws 301
9.61. Provisions about regulations 302
9.62. Governor may give directions as a consequence of making an order 302
9.63. Minister may give directions to resolve disputes between local governments 303
9.64. Governor may rectify omissions and irregularities 303
9.65. Orders made by the Governor or Minister 303
Division 7 — Other miscellaneous provisions
9.66. Delegation by Minister 304
9.67. Delegation by Departmental CEO 304
9.68. Local government to be notified of disposal of land 305
9.69. Land descriptions 305
Division 8 — Amendments to 1960 Act and transitional provisions
9.71. Transitional provisions 306
Schedule 2.1 — Provisions about creating, changing the boundaries of, and abolishing districts
1. Interpretation 308
2. Making a proposal 308
3. Dealing with proposals 309
4. Notice of inquiry 310
5. Conduct of inquiry 310
6. Recommendation by Advisory Board 311
7. Minister may require a poll of electors 312
8. Electors may demand a poll on a recommended amalgamation 312
9. Procedure for holding poll 312
10. Minister may accept or reject recommendation 313
10A. Recommendations regarding names, wards and representation 313
11. Transitional arrangements for orders about districts 314
Schedule 2.2 — Provisions about names, wards and representation
1. Interpretation 316
2. Advisory Board to make recommendations relating to new district 316
3. Who may make submissions about ward changes etc. 316
4. Dealing with submissions 317
5. Local government may propose ward changes or make minor proposals 317
6. Local government with wards to review periodically 318
7. Reviews 319
8. Matters to be considered in respect of wards 319
9. Proposal by local government 319
10. Recommendation by Advisory Board 320
11. Inquiry by Advisory Board 321
12. Minister may accept or reject recommendation 321
Schedule 2.3 — When and how mayors, presidents, deputy mayors and deputy presidents are elected by the council
Division 1 — Mayors and presidents
1. Definitions 322
2. When the council elects the mayor or president 322
3. CEO to preside 322
4. How the mayor or president is elected 322
5. Votes may be cast a second time 323
Division 2 — Deputy mayors and deputy presidents
6. Definitions 324
7. When the council elects the deputy mayor or deputy president 324
8. How the deputy mayor or deputy president is elected 324
9. Votes may be cast a second time 325
Division 3 — Validity of elections
10. Definition of “election” 326
11. Complaints about the validity of an election 326
12. Complaints to go to a Court of Disputed Returns 326
13. No appeal 327
14. Certain defects do not affect an election 327
15. Regulations about retention and availability of electoral papers 327
Schedule 2.4 — Provisions about commissioners
1. Eligibility for appointment 328
2. Tenure 328
3. Vacancies 328
4. Vacancies may be filled 328
5. Payment of commissioners 329
6. Procedure at meetings of joint commissioners 329
Schedule 2.5 — Provisions about the Local Government Advisory Board
1. Interpretation 330
2. Membership of Advisory Board 330
3. Deputies 330
4. Submission of lists 331
5. Term of office 331
6. Vacation of office 332
7. Meetings 332
8. Remuneration and allowances 333
9. Protection 333
10. Staff 333
11. Delegation 333
12. Powers of inquiry 335
13. Investigations 335
14. Annual report 335
15. Offences 336
Schedule 3.1 — Powers under notices to owners or occupiers of land
Division 1 — Things a notice may require to be done
Division 2 — Provisions contraventions of which may lead to a notice requiring things to be done
Schedule 3.2 — Particular things local governments can do on land even though it is not local government property
Schedule 4.1 — How to count votes and ascertain the result of an election
Schedule 4.2 — Order of retirement from office of councillors
Schedule 6.1 — Provisions relating to the phasing in of valuations
1. Phasing in of certain valuations 344
2. Phasing in of rating based on gross rental values 346
Schedule 6.2 — Provisions relating to lease of land where rates or service charges unpaid
1. Form of lease 348
2. Application of rent received 348
Schedule 6.3 — Provisions relating to sale or transfer of land where rates or service charges unpaid
1. Conditions for exercise of power of sale of land 350
2. Advertisement for sale 351
3. Power of sale 352
4. Power of local government to transfer or convey land 352
5. Application of purchase money 353
6. Receipt of the local government a discharge 355
7. If sale not completed within 12 months after commencement, proceedings lapse 355
8. Transfer of land to Crown or local government under section 6.71 355
Schedule 8.1 — Provisions about Inquiry Panels
1. Constitution of an Inquiry Panel 357
2. Term of appointment 357
3. Procedures and remuneration 358
Schedule 9.1 — Certain matters for which Governor may make regulations
1. Parking for disabled 359
2. Disturbing local government land or anything on it 360
3. Obstructing or encroaching on public thoroughfare 360
4. Separating land from public thoroughfare 360
5. Gates across public thoroughfares 360
6. Dangerous excavation in or near public thoroughfare 360
7. Crossing from public thoroughfare to private land or private thoroughfare 361
8. Private works on, over, or under public places 361
9. Protection of watercourses, drains, tunnels and bridges 362
10. Protection of thoroughfares from water damage 362
11. Works required for supply of gas or water 362
12. Wind erosion and sand drifts 363
Schedule 9.3 — Transitional provisions
Division 1 — Preliminary
1. Interpretation 364
2. Interpretation Act 1984 applies 364
3. Construction of references in written laws 364
Division 2 — Continuation of constitutional arrangements, membership and appointments
4. Former districts continue as districts 365
5. Former municipalities continue as local governments 365
6. Former councils continue as previously constituted 366
7. Wards and representation 366
8. Former method of electing mayor or president continued 367
9. Commissioners continued 367
10. Regional councils continued 367
11. Local Government Associations continued 367
Division 3 — Electoral matters
12. Enrolment of certain electors may continue 368
13. Existing provisions continue for elections before 1997 ordinary elections 368
14. Transition from annual to biennial election system 369
14A. Transition to October elections 370
Division 4 — Administration
15. Employees 371
16. Superannuation schemes — transitional and savings 371
17. Long service benefits — transitional and savings 371
18. Committees continue until first ordinary elections 372
19. Delegations continue for up to a year 372
20. First annual report 372
21. First plan for principal activities 373
22. First code of conduct 373
23. First declaration by certain designated employees 373
24. Previous records to be kept by continuing authorities 373
Division 5 — Financial management and audit
25. Rateable land exemptions 373
26. Land declared to be exempt from the payment of rates 373
27. Basis of rates 374
28. Recovery of rates 374
29. Continuation of debentures issued 374
30. Reserve accounts 375
31. Borrowing — loan polls 375
32. Auditors’ appointments 376
Division 6 — Former by‑laws, uniform general by‑laws and regulations
33. Former by‑laws continued 376
34. First periodic review as a local law 377
35. Former uniform general by‑laws continued 377
36. Former regulations continued 378
Division 7 — Miscellaneous
37. Townsites 378
38. Gates across thoroughfares in cities or towns 378
39. Deferments under Rates and Charges (Rebates and Deferments) Act 1992 378
40. Commercial enterprises 379
41. Evidence in proceedings under former provisions 379
Notes
Compilation table 380
Provisions that have not come into operation 383
Western Australia
Local Government Act 1995
An Act to provide for a system of local government in Western Australia, to amend the Local Government Act 1960 2 and for related purposes.
Part 1 — Introductory matters
What this Part is about
This Part deals with some matters that are relevant to the Act generally.
In particular —
(a) section 1.2 provides for the commencement of the Act;
(b) section 1.3 summarizes the main content of the Act and what it intends to achieve;
(c) section 1.5 explains the legal status of italicized notes such as this;
(d) section 1.6 states the position of the Crown; and
(e) other provisions define some terms and concepts used in the Act.
1.1. Short title
This Act may be cited as the Local Government Act 1995 1.
1.2. Commencement
This Act comes into operation on 1 July 1996.
1.3. Content and intent
(1) This Act provides for a system of local government by —
(a) providing for the constitution of elected local governments in the State;
(b) describing the functions of local governments;
(c) providing for the conduct of elections and other polls; and
(d) providing a framework for the administration and financial management of local governments and for the scrutiny of their affairs.
(2) This Act is intended to result in —
(a) better decision‑making by local governments;
(b) greater community participation in the decisions and affairs of local governments;
(c) greater accountability of local governments to their communities; and
(d) more efficient and effective local government.
(3) In carrying out its functions a local government is to use its best endeavours to meet the needs of current and future generations through an integration of environmental protection, social advancement and economic prosperity.
[Section 1.3 amended by No. 49 of 2004 s. 15.]
1.4. Interpretation
In this Act, unless the contrary intention appears —
“absolute majority” —
(a) in relation to a council, means a majority comprising enough of the members for the time being of the council for their number to be more than 50% of the number of offices (whether vacant or not) of member of the council;
(b) in relation to any other body, means a majority comprising enough of the persons for the time being constituting the body for their number to be more than 50% of the number of offices (whether vacant or not) on the body;
“75% majority”, in relation to a council, means a majority comprising enough of the members for the time being of the council for their number to be at least 75% of the number of offices (whether vacant or not) of member of the council;
“Advisory Board” means the Local Government Advisory Board established by section 2.44;
“auditor”, in relation to a local government means a person for the time being appointed under Part 7 to be the auditor of the local government;
“CEO” means the chief executive officer of a local government;
“commissioner” means a commissioner appointed to a local government under sections 2.6(4), 2.36A(3), 2.37(4), 2.37A(1), 8.30 or 8.33;
“council” means the council of a local government;
“councillor” means a person who holds the office of councillor on a council (including a person who holds another office under section 2.17(2)(a) or (b) as well as the office of councillor);
“councillor mayor or president” means a mayor or president elected by the council from amongst the councillors;
“Crown lands” means lands of the Crown —
(a) not granted or contracted to be granted in fee simple; or
(b) not held or occupied —
(i) under conditional terms of purchase; or
(ii) with a right to acquire the fee simple;
“Crown lease” means a lease from the Crown of Crown lands, or a licence or concession from the Crown for taking a profit of Crown lands, but does not include —
(a) an instrument executed or issued pursuant to a contract or arrangement with the Crown by virtue of which land is held or occupied with a right, whether subject to compliance with conditions or otherwise, to acquire the fee simple;
(b) a lease under the Housing Act 1980; and
(c) an instrument by virtue of which lands are held or occupied subject to the payment of a peppercorn or nominal rental;
“Crown lessee” means a person entitled under a Crown lease to an interest or a right in or over Crown lands;
“Department” means the department of the Public Service assisting the Minister to administer this Act;
“Departmental CEO” means the chief executive officer of the Department;
“district” means an area of the State that is declared to be a district under section 2.1;
“election year” means a year in which ordinary elections for local governments are required to be held;
“elector”, in relation to a district or ward, means a person who is eligible to be enrolled to vote at elections for the district or ward;
“elector mayor or president” means a mayor or president elected by electors of a district;
“Electoral Commissioner” means the Electoral Commissioner appointed under the Electoral Act 1907;
“electoral requirements” has the meaning given by section 4.1;
“employee” means a person employed by a local government under section 5.36;
“extraordinary election” has the meaning given by section 4.8;
“financial year” means the period commencing on 1 July and ending on the next following 30 June;
“inaugural election” has the meaning given by section 4.2;
“Inquiry Panel” means an Inquiry Panel constituted under section 8.16;
“local government” means a local government established under this Act;
“local government property” means anything, whether land or not, that belongs to, or is vested in, or under the care, control or management of, the local government;
“local public notice” has the meaning given by section 1.7;
“member”, in relation to the council of a local government, means —
(a) an elector mayor or president of the local government; or
(b) a councillor on the council (including a councillor who holds another office under section 2.17(2)(a) or (b) as well as the office of councillor);
“metropolitan area” has the same definition as “metropolitan region” in the Planning and Development Act 2005;
“municipal fund” means the municipal fund established under section 6.6;
“occupier” where used in relation to land means the person by whom or on whose behalf the land is actually occupied or, if there is no occupier, the person entitled to possession of the land, and includes a person in unauthorised occupation of Crown land and where under a licence or concession there is a right to take profit of Crown land specified in the licence or concession, means the person having that right;
“ordinary election” has the meaning given by section 4.4;
“ordinary elections day” in relation to a local government, means a day fixed by section 4.6 or under section 4.7(2) for holding the polls for ordinary elections for that local government (whether or not any polls are actually held);
“owner”, where used in relation to land —
(a) means a person who is in possession as —
(i) the holder of an estate of freehold in possession in the land, including an estate or interest under a contract or an arrangement with the Crown or a person, by virtue of which contract or arrangement the land is held or occupied with a right to acquire by purchase or otherwise the fee simple;
(ii) a Crown lessee or a lessee or tenant under a lease or tenancy agreement of the land which in the hands of the lessor is not rateable land under this Act, but which in the hands of the lessee or tenant is by reason of the lease or tenancy rateable land under this or another Act for the purposes of this Act;
(iii) a mortgagee of the land; or
(iv) a trustee, executor, administrator, attorney, or agent of a holder, lessee, tenant, or mortgagee, mentioned in this paragraph;
(b) where there is not a person in possession, means the person who is entitled to possession of the land in any of the capacities mentioned in paragraph (a), except that of mortgagee;
(c) where, under a licence or concession there is a right to take profit of Crown land specified in the licence or concession, means the person having that right;
(d) where a person is lawfully entitled to occupy land which is vested in the Crown, and which has no other owner according to paragraph (a), (b), or (c), means the person so entitled;
(e) means a person who —
(i) under the Mining Act 1978, holds in respect of the land a mining tenement within the meaning given to that expression by that Act;
(ii) in accordance with the Mining Act 1978 holds, occupies, uses, or enjoys in respect of the land a mining tenement within the meaning given to that expression by the Mining Act 1904 3; or
(iii) under the Petroleum Act 1967 holds in respect of the land a petroleum production licence or a petroleum exploration permit within the meaning given to each of those expressions by that Act;
or
(f) where a person is in the unauthorised occupation of Crown land, means the person so in occupation;
“prescribed” means prescribed by regulations;
“Statewide public notice” has the meaning given by section 1.8;
“thoroughfare” means a road or other thoroughfare and includes structures or other things appurtenant to the thoroughfare that are within its limits, and nothing is prevented from being a thoroughfare only because it is not open at each end;
“WALGA” means the Western Australian Local Government Association constituted under section 9.58;
“ward” means one of the wards into which a district is divided under section 2.2.
[Section 1.4 amended by No. 1 of 1998 s. 4 and 6(2); No. 64 of 1998 s. 4(2); No. 49 of 2004 s. 11 and 16(1); No. 38 of 2005 s. 15; No. 28 of 2006 s. 361.]
1.5. Descriptions in italics not part of the law
A description that is printed in italics at the beginning of a Part of this Act explaining what it is about is not part of the Act.
1.6. Crown not generally bound
This Act does not bind the Crown except to the extent expressly stated in this Act.
1.7. Local public notice
(1) Where under this Act local public notice of a matter is required to be given, a notice of the matter is to be —
(a) published in a newspaper circulating generally throughout the district;
(b) exhibited to the public on a notice board at the local government’s offices; and
(c) exhibited to the public on a notice board at every local government library in the district.
(2) Unless expressly stated otherwise it is sufficient if the notice is —
(a) published under subsection (1)(a) on at least one occasion; and
(b) exhibited under subsection (1)(b) and (c) for a reasonable time, being not less than —
(i) the time prescribed for the purposes of this paragraph; or
(ii) if no time is prescribed, 7 days.
[Section 1.7 amended by No. 64 of 1998 s. 18(3).]
1.8. Statewide public notice
Where under this Act Statewide public notice of a matter is required to be given, section 1.7 applies except that the newspaper referred to in section 1.7(1)(a) is required to circulate generally throughout the State.
1.9. Decisions by absolute majority
The footnote “Absolute majority required”, applying to a power conferred in this Act, means that —
(a) if the power is conferred on a local government, it can only be exercised by or in accordance with, a decision of an absolute majority of the council; or
(b) if the power is conferred on any other body, it can only be exercised by or in accordance with, a decision of an absolute majority of that body.
1.10. Decisions by special majority
The footnote “Special majority required” applying to a power conferred in this Act on a local government, means that —
(a) if there are more than 11 offices of member of the council, the power can only be exercised by, or in accordance with, a decision of a 75% majority of the council; or
(b) if there are not more than 11 offices of member of the council, the power can only be exercised by, or in accordance with, a decision of an absolute majority of the council.
Part 2 — Constitution of local government
What this Part is about
This Part deals with the constitutional framework of the system of elected local government in this State maintained as required by Part IIIB of the Constitution Act 1889.
In particular it deals with —
(a) the division of the State into districts and wards for local government purposes;
(b) the creation of local governments;
(c) the creation and membership of elected councils;
(d) the qualifications of members of councils; and
(e) the terms of office of members of councils and how their offices may become vacant; and
(f) commissioners of local governments.
Division 1 — Districts and wards
2.1. State divided into districts
(1) The Governor, on the recommendation of the Minister, may make an order —
(a) declaring an area of the State to be a district;
(b) changing the boundaries of a district;
(c) abolishing a district; or
(d) as to a combination of any of those matters.
(2) Schedule 2.1 (which deals with creating, changing the boundaries of, and abolishing districts) has effect.
(3) The Minister can only make a recommendation under subsection (1) if the Advisory Board has recommended under Schedule 2.1 that the order in question should be made.
2.2. Districts may be divided into wards
(1) The Governor, on the recommendation of the Minister, may make an order —
(a) dividing a district into wards;
(b) creating new wards in a district that is already divided into wards;
(c) changing the boundaries of a ward;
(d) abolishing any or all of the wards into which a district is divided; or
(e) as to a combination of any of those matters.
(2) For the purposes of this Act —
(a) an order that divides a district into wards is to be regarded as establishing a ward system for the district; and
(b) an order that abolishes all of the wards into which a district is divided and does not create new wards, is to be regarded as discontinuing the ward system for the district.
(3) Schedule 2.2 (which deals with wards and representation) has effect.
(4) The Minister can only make a recommendation under subsection (1) if the Advisory Board has recommended under Schedule 2.2 that the order in question should be made.
2.3. Names of districts and wards
(1) An order under section 2.1 designating an area of the State to be a district is to include an order naming the district.
(2) An order under section 2.2 establishing a ward system for a district is to include an order naming the wards.
(3) If a local government proposes under Schedule 2.2 that an order be made changing the name of the district or a ward, the Minister may recommend to the Governor that the order be made, and the Governor may make the order accordingly.
(4) The Minister can only make a recommendation under subsection (3) if the Advisory Board has recommended under Schedule 2.2 that the order in question should be made.
2.4. District to be a city, town or shire
(1) An order under section 2.1 declaring an area of the State to be a district is to include an order designating the district a city, town or shire.
(2) The Governor may, by order, change the designation of a district.
(3) A district can only be designated a city if —
(a) the district is in the metropolitan area and has more than 30 000 inhabitants more than half of whom live in an urban area; or
(b) the district, if it is not in the metropolitan area, has more than 20 000 inhabitants more than half of whom live in an urban area.
(4) A district can only be designated a town if more than half of its inhabitants live in an urban area.
(5) A district that is not designated a city or a town is to be designated a shire.
(6) The number of inhabitants of a district at a particular time is to be taken as that established by the Government Statistician appointed under the Statistics Act 1907 according to the information then available to that person.
(7) Despite any change in the number or distribution of a district’s inhabitants, the designation of the district continues to apply until it is changed under this section.
Division 2 — Local governments and councils of local governments
2.5. Local governments created as bodies corporate
(1) When an area of the State becomes a district, a local government is established for the district.
(2) The local government is a body corporate with perpetual succession and a common seal.
(3) The local government has the legal capacity of a natural person.
(4) The corporate name of the local government is the combination of the district’s designation and name.
Example: City of (name of district)
(5) If the district’s name incorporates its designation, the designation is not repeated in the corporate name of the local government.
Example:
district’s name : Albany (Town)
corporate name : Town of Albany
(6) Proceedings may be taken by or against the local government in its corporate name.
2.6. Local governments to be run by elected councils
(1) Each local government is to have an elected council as its governing body.
(2) The offices on the council of the local government of a city or town are those of the mayor, the deputy mayor and the councillors.
(3) The offices on the council of the local government of a shire are those of the president, the deputy president and the councillors.
(4) The Governor may, by order, appoint a person to be the commissioner of a local government until the offices of members of the council are filled for the first time and the council holds its first meeting.
2.7. The role of the council
(1) The council —
(a) directs and controls the local government’s affairs; and
(b) is responsible for the performance of the local government’s functions.
(2) Without limiting subsection (1), the council is to —
(a) oversee the allocation of the local government’s finances and resources; and
(b) determine the local government’s policies.
2.8. The role of the mayor or president
(1) The mayor or president —
(a) presides at meetings in accordance with this Act;
(b) provides leadership and guidance to the community in the district;
(c) carries out civic and ceremonial duties on behalf of the local government;
(d) speaks on behalf of the local government;
(e) performs such other functions as are given to the mayor or president by this Act or any other written law; and
(f) liaises with the CEO on the local government’s affairs and the performance of its functions.
(2) Section 2.10 applies to a councillor who is also the mayor or president and extends to a mayor or president who is not a councillor.
2.9. The role of the deputy mayor or deputy president
The deputy mayor or deputy president performs the functions of the mayor or president when authorised to do so under section 5.34.
2.10. The role of councillors
A councillor —
(a) represents the interests of electors, ratepayers and residents of the district;
(b) provides leadership and guidance to the community in the district;
(c) facilitates communication between the community and the council;
(d) participates in the local government’s decision‑making processes at council and committee meetings; and
(e) performs such other functions as are given to a councillor by this Act or any other written law.
Division 3 — How offices on the council are filled
2.11. Alternative methods of filling the office of mayor or president
(1) When an order is made under section 2.1 declaring an area of the State to be a district, the Governor is, by order, to specify whether the first mayor or president of the local government is to be —
(a) elected by electors of the district under Part 4; or
(b) elected by the council from amongst the councillors under Schedule 2.3, Division 1.
(2) A local government may change* the method of filling the office of mayor or president used by the local government from the election by the council method to the election by the electors method.
* Special majority required.
(3) A local government may exercise the power conferred by subsection (2) whether or not a proposal has been made under section 2.12.
(4) The method of filling the office of mayor or president used by a local government is changed from the election by the electors method to the election by the council method if the result of a poll declared under section 2.12A(4) is that a majority of electors of the district who voted at the poll voted in favour of the change.
[Section 2.11 amended by No. 49 of 2004 s. 17(1) and (2).]
2.12. Electors may propose change of method
(1) A proposal to change the method of filling the office of mayor or president used by a local government to the other method mentioned in section 2.11(1)(a) or (b) may be made to the local government by electors of the district who —
(a) are at least 250 in number; or
(b) are at least 10% of the total number of electors of the district.
(2) The proposal is to comply with any regulations about such proposals.
(3) If the proposal is to change the method of filling the office of mayor or president from the election by the council method to the election by the electors method, consideration is to be given to the proposal by such means as the council thinks fit after which a motion to change the method of filling the office of mayor or president is to be put to the council for decision under section 2.11(2).
[Section 2.12 amended by No. 49 of 2004 s. 17(3).]
2.12A. Procedure to change method to election by council
(1) If —
(a) electors of the district, acting under section 2.12(1), propose; or
(b) the council, by motion passed by it, proposes,
to change the method of filling the office of mayor or president of the local government from the election by the electors method to the election by the council method, the local government is to —
(c) give local public notice of the proposal stating that submissions about the proposal may be made to the local government before a day to be specified in the notice, being a day that is not less than 6 weeks after the notice is given; and
(d) consider or reconsider the proposal in view of any submissions received.
(2) Subject to section 2.13(3), if the local government decides to proceed with the proposal, there is to be a poll of the electors of the district on the proposal and —
(a) the Advisory Board is to —
(i) determine the question to be voted on by the electors of the district; and
(ii) prepare a summary of the case for each way of voting on the question;
(b) the Electoral Commissioner is to —
(i) make the summary available to the electors before the poll is conducted;
(ii) be responsible for the conduct of the poll; and
(iii) appoint a person to be the returning officer of the local government for the poll;
and
(c) the local government is to meet the expenses of the Electoral Commissioner in connection with the poll to the extent required by regulations.
(3) The returning officer is to conduct the poll for and under the direction of the Electoral Commissioner.
(4) As soon as is practicable after the result of the poll is known the returning officer is to declare and give notice of the result in accordance with regulations.
(5) A poll referred to in this section is not to be held more than once in every 4 years in a district, even if a proposal has been made by the electors under section 2.12.
[Section 2.12A inserted by No. 49 of 2004 s. 17(4).]
2.13. When a new method takes effect
(1) A decision under section 2.11(2) to change to the election by electors method has effect in relation to the filling of the office of mayor or president at the next ordinary elections of the local government held after the decision is made and from then on until a change under section 2.11(4) to the election by the council method takes effect.
(2) A change under section 2.11(4) to the election by the council method has effect in relation to the filling of the office of mayor or president at the first meeting of the council after the ordinary elections of the local government in the year in which the term of office of the incumbent mayor or president ends and from then on until a decision under section 2.11(2) to change to the election by electors method takes effect.
(3) A decision under section 2.11(2) has no effect if it is made during, and a decision under section 2.12A(2) has no effect unless a poll resulting from it is held before, the period beginning on the 80th day before, and ending on, the ordinary election day in the year in which the term of office of the incumbent mayor or president ends.
[Section 2.13 amended by No. 64 of 1998 s. 19(2); No. 49 of 2004 s. 17(5)‑(7).]
2.14. Extension of term in certain cases
If the method of filling the office of mayor or president of a local government is changed from election by electors to election by the council then, despite the Table to section 2.28, a mayor or president elected by the electors may continue to hold that office after the end of his or her term until a mayor or president is elected by the council.
2.15. Filling the office of deputy mayor or deputy president
The deputy mayor or deputy president is to be elected by the council under Schedule 2.3, Division 2.
[Section 2.15 amended by No. 49 of 2004 s. 18.]
2.16. Filling the offices of the councillors
(1) If a district is not divided into wards the councillors are to be elected by electors of the district under Part 4.
(2) If a district is divided into wards the councillors for a ward are to be elected by electors of that ward under Part 4.
Division 4 — Membership and size of the council
2.17. The members of council
(1) If the method of filling the office of mayor or president is election by electors, the council is to consist of —
(a) the mayor or president; and
(b) not less than 5 nor more than 14 councillors one of whom is to hold the office of deputy mayor or deputy president in conjunction with his or her office as a councillor.
(2) If the method of filling the office of mayor or president is election by the council, the council is to consist of not less than 6 nor more than 15 councillors of whom —
(a) one is to hold the office of mayor or president as well as the office of councillor; and
(b) another is to hold the office of deputy mayor or deputy president as well as the office of councillor.
(3) If the council has 15 councillors and a decision is made under section 2.11(2) to change the method of filling the office of mayor or president to election by electors, the council may, despite subsection (1)(b), continue to have 15 councillors after the decision has effect.
2.18. Fixing and changing the number of councillors
(1) When a local government is newly established the Governor, by order made on the recommendation of the Minister, is to —
(a) specify the number of offices of councillor on the council of the local government; and
(b) if the district is to have a ward system, specify the numbers of offices of councillor for the wards.
(2) When an order is made under section 2.2 discontinuing a ward system for a district, the number of offices of councillor on the council remains unchanged unless the order specifies otherwise.
(3) The Governor, on the recommendation of the Minister, may make an order —
(a) changing the number of offices of councillor on a council;
(b) specifying or changing the number of offices of councillor for a ward; or
(c) as to a combination of those matters.
(4) The Minister can only make a recommendation under subsection (1) or (3) if the Advisory Board has recommended under Schedule 2.2 that the order in question should be made.
Division 5 — Qualifications for holding office on the council
2.19. Qualifications for election to council
(1) A person is qualified to be elected as a member of a council if the person —
(a) is of or over the age of 18 years;
(b) is an elector of the district;
(c) is not disqualified from being elected as a member under section 2.20; and
(d) is not disqualified for membership of the council under section 2.21, 2.22, 2.23 or 2.24.
(2) A person is not qualified under subsection (1)(b) if he or she is only eligible for enrolment under section 4.30(1)(a) and (b) —
(a) as the nominee of a body corporate under section 4.31; or
(b) because of Schedule 9.3, clause 12(2).
(3) A person who is qualified under subsection (1) can be elected as a councillor for a ward whether or not he or she is an elector of that ward.
[Section 2.19 amended by No. 1 of 1998 s. 5(1).]
2.20. Members of parliament disqualified for election
(1) A person is disqualified from being elected as a member of a council if the person is a member of a parliament.
(2) In this section —
“member of a parliament” means —
(a) a member of the Legislative Assembly;
(b) a member of the Legislative Council, including a person who has been elected as a member of that House but is not yet entitled to sit or vote in that House because of section 8(2) of the Constitution Acts Amendment Act 1899;
(c) a member of the House of Representatives; or
(d) a senator, including a person who has been elected as a senator but whose term of service as a senator has not yet begun.
2.21. Disqualification because of insolvency
A person is disqualified for membership of a council if the person is an insolvent under administration within the meaning of the Corporations Act 2001 of the Commonwealth.
[Section 2.21 amended by No. 10 of 2001 s. 121.]
2.22. Disqualification because of convictions
(1) A person is disqualified for membership of a council if the person —
(a) has been convicted of a crime and is in prison serving a sentence for that crime; or
(b) has been convicted in the preceding 5 years of a serious local government offence.
(2) A court that has sentenced a person for a serious local government offence may make an order —
(a) waiving the application of subsection (1)(b); or
(b) reducing the period of 5 years mentioned in subsection (1)(b),
and the court’s order has effect in accordance with its terms.
(3) In this section —
“former provisions” means the Local Government Act 1960 4 as in force before the commencement of this Act;
“serious local government offence” means an offence against this Act or the former provisions for which an offender —
(a) could be sentenced to imprisonment for a term of, or exceeding the period prescribed for the purposes of this section; or
(b) could be sentenced to pay a fine of or exceeding the amount prescribed for the purposes of this section.
2.23. Disqualification because of membership of another council
A person is disqualified for membership of a council if the person is a member of another council.
2.24. Disqualification because of misapplication of funds or property
A person is disqualified for membership of a council if section 8.43(1), or an order under section 8.43(3), applies to the person.
2.25. Disqualification for failure to attend meetings
(1) A council may, by resolution, grant leave of absence, to a member.
(2) Leave is not to be granted to a member in respect of more than 6 consecutive ordinary meetings of the council without the approval of the Minister.
(3) The granting of the leave, or refusal to grant the leave and reasons for that refusal, is to be recorded in the minutes of the meeting.
(4) A member who is absent, without first obtaining leave of the council, throughout 3 consecutive ordinary meetings of the council is disqualified from continuing his or her membership of the council.
(5) The non‑attendance of a member at the time and place appointed for an ordinary meeting of the council does not constitute absence from an ordinary meeting of the council —
(a) if no meeting of the council at which a quorum is present is actually held on that day; or
(b) if the non‑attendance occurs while —
(i) the member has ceased to act as a member after written notice has been given to the member under section 2.27(3) and before written notice has been given to the member under section 2.27(5);
(ii) while proceedings in connection with the disqualification of the member have been commenced and are pending; or
(iii) while the election of the member is disputed and proceedings relating to the disputed election have been commenced and are pending.
[Section 2.25 amended by No. 49 of 2004 s. 19(1).]
2.26. Election to council terminates employment with local government
If a person who is employed by a local government is declared to be elected as a member of the local government’s council then, by operation of this section, the person’s employment with the local government ends when the person begins his or her term of office as a member.
2.27. Procedure to determine qualification to retain membership of council
(1) In this section —
“disqualified”, in relation to a member of a council, means —
(a) not qualified under section 2.19(1)(b) to be elected as a member of the council; or
(b) disqualified for membership of the council under section 2.21, 2.22, 2.23 or 2.24; or
(c) disqualified from continuing his or her membership of the council under section 2.25.
(2) A member who considers that he or she is disqualified is to advise the CEO in writing without delay.
(3) If the CEO has reason (other than through receiving a notice under subsection (2)) to believe that a member of a council is disqualified the CEO is to give the member a written notice without delay indicating the reasons why the CEO believes the member to be disqualified.
(4) The CEO’s notice under subsection (3) has to inform the member —
(a) that if the member believes that he or she is not disqualified, he or she may advise the CEO in writing within 28 days from the date of the service of the notice; and
(b) that if the member accepts that he or she is disqualified in accordance with the terms of the notice, he or she is to advise the CEO in writing.
(5) If, within 28 days from the date of service of the CEO’s notice under subsection (3), the member satisfies the CEO that the member is not disqualified, the CEO is to give the member a written notice to that effect.
(6) Unless, within 28 days from the date of service of the CEO’s notice under subsection (3), the member —
(a) satisfies the CEO that the member is not disqualified; or
(b) advises the CEO in writing that the member accepts that he or she is disqualified,
the CEO is to apply to the State Administrative Tribunal asking for a declaration as to whether or not the member is disqualified.
(7) A person other than the CEO may, at any time, apply to the State Administrative Tribunal for a declaration as to whether or not a member of a council is disqualified.
[(8) repealed]
(9) A person who acts as a member of a council while disqualified commits an offence.
Penalty: $5 000 or imprisonment for one year.
[Section 2.27 amended by No. 55 of 2004 s. 685.]
Division 6 — Terms of office on the council and vacation of office
2.28. Days on which terms begin and end
(1) The days on which the term of a person holding an office on a council begins and ends depend on the nature of the office and the circumstances in which the person is elected to hold the office.
(2) The days are to be determined in accordance with the Table to this section.
Table to section 2.28
Terms of office
|
Item |
Kind of office |
How elected |
Term begins |
Term ends |
|
1. |
Elector mayor or president |
Elected at an inaugural election, or a section 4.11, 4.12, 4.13 or 4.14 election, in an election year |
On the day after — (a) the day on which the poll is held; or (b) if no poll is held, the day on which a poll would have been held |
On the third Saturday in October in the fourth year after the year in which the term began (but note sections 2.14 and 2.30) |
|
2. |
Elector mayor or president |
Elected at an inaugural election, or a section 4.11, 4.12, 4.13 or 4.14 election, in a year other than an election year |
On the day after — (a) the day on which the poll is held; or (b) if no poll is held, the day on which a poll would have been held |
On the third Saturday in October in the third year after the year in which the term began (but note sections 2.14 and 2.30) |
|
3. |
Councillor |
Elected at an inaugural election or any other election not dealt with in item 4, 5, 6, 8 or 9 |
On the day after — (a) the day on which the poll is held; or (b) if no poll is held, the day on which a poll would have been held |
On the day determined by the returning officer under section 4.78 (but note section 2.30) |
|
4. |
Elector mayor or president |
Elected at an ordinary election |
On the day after the ordinary elections day |
On the third Saturday in October in the fourth year after the year in which the term began (but note sections 2.14 and 2.30) |
|
5. |
Elector mayor or president |
Elected at an extraordinary election not dealt with in item 6, 7 or 8 |
On the day after — (a) the day on which the poll is held; or (b) if no poll is held, the day of nomination |
On the day on which the term of office of the person whose office has become vacant would have ended if the vacancy had not occurred |
|
6. |
Elector mayor or president |
Elected at an extraordinary election to fill a vacancy arising — (a) by resignation; or (b) under section 2.33 (i.e. where a member becomes a member of a parliament), including an election required under section 4.57 or 4.58 in respect of such an extraordinary election |
On the day after — (a) the day on which the poll is held; or (b) if no poll is held, the nomination day, unless the office has not then become vacant in which case the term begins when the office becomes vacant |
On the day on which the term of office of the person whose office has or will become vacant would have ended if the vacancy had not occurred |
|
7. |
Elector mayor or president |
Elected at an extraordinary election required under section 4.57 or 4.58 in respect of an ordinary election |
On the day after — (a) the day on which the poll is held; or (b) if no poll is held, the day of nomination |
On the third Saturday in October in the fourth year after the year in which the term began (but note sections 2.14 and 2.30) |
|
8. |
Councillor |
Elected at an extraordinary election required under section 4.57 or 4.58 in respect of an ordinary election |
On the day after — (a) the day on which the poll is held; or (b) if no poll is held, the day of nomination |
On the day determined by the returning officer under section 4.78 (but note section 2.30) |
|
9. |
Elector mayor or president |
Elected at a section 4.15 election |
On the day after — (a) the day on which the poll is held; or (b) if no poll is held, the day of nomination |
On the day ascertained as if the election were the election that has been declared invalid |
|
10. |
Elector mayor president |
Appointed under section 4.57(3) |
On the day on which — (a) the person is appointed; or (b) the person’s term would have begun if the person had been elected under section 4.57(1), whichever is later |
On the day on which the term would have ended if the person had been elected under section 4.57(1) (but see Schedule 4.2, clause 9) |
|
11. |
Councillor mayor or president |
Elected at any election |