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. Terms used in this Act 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. 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 34
2.36A. Power to declare offices vacant if district is to be abolished34
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 36
2.39. Appointment of commissioner 36
2.40. Joint commissioners 36
2.41. Appointment, tenure, meetings etc. 37
2.42. Commissioner to make declaration 37
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. Terms used in this Subdivision 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. Terms used in this Part 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 113
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 116
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 118
4.79. Report to Minister 118
Division 10 — Validity of elections
4.80. Complaints about the result of an election 119
4.81. Complaints to go to a Court of Disputed Returns 119
4.82. No appeal 120
4.83. Certain defects do not affect an election 120
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 122
4.87. Printing and publication of electoral material 122
4.88. Misleading, false or defamatory statements 123
4.89. No canvassing in or near polling places 124
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 126
4.94. Other electoral offences 126
4.95. Attempts to commit offences 127
4.96. Investigation of electoral misconduct 127
4.97. Prosecutions 128
4.98. Criminal Code not to apply 128
Division 12 — Polls and referendums
4.99. Election procedures to apply to polls and referendums 128
Part 5 — Administration
Division 1 — Introduction
5.1. Term used in this Part 130
5.2. Administration of local governments 130
Division 2 — Council meetings, committees and their meetings and electors’ meetings
Subdivision 1 — Council meetings
5.3. Ordinary and special council meetings 131
5.4. Calling council meetings 131
5.5. Convening council meetings 131
5.6. Who presides at council meetings 131
5.7. Minister may reduce number for quorum and certain majorities 132
Subdivision 2 — Committees and their meetings
5.8. Establishment of committees 132
5.9. Types of committees 133
5.10. Appointment of committee members 133
5.11. Tenure of committee membership 134
5.12. Election of presiding members and deputies 135
5.13. Functions of deputy presiding members 136
5.14. Who acts if no presiding member 136
5.15. Reduction of quorum for committees 136
5.16. Delegation of some powers and duties to certain committees136
5.17. Limits on delegation of powers and duties to certain committees 137
5.18. Register of delegations to committees 138
Subdivision 3 — Matters affecting council and committee meetings
5.19. Quorum for meetings 138
5.20. Decisions of councils and committees 138
5.21. Voting 139
5.22. Minutes of council and committee meetings 139
5.23. Meetings generally open to the public 140
5.24. Question time for the public 141
5.25. Regulations about council and committee meetings and committees 141
Subdivision 4 — Electors’ meetings
5.26. Term used in this Subdivision 143
5.27. Electors’ general meetings 143
5.28. Electors’ special meetings 143
5.29. Convening electors’ meetings 144
5.30. Who presides at electors’ meetings 144
5.31. Procedure for electors’ meetings 145
5.32. Minutes of electors’ meetings 145
5.33. Decisions made at electors’ meetings 145
Division 3 — Acting for the mayor or president
5.34. When deputy mayors and deputy presidents can act 145
5.35. Who acts if no mayor, president or deputy 146
Division 4 — Local government employees
5.36. Local government employees 147
5.37. Senior employees 148
5.38. Annual review of certain employees’ performances 148
5.39. Contracts for CEO’s and senior employees 148
5.40. Principles affecting employment by local governments 150
5.41. Functions of CEO 150
5.42. Delegation of some powers and duties to CEO 151
5.43. Limits on delegations to CEO’s 151
5.44. CEO may delegate powers and duties to other employees 152
5.45. Other matters relevant to delegations under this Division 153
5.46. Register of, and records relevant to, delegations to CEO’s and employees 153
5.47. Superannuation for employees 154
5.48. Long service benefits for employees and employees of local government associations 154
5.49. Workers’ compensation arrangement 154
5.50. Payments to employees in addition to contract or award 156
5.51. Employee who nominates for election to council to take leave 157
Division 5 — Annual reports and planning
5.53. Annual reports 157
5.54. Acceptance of annual reports 158
5.55. Notice of annual reports 159
5.56. Planning for the future 159
Division 6 — Disclosure of financial interests
Subdivision 1 — Disclosure of financial interests in matters affecting local government decisions
5.59. Terms used in this Subdivision 159
5.60. When a person has an “interest” 159
5.60A. Financial interest 160
5.60B. Proximity interest 160
5.61. Indirect financial interests 161
5.62. Closely associated persons 161
5.63. Some interests need not be disclosed 162
5.65. Members’ interests in matters to be discussed at meetings to be disclosed 164
5.66. Meeting to be informed of disclosures 165
5.67. Disclosing members not to participate in meetings 165
5.68. Councils and committees may allow members disclosing interests to participate etc. in meetings166
5.69. Minister may allow members disclosing interests to participate etc. in meetings 167
5.69A. Minister may exempt committee members from disclosure requirements 167
5.70. Employees to disclose interests relating to advice or reports168
5.71. Employees to disclose interests relating to delegated functions 169
5.72. Defence to prosecution 169
5.73. Disclosures to be minuted 169
Subdivision 2 — Disclosure of financial interests in returns
5.74. Terms used in this Subdivision 169
5.75. Primary returns 172
5.76. Annual returns 172
5.77. Acknowledging receipt of returns 173
5.78. Information to be disclosed in returns 173
5.79. Real property 173
5.80. Source of income 174
5.81. Trusts 175
5.82. Gifts 176
5.83. Contributions to travel 177
5.84. Interests and positions in corporations 178
5.85. Debts 179
5.86. Dispositions of property 180
5.87. Discretionary disclosures generally 182
Subdivision 3 — General
5.88. Register of financial interests 182
5.89. Offence to give false or misleading information 183
5.90. Offence to publish information in certain cases 183
Division 7 — Access to information
5.91. Interpretation 183
5.92. Access to information by council, committee members 184
5.93. Improper use of information 184
5.94. Public can inspect certain local government information 184
5.95. Limits on right to inspect local government information 186
5.96. Copies of information to be available 188
5.97. Freedom of Information Act 1992 not affected 188
Division 8 — Fees, expenses and allowances
5.98. Fees etc. for council members 189
5.98A. Allowance for deputy mayor or deputy president 190
5.99. Annual fee for council members in lieu of fees for attending meetings 191
5.99A. Allowances for council members in lieu of reimbursement of expenses 191
5.100. Payments for certain committee members 192
5.101. Payments for employee committee members 192
5.102. Expense may be funded before actually incurred 192
Division 9 — Conduct of certain officials
5.102A. Terms used in this Division 192
5.103. Codes of conduct 193
5.104. Other regulations about conduct of council members 194
5.105. Breaches by council members 194
5.106. Deciding whether breach occurred 195
5.107. Complaining to complaints officer of minor breach 195
5.108. Executive Director may send complaint of minor breach to complaints officer 196
5.109. Complaint initiated by complaints officer 197
5.110. Dealing with complaint of minor breach 198
5.111. Dealing with a recurrent breach 199
5.112. Allegation of recurrent breach 199
5.113. Punishment for recurrent breach 200
5.114. Making complaint of serious breach 200
5.115. Complaints officer to send complaint of serious breach to Executive Director 201
5.116. Allegation by Executive Director of serious breach 201
5.117. Punishment for serious breach 203
5.118. Carrying out orders 204
5.119. State Administrative Tribunal’s enforcement powers 205
5.120. Complaints officer 205
5.121. Register of certain complaints of minor breaches 205
5.122. Standards panels 206
5.123. Confidentiality 206
5.124. Giving false or misleading information 207
5.125. Review of certain decisions 207
Part 6 — Financial management
Division 1 — Introduction
6.1. Terms used in this Part 208
Division 2 — Annual budget
6.2. Local government to prepare annual budget 209
6.3. Budget for other circumstances 210
Division 3 — Reporting on activities and finance
6.4. Financial report 211
Division 4 — General financial provisions
6.5. Accounts and records 211
6.6. Funds to be established 212
6.7. Municipal fund 212
6.8. Expenditure from municipal fund not included in annual budget 212
6.9. Trust fund 213
6.10. Financial management regulations 214
6.11. Reserve accounts 214
6.12. Power to defer, grant discounts, waive or write off debts 215
6.13. Interest on money owing to local governments 216
6.14. Power to invest 217
Division 5 — Financing local government activities
Subdivision 1 — Introduction
6.15. Local government’s ability to receive revenue and income217
Subdivision 2 — Fees and charges
6.16. Imposition of fees and charges 218
6.17. Setting the level of fees and charges 219
6.18. Effect of other written laws 220
6.19. Local government to give notice of fees and charges 220
Subdivision 3 — Borrowings
6.20. Power to borrow 220
6.21. Restrictions on borrowing 222
6.22. Appointment of receivers 223
6.23. Powers of receivers 223
6.24. Application of money 224
Division 6 — Rates and service charges
Subdivision 1 — Introduction and basis of rating
6.25. Terms used in this Division and Schedule 6.1 224
6.26. Rateable land 225
6.27. Multiple rating 227
6.28. Basis of rates 228
6.29. Valuation and rates on mining and petroleum interests 229
6.30. Valuation of and rates on certain land 229
6.31. Phasing in of certain valuations 230
Subdivision 2 — Categories of rates and service charges
6.32. Rates and service charges 230
6.33. Differential general rates 232
6.34. Limit on revenue or income from general rates 233
6.35. Minimum payment 233
6.36. Local government to give notice of certain rates 234
6.37. Specified area rates 235
6.38. Service charges 237
Subdivision 3 — Imposition of rates and service charges
6.39. Rate record 238
6.40. Effect of amendment of rate record 239
6.41. Service of rate notice 240
Subdivision 4 — Payment of rates and service charges
6.42. Term used in s. 6.43, 6.44 and 6.52(1) 241
6.43. Rates and service charges are a charge on land 241
6.44. Liability for rates or service charges 241
6.45. Options for payment of rates or service charges 242
6.46. Discounts 243
6.47. Concessions 243
6.48. Regulation of grant of discounts and concessions 243
6.49. Agreement as to payment of rates and service charges 243
6.50. Rates or service charges due and payable 243
6.51. Accrual of interest on overdue rates or service charges 244
6.52. Rates and service charges may be apportioned 245
6.53. Land becoming or ceasing to be rateable land 246
Subdivision 5 — Recovery of unpaid rates and service charges
6.54. Term used in s. 6.55, 6.60 and 6.62 246
6.55. Recovery of rates and service charges 246
6.56. Rates or service charges recoverable in court 247
6.57. Non‑compliance with procedure in Act not to prevent recovery of rate or service charge 247
6.58. Defence in special cases 247
6.59. Question of title to land not to affect jurisdiction 248
6.60. Local government may require lessee to pay rent 248
6.61. Requirement to give name of person liable 249
6.62. Application of money paid for rates and service charges 250
Subdivision 6 — Actions against land where rates or service charges unpaid
6.63. Term used in this Subdivision 250
6.64. Actions to be taken 250
6.65. Power to lease — procedure 251
6.66. Effect of lease 251
6.67. Release of property after payment of arrears 252
6.68. Exercise of power to sell land 252
6.69. Right to pay rates, service charges and costs, and stay proceedings 253
6.70. Effect of changes in boundaries of local government area 253
6.71. Power to transfer land to Crown or to local government 253
6.72. Title to land sold or transferred 254
6.73. Discharge of liability on sale of land 255
6.74. Power to have land revested in the Crown if rates in arrears 3 years 255
6.75. Land to be vested in the local government 256
Subdivision 7 — Objections and review
6.76. Grounds of objection 257
6.77. Review of decision of local government on objection 258
6.78. Review of decision to refusal to extend time for objection 258
6.79. New matters raised on review 258
6.79B. Written reasons for certain determinations to be given and published 259
6.80. Objections and reviews against valuations 259
6.81. Objection not to affect liability to pay rates or service charges 259
6.82. General review of imposition of rate or service charge 259
Part 7 — Audit
Division 1 — Introduction
7.1. Terms used in this Part 261
Division 1A — Audit committee
7.1A. Audit committee 262
7.1B. Delegation of some powers and duties to audit committees262
7.1C. Decisions of audit committees 263
Division 2 — Appointment of auditors
7.2. Audit 263
7.3. Appointment of auditors 263
7.4. Disqualified person not to be auditor 263
7.5. Approval of auditors 264
7.6. Term of office of auditor 264
7.7. Departmental CEO may appoint auditor 265
7.8. Terms of appointment of auditors 266
Division 3 — Conduct of audit
7.9. Audit to be conducted 266
7.10. Powers of the auditor 267
7.11. Power to demand production of books etc. 268
7.12. Employees and financial institutions to furnish particulars of money received 268
Division 4 — General
7.12A. Duties of local government with respect to audits 268
7.13. Regulations as to audits 269
Part 8 — Scrutiny of the affairs of local governments
Division 1 — Inquiries by the Minister or an authorised person
8.1. Terms used in this Division 272
8.2. Minister or Departmental CEO may require information 272
8.3. Inquiries by, or authorised by, the Departmental CEO 272
8.4. Scope and duration of an authorisation 273
8.5. Powers of an authorised person 274
8.6. Power to enter property 275
8.7. Notice of entry 275
8.8. Entry under warrant 275
8.9. Exercise of powers 276
8.10. Protection from liability 276
8.11. Failure to comply with directions 277
8.12. Referral to other authorities 277
8.13. Authorised person’s report 277
8.14. Copy to be given to the local government 278
8.15. Minister can take action to ensure that recommendations are put into effect 278
8.15A. Local government may have to meet inquiry costs 279
Division 2 — Inquiries by Inquiry Panels
8.16. Minister may institute an inquiry 279
8.17. Scope and duration of inquiry 279
8.18. Local government to be informed 280
8.19. Suspension of council while inquiry is held 280
8.20. Powers of Inquiry Panel 280
8.21. Referral to other authorities 281
8.22. Report of Inquiry Panel 281
8.23. Copies to be given to the local government and made available to the public 281
8.24. Minister to decide what action to take on Inquiry Panel’s report 282
8.25. Dismissal of council by Governor 283
8.26. Suspension of council if Minister’s order not complied with283
8.27. Local government may have to meet inquiry costs 283
Division 3 — General provisions about suspension and dismissal of councils
8.28. Period of suspension: reinstatement of council 284
8.29. Effect of suspension of council 284
8.30. Appointment of commissioner while council is suspended 285
8.31. No dismissal of a council except on Inquiry Panel’s recommendation 285
8.32. When dismissal of council takes effect 285
8.33. Appointment of commissioner on dismissal of council 285
8.34. Elections following dismissal of council 285
Division 4 — Misapplication of funds and property
8.35. Interpretation 286
8.36. Authorisation 286
8.37. Powers related to inquiries 287
8.38. Liability for misapplication of funds or property 287
8.39. Action to recover amounts misapplied 287
8.40. Notice to be given before action is taken 288
8.41. Decision whether or not to proceed with action 288
8.42. Power of court to order payment 288
8.43. Disqualification of a person who has misapplied funds or property 289
8.44. Evidence of authorisation 290
Part 9 — Miscellaneous provisions
Division 1 — Objections and review
9.1. When this Division applies 291
9.2. Terms used in this Division 292
9.3. Rights of affected person extended to certain owners 292
9.4. Advice of objection and review rights 292
9.5. Objection may be lodged 293
9.6. Dealing with objection 293
9.7. Review 294
9.9. Suspension of effect of decision 294
Division 2 — Enforcement and legal proceedings
Subdivision 1 — Miscellaneous provisions about enforcement
9.10. Appointment of authorised persons 295
9.11. Persons found committing breach of Act to give name on demand 296
9.12. Obstructing person who is acting under a written law 297
9.13. Onus of proof in vehicle offences may be shifted 297
9.13A. Notice to prevent continuing contravention 298
9.14. Penalty for offence when not otherwise specified 299
Subdivision 2 — Infringement notices
9.15. Terms used in this Subdivision 299
9.16. Giving a notice 300
9.17. Content of notice 300
9.18. Notice placing onus on vehicle owner 301
9.19. Extension of time 301
9.20. Withdrawal of notice 302
9.21. Benefit of paying modified penalty 302
9.22. Application of penalties collected 302
9.23. Restriction on appointment of authorised persons 302
Subdivision 3 — General provisions about legal proceedings
9.24. Commencing prosecutions 303
9.25. Time limit for prosecutions 303
9.26. Prosecuting defendant whose name unknown 304
9.27. Civil remedy not affected by proceedings for offence 304
9.28. Interests of the public 304
9.29. Representing local government in court 305
Subdivision 4 — Evidence in legal proceedings
9.30. When this Subdivision applies 305
9.31. Terms used in this Subdivision 306
9.32. Evidence Act 1906 not excluded 306
9.33. Presumptions about certificates 306
9.34. Evidence of local laws 306
9.35. Evidence of text adopted by local laws 307
9.36. Using Gazette notice as evidence 307
9.37. Using meeting minutes as evidence 307
9.38. Evidence of documents coming from a local government 307
9.39. Proving a document given to another party 308
9.40. Using copy of rate record as evidence 308
9.41. Proving ownership, occupancy, and other things by certificate 309
9.42. Person may be alleged to be owner or occupier of land 310
9.43. Certificate of returning officer about election 310
9.44. Spouses and de facto partners presumed to be living with one another 310
9.45. Evidence of authorisation or approval 310
9.46. Things may be alleged to be property of local government 311
9.47. Proof of certain matters not required 311
9.48. Evidence of thoroughfare 312
Division 3 — Documents
9.49. Documents, how authenticated 313
9.50. Giving documents to persons, generally 313
9.51. Giving documents to local government 313
9.52. Giving documents in difficult cases 313
9.53. Other provisions about giving documents 314
9.54. Defects in documents 314
9.55. Effect of document on persons deriving title 314
Division 4 — Protection from liability
9.56. Certain persons protected from liability for wrongdoing 315
9.57. Local government protected from certain liability 316
Division 5 — Associations of local government
9.58. Constitution of associations of local government 316
Division 6 — Regulations, directions and orders
9.59. General regulations 317
9.60. Regulations that operate as local laws 318
9.61. Provisions about regulations 319
9.62. Governor may give directions as a consequence of making an order 319
9.63. Minister may give directions to resolve disputes between local governments 320
9.64. Governor may rectify omissions and irregularities 320
9.65. Orders made by the Governor or Minister 320
Division 7 — Other miscellaneous provisions
9.66. Delegation by Minister 321
9.67. Delegation by Departmental CEO 321
9.68. Local government to be notified of disposal of land 322
9.69. Land descriptions 322
9.69A. Notification under Corruption and Crime Commission Act 2003 323
Division 8 — Amendments to 1960 Act and transitional provisions
9.71. Transitional provisions 323
Schedule 2.1 — Provisions about creating, changing the boundaries of, and abolishing districts
1. Terms used in this Schedule 325
2. Making a proposal 325
3. Dealing with proposals 326
4. Notice of inquiry 327
5. Conduct of inquiry 327
6. Recommendation by Advisory Board 328
7. Minister may require a poll of electors 329
8. Electors may demand a poll on a recommended amalgamation 329
9. Procedure for holding poll 329
10. Minister may accept or reject recommendation 330
10A. Recommendations regarding names, wards and representation 330
11. Transitional arrangements for orders about districts 331
Schedule 2.2 — Provisions about names, wards and representation
1. Terms used in this Schedule 333
2. Advisory Board to make recommendations relating to new district 333
3. Who may make submissions about ward changes etc. 333
4. Dealing with submissions 334
5. Local government may propose ward changes or make minor proposals 334
6. Local government with wards to review periodically 335
7. Reviews 336
8. Matters to be considered in respect of wards 336
9. Proposal by local government 336
10. Recommendation by Advisory Board 337
11. Inquiry by Advisory Board 338
12. Minister may accept or reject recommendation 338
Schedule 2.3 — When and how mayors, presidents, deputy mayors and deputy presidents are elected by the council
Division 1 — Mayors and presidents
1. Terms used in this Division 339
2. When the council elects the mayor or president 339
3. CEO to preside 339
4. How the mayor or president is elected 339
5. Votes may be cast a second time 340
Division 2 — Deputy mayors and deputy presidents
6. Terms used in this Division 341
7. When the council elects the deputy mayor or deputy president 341
8. How the deputy mayor or deputy president is elected 341
9. Votes may be cast a second time 342
Division 3 — Validity of elections
10. Meaning of “election” 343
11. Complaints about the validity of an election 343
12. Complaints to go to a Court of Disputed Returns 343
13. No appeal 344
14. Certain defects do not affect an election 344
15. Regulations about retention and availability of electoral papers 344
Schedule 2.4 — Provisions about commissioners
1. Eligibility for appointment 345
2. Tenure 345
3. Vacancies 345
4. Vacancies may be filled 345
5. Payment of commissioners 346
6. Procedure at meetings of joint commissioners 346
Schedule 2.5 — Provisions about the Local Government Advisory Board
1. Term used in this Schedule 347
2. Membership of Advisory Board 347
3. Deputies 347
4. Submission of lists 348
5. Term of office 348
6. Vacation of office 349
7. Meetings 349
8. Remuneration and allowances 350
9. Protection 350
10. Staff 350
11. Delegation 350
12. Powers of inquiry 352
13. Investigations 352
14. Annual report 352
15. Offences 353
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
Division 1 — Preliminary
1. Terms used in this Schedule 358
Division 2 — One office elections
2. One office election: 2 candidates 358
3. One office election: 3 or more candidates 359
4. Count of first preference votes 359
5. Exclusion of candidate and transfer of votes if vacancy remains 359
6. Further exclusions if necessary 360
7. Filling vacancy if 2 candidates have equal votes after a transfer 360
8. Procedure to determine excluded candidate if votes equal 360
Division 3 — Elections for 2 or more councillors
9. Application of Division 361
10. Count of first preference votes and determination of quota361
11. Transfer of surplus votes if any vacancy remains 361
12. Further transfer of votes if any vacancy remains 362
13. Votes of other candidates not to be transferred to a candidate who has obtained a quota 363
14. Exclusion of candidate and transfer of votes if any vacancy remains 363
15. Further transfer of surplus votes if necessary 364
16. Further exclusions if necessary 364
17. Transfer of votes to a candidate to cease as soon as quota has been obtained 364
18. Filling final vacancy 365
19. No need for further count if number of continuing candidates equals number of vacancies 365
20. Order of transfer of surpluses 365
21. Procedure in case of equal surpluses 365
22. Surplus from earlier count or transfer to be transferred before later surplus 366
23. Procedure to determine excluded candidate if votes equal 366
24. When votes are to be set aside as finally dealt with 366
25. Transfers to be treated separately 367
Schedule 4.2 — Order of retirement from office of councillors
Schedule 5.1 — Provisions about standards panels
1. Term used in this Schedule 370
2. Membership of standards panel 370
3. Deputies 370
4. Submission of lists 371
5. Term of office 371
6. Vacation of office 371
7. Dissolution of standards panel 372
8. Meetings 372
9. Remuneration and allowances 373
10. Protection 373
11. Annual report 374
Schedule 6.1 — Provisions relating to the phasing in of valuations
1. Phasing in of certain valuations 375
2. Phasing in of rating based on gross rental values 377
Schedule 6.2 — Provisions relating to lease of land where rates or service charges unpaid
1. Form of lease 379
2. Application of rent received 379
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 381
2. Advertisement for sale 382
3. Power of sale 383
4. Power of local government to transfer or convey land 383
5. Application of purchase money 384
6. Receipt of the local government a discharge 386
7. If sale not completed within 12 months after commencement, proceedings lapse 386
8. Transfer of land to Crown or local government under section 6.71 386
Schedule 8.1 — Provisions about Inquiry Panels
1. Constitution of an Inquiry Panel 388
2. Term of appointment 388
3. Procedures and remuneration 389
Schedule 9.1 — Certain matters for which Governor may make regulations
1. Parking for disabled 390
2. Disturbing local government land or anything on it 391
3. Obstructing or encroaching on public thoroughfare 391
4. Separating land from public thoroughfare 391
5. Gates across public thoroughfares 391
6. Dangerous excavation in or near public thoroughfare 391
7. Crossing from public thoroughfare to private land or private thoroughfare 392
8. Private works on, over, or under public places 392
9. Protection of watercourses, drains, tunnels and bridges 393
10. Protection of thoroughfares from water damage 393
11. Works required for supply of gas or water 393
12. Wind erosion and sand drifts 394
Schedule 9.3 — Transitional provisions
Division 1 — Preliminary
1. Terms used in this Schedule 395
2. Interpretation Act 1984 applies 395
3. Construction of references in written laws 395
Division 2 — Continuation of constitutional arrangements, membership and appointments
4. Former districts continue as districts 396
5. Former municipalities continue as local governments 396
6. Former councils continue as previously constituted 397
7. Wards and representation 397
8. Former method of electing mayor or president continued 398
9. Commissioners continued 398
10. Regional councils continued 398
11. Local Government Associations continued 398
Division 3 — Electoral matters
12. Enrolment of certain electors may continue 399
13. Existing provisions continue for elections before 1997 ordinary elections 399
14. Transition from annual to biennial election system 400
14A. Transition to October elections 401
Division 4 — Administration
15. Employees 402
16. Superannuation schemes — transitional and savings 402
17. Long service benefits — transitional and savings 402
18. Committees continue until first ordinary elections 403
19. Delegations continue for up to a year 403
20. First annual report 403
21. First plan for principal activities 404
22. First code of conduct 404
23. First declaration by certain designated employees 404
24. Previous records to be kept by continuing authorities 404
Division 5 — Financial management and audit
25. Rateable land exemptions 404
26. Land declared to be exempt from the payment of rates 404
27. Basis of rates 405
28. Recovery of rates 405
29. Continuation of debentures issued 405
30. Reserve accounts 406
31. Borrowing — loan polls 406
32. Auditors’ appointments 407
Division 6 — Former by‑laws, uniform general by‑laws and regulations
33. Former by‑laws continued 407
34. First periodic review as a local law 408
35. Former uniform general by‑laws continued 408
36. Former regulations continued 409
Division 7 — Miscellaneous
37. Townsites 409
38. Gates across thoroughfares in cities or towns 409
39. Deferments under Rates and Charges (Rebates and Deferments) Act 1992 409
40. Commercial enterprises 410
41. Evidence in proceedings under former provisions 410
Notes
Compilation table 411
Provisions that have not come into operation 415
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.
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;
(d) is not disqualified for membership of the council under section 2.21, 2.22, 2.23 or 2.24; and
(e) is not disqualified by an order under section 5.113, 5.117 or 5.119 from holding office as a member of a council.
(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); No. 1 of 2007 s. 4.]
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 |