Local Government Act 1995

 

Local Government Act 1995

Contents

Part 1 — Introductory matters

1.1.Short title2

1.2.Commencement2

1.3.Content and intent2

1.4.Terms used3

1.5.Descriptions in italics not part of the law9

1.6.Crown not generally bound9

1.7.Local public notice9

1.8.Statewide public notice9

1.9.Decisions by absolute majority10

1.10.Decisions by special majority10

Part 2 — Constitution of local government

Division 1 — Districts and wards

2.1.State divided into districts11

2.2.Districts may be divided into wards12

2.3.Names of districts and wards12

2.4.District to be designated city, town or shire13

Division 2 — Local governments and councils of local governments

2.5.Local governments created as bodies corporate14

2.6.Local governments to be run by elected councils14

2.7.Role of council15

2.8.Role of mayor or president15

2.9.Role of deputy mayor or deputy president16

2.10.Role of councillors16

Division 3 — How offices on the council are filled

2.11.Alternative methods of filling office of mayor or president16

2.12.Electors may propose change of method17

2.12A.Procedure to change method to election by council17

2.13.When new method takes effect19

2.14.Extension of term in certain cases20

2.15.Filling office of deputy mayor or deputy president20

2.16.Filling offices of councillors20

Division 4 — Membership and size of the council

2.17.Members of council20

2.18.Fixing and changing number of councillors21

Division 5 — Qualifications for holding office on the council

2.19.Qualifications for election to council22

2.20.Members of parliament disqualified22

2.21.Disqualification because of insolvency23

2.22.Disqualification because of convictions23

2.23.Disqualification because of membership of another council24

2.24.Disqualification because of misapplication of funds or property24

2.25.Disqualification for failure to attend meetings24

2.26.Election to council terminates employment with local government26

2.27.Procedure to determine qualification to retain membership of council26

Division 6 — Terms of office on the council and vacation of office

2.28.Days on which terms begin and end28

2.29.Declaration31

2.30.Terms extended if ordinary elections delayed32

2.31.Resignation32

2.32.How extraordinary vacancies occur in offices elected by electors32

2.34.How extraordinary vacancies occur in offices elected by council33

2.35.Vacancies on restructure of districts, wards or membership34

2.36.Vacancies on dismissal of council or council member34

2.36A.Power to declare offices vacant if district to be abolished34

2.37.Power to declare offices vacant35

2.37A.Vacancies in all offices for any other reason35

Division 7 — Commissioners

2.38.Function of commissioner36

2.39.Appointment of commissioner36

2.40.Joint commissioners37

2.41.Appointment, tenure, meetings etc.37

2.42.Commissioner to make declaration37

2.43.Applicability of certain provisions of this Act37

Division 8 — Local Government Advisory Board

2.44.Advisory Board, establishment of38

2.45.Advisory Board, functions of38

Part 3 — Functions of local governments

Division 1 — General

3.1.General function39

3.2.Relationship to State Government39

3.3.Act not to affect Crown’s rights concerning alienated land40

3.4.Functions may be legislative or executive40

Division 2 — Legislative functions of local governments

Subdivision 1 — Local laws made under this Act

3.5.Legislative power of local governments40

3.6.Places outside district41

3.7.Inconsistency with written laws42

3.8.Local laws may adopt codes etc.42

3.9.Model local laws42

3.10.Creating offences and prescribing penalties43

Subdivision 2 — Local laws made under any Act

3.11.Subdivision applies to local laws made under any Act44

3.12.Procedure for making local laws44

3.13.Procedure where significant change in proposal46

3.14.Commencement of local laws46

3.15.Local laws to be publicised46

3.16.Periodic review of local laws46

3.17.Governor may amend or repeal local laws47

Division 3 — Executive functions of local governments

Subdivision 1 — Performing executive functions

3.18.Performing executive functions48

3.19.Places to be regarded as within district48

3.20.Performing functions outside district49

3.21.Duties when performing functions49

3.22.Compensation50

3.23.Arbitration51

Subdivision 2 — Certain provisions about land

3.24.Authorising persons under this Subdivision52

3.25.Notices requiring certain things to be done by owner or occupier of land52

3.26.Additional powers when notices given53

3.27.Particular things local governments can do on land that is not local government property54

Subdivision 3 — Powers of entry

3.28.When this Subdivision applies55

3.29.Powers of entry are additional55

3.30.Assistants and equipment55

3.31.General procedure for entering property55

3.32.Notice of entry56

3.33.Entry under warrant56

3.34.Entry in emergency57

3.35.Purpose of entry to be given on request58

3.36.Opening fences58

Subdivision 4 — Impounding abandoned vehicle wrecks and goods involved in certain contraventions

3.37.Contraventions that can lead to impounding59

3.38.Terms used59

3.39.Power to remove and impound60

3.40.Vehicle may be removed if goods to be impounded are in or on vehicle60

3.40A.Abandoned vehicle wreck may be taken60

3.41.Impounded perishable goods, notice to collect61

3.42.Impounded non‑perishable goods62

3.43.Impounded non‑perishable goods, court may confiscate62

3.44.Notice to collect goods if not confiscated62

3.45.Notice to include warning63

3.46.Goods may be withheld until costs paid63

3.47.Confiscated or uncollected goods, disposal of63

3.47A.Sick or injured animals, disposal of64

3.48.Impounding expenses, recovery of65

Subdivision 5 — Certain provisions about thoroughfares

3.50.Closing certain thoroughfares to vehicles66

3.50A.Partial closure of thoroughfare for repairs or maintenance67

3.51.Affected owners to be notified of certain proposals67

3.52.Public access to be maintained and plans kept68

Subdivision 6 — Various executive functions

3.53.Control of certain unvested facilities69

3.54.Reserves under control of local government70

3.55.Acquisition of land70

3.56.Tidal waters70

3.57.Tenders for providing goods or services70

3.58.Disposing of property71

3.59.Commercial enterprises by local governments72

3.60.No capacity to form or acquire control of body corporate76

Division 4 — Regional local governments and regional subsidiaries

3.61.Establishing regional local government76

3.62.Constitution and purpose of regional local government77

3.63.Dissolution or partial dissolution of regional local government77

3.64.Establishment agreement, what it must contain77

3.65.Establishment agreement, amendment of78

3.66.Application of enabling Acts to regional local government79

3.67.Inconsistency between regional and other local laws80

3.68.Other arrangements not affected80

3.69.Regional subsidiaries80

3.70.Regional subsidiaries to have charter81

3.70A.Audit requirements for regional subsidiaries82

3.71.Regulations about regional subsidiaries82

3.72.Other provisions and arrangements not affected82

Part 4 — Elections and other polls

Division 1 — Preliminary

4.1.Terms used84

4.1A.Conflict with Commonwealth or State election or referendum85

4.1B.Polling day may be changed where conflict with Commonwealth or State election or referendum86

Division 2 — Inaugural elections

4.2.Inaugural elections86

4.3.Polling day for inaugural election87

Division 3 — Ordinary elections

4.4.Ordinary elections87

4.5.Frequency of ordinary elections87

4.6.Election day for ordinary elections87

4.7.Ordinary elections day usually third Saturday in October88

Division 4 — Extraordinary elections

4.8.Extraordinary elections88

4.9.Election day for extraordinary election89

4.10.Extraordinary election can be held before resignation has taken effect89

Division 5 — Other elections

4.11.Elections after restructure of districts, wards or membership90

4.12.Elections after reinstatement of council90

4.13.Elections after all members’ offices become vacant90

4.14.Elections after council is dismissed90

4.15.Fresh election after election declared invalid91

Division 6 — Postponement and consolidation of elections

4.16.Postponement of elections to allow consolidation91

4.17.Cases in which vacant offices can remain unfilled92

4.18.Certain elections to be held as one93

Division 7 — Provisions about electoral officers and the conduct of elections

4.19.Returning officer94

4.20.CEO to be returning officer unless other arrangements made94

4.21.Deputy returning officers95

4.22.Returning officer to conduct elections95

4.23.Returning officer’s functions95

4.24.Electoral Commissioner’s functions96

4.25.Access to information96

4.26.Delegation96

4.27.Regulations about electoral officers and conduct of elections97

4.28.Fees and expenses97

Division 8 — Eligibility for enrolment

4.29.Eligibility of residents to be enrolled97

4.30.Eligibility of non‑resident owners and occupiers to be enrolled98

4.31.Rateable property: ownership and occupation99

4.32.Eligibility to enrol under s. 4.30, how to claim100

4.33.Claim of eligibility to enrol under s. 4.30, expiry of101

4.34.Accuracy of enrolment details to be maintained102

4.35.Decision that eligibility to enrol under s. 4.30 has ended102

Division 9 — Electoral process

Subdivision 1 — Stages of electoral process

4.36.Application and term used: election103

Subdivision 2 — Stage 1: Preparing the electoral roll

4.37.New roll for each election104

4.38.What roll consists of104

4.39.Close of enrolments105

4.40.Residents roll105

4.41.Owners and occupiers roll106

4.42.Supply of rolls to returning officer, members and candidates106

4.43.Correction of rolls106

4.44A.Alteration of rolls107

4.44.One enrolment per roll107

4.45.Failure to comply with time limits as to preparation of rolls108

4.46.Fresh roll may be required108

Subdivision 3 — Stage 2: Nomination of candidates

4.47.Nominations, call for108

4.48.Candidate, eligibility of109

4.49.How to make an effective nomination110

4.50.Deposits, how dealt with110

4.51.Nominations, rejection of110

4.52.Candidates’ details etc., exhibition of111

4.53.Nominations, cancellation of112

Subdivision 4 — Stage 3: After nominations close

4.54.Nominations to be declared113

4.55.Same number of candidates as vacancies113

4.56.More candidates than vacancies113

4.57.Less candidates than vacancies113

4.58.Candidates, death of after close of nominations114

4.59.Candidates, regulations about114

Subdivision 5 — Stage 4: Preparing for voting

4.60.Voting by electors115

4.61.Choice of methods of conducting election115

4.62.Polling places required116

4.63.Presiding and other officers, appointment of117

4.64.Public notice about election117

Subdivision 6 — Stage 5: Voting

4.65.Right to vote117

4.66.One vote for each elector117

4.67.Where to vote in person118

4.68.When to vote118

4.69.How to vote119

4.70.Presiding officer to maintain order at polling place119

4.71.Regulations about voting procedure119

Subdivision 7 — Stage 6: Counting the votes

4.72.Outcome of election to be determined120

4.73.Procedure when person is candidate in 2 elections121

4.74.How votes counted (Sch. 4.1)122

4.75.Giving effect to elector’s wishes122

4.76.Review of decisions on ballot papers122

Subdivision 8 — Stage 7: Declaring the result

4.77.Returning officer to declare result122

4.78.Order of retirement of councillors122

4.79.Report to Minister123

Division 10 — Validity of elections

4.80.Complaints about result of election123

4.81.Complaints to go to Court of Disputed Returns124

4.82.No appeal124

4.83.Validity of election124

4.84.Retention and availability of electoral papers, regulations about125

Division 11 — Electoral offences

4.85.Bribery and undue influence, offence125

4.86.Breach or neglect by officers, offence126

4.87.Printing and publication of electoral material127

4.88.Offence to print, publish or distribute misleading or deceptive material127

4.89.Canvassing in or near polling places, offence128

4.90.False statements, offence129

4.91.Nomination papers, ballot papers and ballot boxes, offences relating to129

4.92.Postal votes, offences relating to130

4.93.Interference with electors: infringement of secrecy, offence130

4.94.Other electoral offences130

4.95.Offences, attempts to commit131

4.96.Investigation of electoral misconduct131

4.97.Prosecutions132

4.98.Criminal Code not to apply132

Division 12 — Polls and referendums

4.99.Election procedures to apply to polls and referendums133

Part 5 — Administration

Division 1 — Introduction

5.1.Term used: committee134

5.2.Administration of local governments134

Division 2 — Council meetings, committees and their meetings and electors’ meetings

Subdivision 1 — Council meetings

5.3.Ordinary and special council meetings135

5.4.Calling council meetings135

5.5.Convening council meetings135

5.6.Who presides at council meetings135

5.7.Minister may reduce number for quorum and certain majorities136

Subdivision 2 — Committees and their meetings

5.8.Establishment of committees136

5.9.Committees, types of137

5.10.Committee members, appointment of137

5.11A.Deputy committee members138

5.11.Committee membership, tenure of139

5.12.Presiding members and deputies, election of140

5.13.Deputy presiding members, functions of140

5.14.Who acts if no presiding member141

5.15.Reduction of quorum for committees141

5.16.Delegation of some powers and duties to certain committees141

5.17.Limits on delegation of powers and duties to certain committees142

5.18.Register of delegations to committees142

Subdivision 3 — Matters affecting council and committee meetings

5.19.Quorum for meetings143

5.20.Decisions of councils and committees143

5.21.Voting143

5.22.Minutes of council and committee meetings144

5.23.Meetings generally open to public144

5.24.Question time for public146

5.25.Regulations about council and committee meetings and committees146

Subdivision 4 — Electors’ meetings

5.26.Term used: electors147

5.27.Electors’ general meetings148

5.28.Electors’ special meetings148

5.29.Convening electors’ meetings148

5.30.Who presides at electors’ meetings149

5.31.Procedure for electors’ meetings149

5.32.Minutes of electors’ meetings149

5.33.Decisions made at electors’ meetings150

Division 3 — Acting for the mayor or president

5.34.When deputy mayors and deputy presidents can act150

5.35.Who acts if no mayor, president or deputy150

Division 4 — Local government employees

5.36.Local government employees151

5.37.Senior employees152

5.38.Annual review of certain employees’ performances153

5.39.Contracts for CEO and senior employees153

5.40.Principles affecting employment by local governments155

5.41.Functions of CEO155

5.42.Delegation of some powers and duties to CEO156

5.43.Limits on delegations to CEO 156

5.44.CEO may delegate powers and duties to other employees157

5.45.Other matters relevant to delegations under this Division158

5.46.Register of, and records relevant to, delegations to CEO and employees158

5.47.Superannuation regulations159

5.48.Long service benefits for employees and employees of local government associations159

5.49.Workers’ compensation arrangement159

5.50.Payments to employees in addition to contract or award160

5.51.Employee who nominates for election to council to take leave161

Division 5 — Annual reports and planning

5.53.Annual reports162

5.54.Acceptance of annual reports163

5.55.Notice of annual reports163

5.55A.Publication of annual reports163

5.56.Planning for the future163

Division 6 — Disclosure of financial interests

Subdivision 1 — Disclosure of financial interests in matters affecting local government decisions

5.59.Terms used164

5.60.When person has an interest164

5.60A.Financial interest164

5.60B.Proximity interest165

5.61.Indirect financial interests165

5.62.Closely associated persons166

5.63.Some interests need not be disclosed167

5.65.Members’ interests in matters to be discussed at meetings to be disclosed170

5.66.Meeting to be informed of disclosures170

5.67.Disclosing members not to participate in meetings170

5.68.Councils and committees may allow members disclosing interests to participate etc. in meetings171

5.69.Minister may allow members disclosing interests to participate etc. in meetings172

5.69A.Minister may exempt committee members from disclosure requirements173

5.70.Employees to disclose interests relating to advice or reports173

5.71.Employees to disclose interests relating to delegated functions174

5.72.Defence to prosecution174

5.73.Disclosures to be minuted174

Subdivision 2 — Disclosure of financial interests in returns

5.74.Terms used174

5.75.Primary returns177

5.76.Annual returns177

5.77.Acknowledging receipt of returns178

5.78.Information to be disclosed in returns178

5.79.Real property178

5.80.Source of income179

5.81.Trusts180

5.82.Gifts181

5.83.Contributions to travel182

5.84.Interests and positions in corporations184

5.85.Debts185

5.86.Dispositions of property186

5.87.Discretionary disclosures generally187

Subdivision 3 — General

5.88.Register of financial interests188

5.89A.Register of gifts and contributions to travel188

5.89B.Offence to fail to disclose under sections 5.82 and 5.83189

5.89.Offence to give false or misleading information189

5.90.Offence to publish information in certain cases189

Division 7 — Access to information

5.91.Interpretation190

5.92.Access to information by council, committee members190

5.93.Improper use of information191

5.94.Public can inspect certain local government information191

5.95.Limits on right to inspect local government information193

5.96.Copies of information to be available195

5.97.Freedom of Information Act 1992 not affected195

Division 8 — Local government payments and gifts to its members

5.98.Fees etc. for council members195

5.98A.Allowance for deputy mayor or deputy president197

5.99.Annual fee for council members in lieu of fees for attending meetings198

5.99A.Allowances for council members in lieu of reimbursement of expenses198

5.100A.Gifts to council members199

5.100.Payments for certain committee members199

5.101.Payments for employee committee members200

5.101A.Regulations about payment of expenses200

5.102.Expense may be funded before actually incurred200

5.102AA. Apportionment of annual payments200

5.102AB. Repayment of advance annual payments if recipient ceases to hold office201

5.102AC. Application of this Division to regional local governments201

Division 9 — Conduct of certain officials

5.102A.Terms used202

5.103.Codes of conduct202

5.104.Other regulations about conduct of council members203

5.105.Breaches by council members203

5.106.Deciding whether breach occurred204

5.107.Complaining to complaints officer of minor breach204

5.108.Departmental CEO may send complaint of minor breach to complaints officer205

5.109.Complaint initiated by complaints officer206

5.110A.Withdrawal of complaint of minor breach207

5.110.Dealing with complaint of minor breach208

5.111.Dealing with recurrent breach210

5.112.Allegation of recurrent breach211

5.113.Punishment for recurrent breach211

5.114.Making complaint of serious breach212

5.115.Complaints officer to send complaint of serious breach to Departmental CEO212

5.116.Allegation by Departmental CEO of serious breach213

5.117.Punishment for serious breach214

5.118.Carrying out orders215

5.119.SAT’s enforcement powers216

5.120.Complaints officer216

5.121.Register of certain complaints of minor breaches216

5.122.Standards panels217

5.123.Confidentiality217

5.124.Giving false or misleading information218

5.125.Review of certain decisions218

Part 6 — Financial management

Division 1 — Introduction

6.1.Terms used220

Division 2 — Annual budget

6.2.Local government to prepare annual budget221

6.3.Budget for other circumstances222

Division 3 — Reporting on activities and finance

6.4.Financial report223

Division 4 — General financial provisions

6.5.Accounts and records223

6.6.Funds to be established224

6.7.Municipal fund224

6.8.Expenditure from municipal fund not included in annual budget224

6.9.Trust fund225

6.10.Financial management regulations226

6.11.Reserve accounts226

6.12.Power to defer, grant discounts, waive or write off debts227

6.13.Interest on money owing to local governments227

6.14.Power to invest228

Division 5 — Financing local government activities

Subdivision 1 — Introduction

6.15.Local government’s ability to receive revenue and income229

Subdivision 2 — Fees and charges

6.16.Imposition of fees and charges230

6.17.Setting level of fees and charges231

6.18.Effect of other written laws231

6.19.Local government to give notice of fees and charges232

Subdivision 3 — Borrowings

6.20.Power to borrow232

6.21.Restrictions on borrowing233

6.22.Appointment of receivers235

6.23.Powers of receivers235

6.24.Application of money236

Division 6 — Rates and service charges

Subdivision 1 — Introduction and basis of rating

6.25.Terms used237

6.26.Rateable land237

6.27.Multiple rating240

6.28.Basis of rates240

6.29.Valuation and rates on mining and petroleum interests241

6.30.Valuation of and rates on certain land242

6.31.Phasing in of certain valuations243

Subdivision 2 — Categories of rates and service charges

6.32.Rates and service charges244

6.33.Differential general rates245

6.34.Limit on revenue or income from general rates246

6.35.Minimum payment246

6.36.Local government to give notice of certain rates247

6.37.Specified area rates249

6.38.Service charges251

Subdivision 3 — Imposition of rates and service charges

6.39.Rate record253

6.40.Effect of amendment of rate record253

6.41.Service of rate notice255

Subdivision 4 — Payment of rates and service charges

6.42.Term used: service charge256

6.43.Rates and service charges are a charge on land256

6.44.Liability for rates or service charges256

6.45.Options for payment of rates or service charges256

6.46.Discounts258

6.47.Concessions258

6.48.Regulation of grant of discounts and concessions258

6.49.Agreement as to payment of rates and service charges258

6.50.Rates or service charges due and payable258

6.51.Accrual of interest on overdue rates or service charges259

6.52.Rates and service charges may be apportioned260

6.53.Land becoming or ceasing to be rateable land260

Subdivision 5 — Recovery of unpaid rates and service charges

6.54.Term used: service charge261

6.55.Recovery of rates and service charges261

6.56.Rates or service charges recoverable in court261

6.57.Non‑compliance with procedure in Act not to prevent recovery of rate or service charge262

6.58.Defence in special cases262

6.59.Question of title to land not to affect jurisdiction262

6.60.Local government may require lessee to pay rent263

6.61.Requirement to give name of person liable264

6.62.Application of money paid for rates and service charges264

Subdivision 6 — Actions against land where rates or service charges unpaid

6.63.Term used: service charge265

6.64.Actions to be taken265

6.65.Power to lease: procedure265

6.66.Effect of lease266

6.67.Release of property after payment of arrears266

6.68.Exercise of power to sell land267

6.69.Right to pay rates, service charges and costs, and stay proceedings268

6.70.Effect of changes in boundaries of local government area268

6.71.Power to transfer land to Crown or to local government268

6.72.Title to land sold or transferred269

6.73.Discharge of liability on sale of land270

6.74.Power to have land revested in Crown if rates in arrears 3 years270

6.75.Land to be vested in local government271

Subdivision 7 — Objections and review

6.76.Grounds of objection272

6.77.Review of decision of local government on objection273

6.78.Review of decision to refuse to extend time for objection273

6.79.New matters raised on review273

6.79B.Written reasons for certain determinations to be given and published274

6.80.Objections and reviews against valuations274

6.81.Objection not to affect liability to pay rates or service charges274

6.82.General review of imposition of rate or service charge274

Part 7 — Audit

Division 1 — Introduction

7.1.Terms used 276

Division 1A — Audit committee

7.1A.Audit committee277

7.1B.Delegation of some powers and duties to audit committees278

7.1C.Decisions of audit committees278

Division 2 — Appointment of auditors 

7.1D.Application278

7.2.Audit278

7.3.Appointment of auditors279

7.4.Disqualified person not to be auditor279

7.5.Approval of auditors280

7.6.Term of office of auditor280

7.7.Departmental CEO may appoint auditor281

7.8.Terms of appointment of auditors282

Division 3 — Conduct of audit 

7.8A.Application282

7.9.Audit to be conducted282

7.10.Powers of auditor283

7.11.Power to demand production of books etc.284

7.12.Employees and financial institutions to furnish particulars of money received284

Division 3A — Financial audit

7.12AA.Application 284

7.12AB.Conducting a financial audit285

7.12AC.Dispensing with a financial audit285

7.12AD.Reporting on a financial audit285

7.12AE.Fees for a financial audit286

Division 3B — Supplementary audit

7.12AF.Application 286

7.12AG.Conducting a supplementary audit286

7.12AH.Reporting on a supplementary audit286

7.12AI.Fees for a supplementary audit287

Division 3C — Performance audit

7.12AJ.Conducting a performance audit287

7.12AK.Reporting on a performance audit288

Division 3D — Other audits

7.12AL.Audits of accounts of related entities and certain subsidiary bodies288

Division 4 — General

7.12A.Duties of local government with respect to audits289

7.13.Regulations as to audits 290

Part 8 — Scrutiny of the affairs of local governments

Division 1 — Inquiries by the Minister or an authorised person

8.1.Terms used292

8.2.Minister or Departmental CEO may require information292

8.3.Inquiries by, or authorised by, Departmental CEO292

8.4.Scope and duration of authorisation293

8.5.Powers of authorised person294

8.6.Power to enter property295

8.7.Notice of entry295

8.8.Entry under warrant295

8.9.Exercise of powers296

8.10.Protection from liability296

8.11.Failure to comply with directions297

8.12.Referral to other authorities297

8.13.Authorised person’s report297

8.14.Copies to be given to local government and suspended council members297

8.15.Minister can take action to ensure that recommendations are put into effect299

8.15A.Local government may have to meet inquiry costs299

Division 1A — Intervention by the Minister in certain circumstances

Subdivision 1 — Council may be suspended or required to undertake remedial action

8.15B.Notice that council may be peremptorily suspended or required to undertake remedial action300

8.15C.Minister may order that council be peremptorily suspended or required to undertake remedial action300

Subdivision 2 — Council member may be suspended or required to undertake remedial action

8.15D.Terms used301

8.15E.Minister may suspend council member or require member to undertake remedial action302

8.15F.Period of suspension: order under section 8.15E304

8.15G.Suspension of certain council members may be extended while inquiry conducted305

8.15H.Reinstatement of council member whose suspension was extended under section 8.15G306

8.15I.Minister may suspend council member if member fails to undertake remedial action as ordered306

8.15J.Council member must inform CEO if charged with disqualification offence307

Subdivision 3 — Council member may be dismissed

8.15K.Minister may recommend that council member be dismissed308

8.15L.Governor may dismiss council member on recommendation of the Minister309

8.15M.Report setting out grounds to be made available to the public309

Division 2 — Inquiries by Inquiry Panels

8.16.Minister may institute inquiry310

8.17.Scope and duration of inquiry310

8.18.Local government to be informed310

8.19.Suspension of council while inquiry is held310

8.19A.Suspension of council member while inquiry is held311

8.20.Powers of Inquiry Panel312

8.21.Referral to other authorities312

8.22.Report of Inquiry Panel313

8.23.Copies to be given to local government and suspended council members, and made available to public314

8.24.Minister to decide what action to take on Inquiry Panel’s report315

8.25.Dismissal of council or council member by Governor316

8.26.Suspension of council if Minister’s order not complied with316

8.27.Local government may have to meet inquiry costs316

Division 3 — General provisions about suspension and dismissal of councils and council members

Subdivision 1 — Provisions about suspension of councils

8.28.Period of suspension: reinstatement of council317

8.29.Effect of suspension of council318

8.30.Appointment of commissioner while council is suspended318

Subdivision 2 — Provisions about suspension of council members

8.30A.Period of suspension: orders under sections 8.15I and 8.19A319

8.30B.Effect of suspension of council member319

8.30C.Continuing effect of suspension320

8.30D.Reinstatement of suspended council member321

Subdivision 3 — Provisions about dismissal of councils

8.31.No dismissal of council except on Inquiry Panel’s recommendation321

8.32.When dismissal of council takes effect321

8.33.Appointment of commissioner on dismissal of council321

8.34.Elections following dismissal of council322

Subdivision 4 — Provisions about dismissal of council members

8.34A.No dismissal of council member except on recommendation of Minister or Inquiry Panel322

8.34B.When dismissal of council member takes effect322

Division 4 — Misapplication of funds and property

8.35.Interpretation322

8.36.Authorisation323

8.37.Powers related to inquiries323

8.38.Liability for misapplication of funds or property324

8.39.Action to recover amounts misapplied324

8.40.Notice to be given before action is taken324

8.41.Decision whether or not to proceed with action325

8.42.Power of court to order payment325

8.43.Disqualification of person who has misapplied funds or property326

8.44.Evidence of authorisation326

Part 9 — Miscellaneous provisions

Division 1 — Objections and review

9.1.When this Division applies327

9.2.Terms used328

9.3.Rights of affected person extended to certain owners328

9.4.Advice of objection and review rights328

9.5.Objection may be lodged329

9.6.Dealing with objection329

9.7.Review330

9.9.Suspension of effect of decision330

Division 2 — Enforcement and legal proceedings

Subdivision 1 — Miscellaneous provisions about enforcement

9.10.Appointment of authorised persons331

9.11.Persons found committing breach of Act to give name on demand332

9.12.Obstructing person acting under written law, offence333

9.13.Onus of proof in vehicle offences may be shifted333

9.13A.Notice to prevent continuing contravention334

9.14.Penalty for offence when not otherwise specified335

Subdivision 2 — Infringement notices

9.15.Terms used335

9.16.Notice, giving of to alleged offender335

9.17.Notice, content of336

9.18.Notice placing onus on vehicle owner337

9.19.Extension of time338

9.20.Withdrawal of notice338

9.21.Benefit of paying modified penalty338

9.22.Application of penalties collected338

Subdivision 3 — General provisions about legal proceedings

9.24.Prosecutions, commencing339

9.25.Prosecutions, time limit for339

9.26.Prosecuting accused whose name unknown340

9.27.Civil remedy not affected by proceedings for offence340

9.28.Interests of public340

9.29.Representing local government in court341

Subdivision 4 — Evidence in legal proceedings

9.30.When this Subdivision applies341

9.31.Terms used342

9.32.Evidence Act 1906 not excluded342

9.33.Presumptions about certificates342

9.34.Evidence of local laws342

9.35.Evidence of text adopted by local laws343

9.36.Using Gazette notice as evidence343

9.37.Using meeting minutes as evidence343

9.38.Evidence of documents coming from local government343

9.39.Proving document given to another party344

9.40.Using copy of rate record as evidence344

9.41.Proving ownership, occupancy, and other things by certificate345

9.42.Person may be alleged to be owner or occupier of land346

9.43.Certificate of returning officer about election346

9.44.Spouses and de facto partners presumed to be living with one another346

9.45.Evidence of authorisation or approval346

9.46.Things may be alleged to be property of local government347

9.47.Proof of certain matters not required347

9.48.Evidence of thoroughfare348

Division 3 — Documents

9.49A.Execution of documents349

9.49B.Contract formalities350

9.49.Documents, how authenticated350

9.50.Giving documents to persons, generally350

9.51.Giving documents to local government350

9.52.Giving documents in difficult cases351

9.53.Other provisions about giving documents351

9.54.Defects in documents352

9.55.Effect of document on persons deriving title352

Division 4 — Protection from liability

9.56.Certain persons protected from liability for wrongdoing352

9.57.Local government protected from certain liability353

Division 5 — Associations of local government

9.58.Constitution of associations of local government354

Division 6 — Regulations, directions and orders

9.59.General regulations355

9.60.Regulations that operate as local laws355

9.61.Provisions about regulations356

9.62.Governor may give directions as consequence of making order357

9.63.Minister may give directions to resolve disputes between local governments357

9.64.Governor may rectify omissions and irregularities358

9.65.Orders made by Governor or Minister358

Division 7 — Other miscellaneous provisions

9.66.Delegation by Minister359

9.67.Delegation by Departmental CEO359

9.68.Local government to be notified of disposal of land359

9.69.Land descriptions360

9.69A.Notification under Corruption, Crime and Misconduct Act 2003361

Division 8 — Amendments to 1960 Act and transitional provisions

9.71.Transitional provisions361

Schedule 2.1 — Provisions about creating, changing the boundaries of, and abolishing districts

1.Terms used363

2.Making a proposal363

3.Dealing with proposals364

4.Notice of inquiry364

5.Conduct of inquiry365

6.Recommendation by Advisory Board366

7.Minister may require poll of electors367

8.Electors may demand poll on recommended amalgamation367

9.Procedure for holding poll367

10.Minister may accept or reject recommendation368

10A.Recommendations regarding names, wards and representation368

11.Transitional arrangements for orders about districts369

12.Registration of documents371

Schedule 2.2 — Provisions about names, wards and representation

1.Terms used373

2.Advisory Board to make recommendations relating to new district373

3.Who may make submissions about ward changes etc.373

4.Dealing with submissions374

5.Local government may propose ward changes or make minor proposals374

6.Local government with wards to review periodically375

7.Reviews376

8.Matters to be considered in respect of wards376

9.Proposal by local government376

10.Recommendation by Advisory Board377

11.Inquiry by Advisory Board378

12.Minister may accept or reject recommendation378

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 used379

2.When council elects mayor or president379

3.CEO to preside379

4.How mayor or president is elected379

5.Votes may be cast a second time380

Division 2 — Deputy mayors and deputy presidents

6.Terms used381

7.When council elects deputy mayor or deputy president381

8.How deputy mayor or deputy president is elected381

9.Votes may be cast a second time382

Division 3 — Validity of elections

10.Term used: election383

11.Complaints about validity of election383

12.Complaints to go to Court of Disputed Returns383

13.No appeal384

14.Certain defects do not affect election384

15.Regulations about retention and availability of electoral papers384

Schedule 2.4 — Provisions about commissioners

1.Eligibility for appointment385

2.Tenure385

3.Vacancies385

4.Vacancies may be filled385

5.Payment of commissioners386

6.Procedure at meetings of joint commissioners386

Schedule 2.5 — Provisions about the Local Government Advisory Board

1.Term used: member387

2.Membership of Advisory Board387

3.Deputies387

4.Submission of lists388

5.Term of office388

6.Vacation of office389

7.Meetings389

8.Remuneration and allowances390

9.Protection390

10.Staff390

11.Delegation391

12.Powers of inquiry392

13.Investigations392

14.Annual report393

15.Offences393

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 5.1 — Provisions about standards panels

1.Term used: member401

2.Membership of standards panel401

3.Deputies401

4.Submission of lists402

5.Term of office402

6.Vacation of office402

7.Dissolution of standards panel403

8.Meetings403

9.Remuneration and allowances404

10.Protection404

11.Annual report405

Schedule 6.1 — Provisions relating to the phasing in of valuations

1.Phasing in of certain valuations406

2.Phasing in of rating based on gross rental values407

Schedule 6.2 — Provisions relating to lease of land where rates or service charges unpaid

1.Form of lease410

2.Application of rent received410

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 land412

2.Advertisement for sale413

3.Power of sale414

4.Power of local government to transfer or convey land414

5.Application of purchase money415

6.Receipt by local government sufficient discharge416

7.If sale not completed within 12 months after commencement, proceedings lapse417

8.Transfer of land to Crown or local government under s. 6.71417

Schedule 8.1 — Provisions about Inquiry Panels

1.Constitution of Inquiry Panel419

2.Term of appointment420

3.Procedures and remuneration420

Schedule 9.1 — Certain matters for which Governor may make regulations

1.Parking for disabled421

2.Disturbing local government land or anything on it422

3.Obstructing or encroaching on public thoroughfare422

4.Separating land from public thoroughfare422

5.Gates across public thoroughfares422

6.Dangerous excavation in or near public thoroughfare422

7.Crossing from public thoroughfare to private land or private thoroughfare423

8.Private works on, over, or under public places423

9.Protection of watercourses, drains, tunnels and bridges424

10.Protection of thoroughfares from water damage424

11.Works required for supply of gas or water424

12.Wind erosion and sand drifts425

Schedule 9.3 — Transitional provisions

Division 1 — Provisions for Local Government Act 1995

Subdivision 1 — Preliminary

1.Terms used426

2.Interpretation Act 1984 applies426

3.Construction of references in written laws426

Subdivision 2 — Continuation of constitutional arrangements, membership and appointments

4.Former districts continue as districts427

5.Former municipalities continue as local governments428

6.Former councils continue as previously constituted428

7.Wards and representation428

8.Former method of electing mayor or president continued429

9.Commissioners continued429

10.Regional councils continued429

11.Local Government Associations continued429

Subdivision 3 — Electoral matters

12.Enrolment of certain electors may continue430

13.Existing provisions continue for elections before 1997 ordinary elections430

14.Transition from annual to biennial election system431

14A.Transition to October elections432

Subdivision 4 — Administration

15.Employees433

16.Superannuation schemes: transitional and savings433

17.Long service benefits:  transitional and savings433

18.Committees continue until first ordinary elections434

19.Delegations continue for up to a year434

20.First annual report434

21.First plan for principal activities434

22.First code of conduct435

23.First declaration by certain designated employees435

24.Previous records to be kept by continuing authorities435

Subdivision 5 — Financial management and audit

25.Rateable land exemptions435

26.Land declared to be exempt from payment of rates435

27.Basis of rates436

28.Recovery of rates436

29.Continuation of debentures issued436

30.Reserve accounts437

31.Borrowing: loan polls437

Subdivision 6 — Former by-laws, uniform general by-laws and regulations

33.Former by‑laws continued438

34.First periodic review as a local law439

35.Former uniform general by‑laws continued439

36.Former regulations continued439

Subdivision 7 — Miscellaneous

37.Townsites440

38.Gates across thoroughfares in cities or towns440

39.Deferments under Rates and Charges (Rebates and Deferments) Act 1992440

40.Commercial enterprises440

41.Evidence in proceedings under former provisions441

Division 2 — Provisions for the Local Government Amendment Act 2012

42.Term used: amending Act441

43.Saving provisions for CEOs441

44.Section 6.14(1) does not apply to existing investments442

Division 3 — Provisions for Local Government Legislation Amendment Act 2016

45.Term used: amending Act443

46.Part 5 Division 9: complaints443

47.Part 9 Division 2 Subdivision 2443

48.Schedule 2.1: transitional arrangements443

Division 4 — Provisions for the Local Government Amendment (Auditing) Act 2017

49.Terms used444

50.Minister to publish status of audit contracts444

51.Audit contracts may be terminated after completion of FY17/18 audit444

52.Audit contracts are terminated after completion of FY19/20 audit445

53.No breach of contract445

54.Transitional regulations445

Notes

Compilation table447

Provisions that have not come into operation453

Defined terms

 

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; and

(b)section 1.3 summarizes the main content of the Act and what it intends to achieve; and

(c)section 1.5 explains the legal status of italicized notes such as this; and

(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; and

(b)describing the functions of local governments; and

(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; and

(b)greater community participation in the decisions and affairs of local governments; and

(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: No. 49 of 2004 s. 15.]

1.4.Terms used

In this Act, unless the contrary intention appears — 

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;

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;

Advisory Board means the Local Government Advisory Board established by section 2.44;

auditor means —

(a)in relation to an audit, other than a performance audit —

(i)in relation to a local government that has an audit contract that is in force — a person for the time being appointed under Part 7 Division 2 to be the auditor of the local government; and

(ii)in relation to a local government that does not have an audit contract that is in force — the Auditor General;

and

(b)in relation to a performance audit — the Auditor General;

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; and

(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; or

(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; or

(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;

or

(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; or

(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; or

(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; or

(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; or

(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 and Geothermal Energy Resources Act 1967 holds in respect of the land a permit, drilling reservation, lease or licence 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;

regional local government means a regional local government established under section 3.61;

regional subsidiary means a regional subsidiary established under section 3.69;

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: 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; No. 35 of 2007 s. 99(2); No. 26 of 2016 s. 4; No. 5 of 2017 s. 4(1).]

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; and

(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: 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; and

(b)the creation of local governments; and

(c)the creation and membership of elected councils; and

(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; or

(b)changing the boundaries of a district; or

(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; or

(b)creating new wards in a district that is already divided into wards; or

(c)changing the boundaries of a ward; or

(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 designated 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.Role of council

(1)The council — 

(a)governs 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.

[Section 2.7 amended: No. 17 of 2009 s. 4.]

2.8.Role of mayor or president

(1)The mayor or president — 

(a)presides at meetings in accordance with this Act; and

(b)provides leadership and guidance to the community in the district; and

(c)carries out civic and ceremonial duties on behalf of the local government; and

(d)speaks on behalf of the local government; and

(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.Role of 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.Role of councillors

A councillor — 

(a)represents the interests of electors, ratepayers and residents of the district; and

(b)provides leadership and guidance to the community in the district; and

(c)facilitates communication between the community and the council; and

(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 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: 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: 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;

and

(b)the Electoral Commissioner is to —

(i)make the summary available to the electors before the poll is conducted; and

(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: No. 49 of 2004 s. 17(4).]

2.13.When 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: 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 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: No. 49 of 2004 s. 18.]

2.16.Filling offices of 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.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 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; or

(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; and

(b)is an elector of the district; and

[(c)deleted]

(d)is not disqualified for membership of the council under section 2.20, 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: No. 1 of 1998 s. 5(1); No. 1 of 2007 s. 4; No. 2 of 2012 s. 4.]

2.20.Members of parliament disqualified

(1)A person is disqualified for membership 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; or

(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; or

(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.

[Section 2.20 amended: No. 2 of 2012 s. 5.]

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: 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; or

(c)has been convicted of an offence for which the indictable penalty was or included —

(i)imprisonment for life; or

(ii)imprisonment for more than 5 years.

(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;

indictable penalty means the penalty that the relevant law specified for the offence in the event of a person being convicted of the offence on indictment;

offence means an offence against a law of this State, the Commonwealth, another State or a Territory;

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.

[Section 2.22 amended: No. 2 of 2012 s. 12; No. 31 of 2018 s. 4.]

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, unless all of the meetings are within a period of 3 months.

(3A)Leave is not to be granted in respect of —

(a)a meeting that has concluded; or

(b)the part of a meeting before the granting of leave.

(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 obtaining leave of the council, throughout 3 consecutive ordinary meetings of the council is disqualified from continuing his or her membership of the council, unless all of the meetings are within a 2 month period.

(5A)If a council holds 3 or more ordinary meetings within a 2 month period, and a member is absent without leave throughout each of those meetings, the member is disqualified if he or she is absent without leave throughout the ordinary meeting of the council immediately following the end of that period.

(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 — 

(i)while 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); or

(ii)while proceedings in connection with the disqualification of the member have been commenced and are pending; or

(iiia)while the member is suspended under section 5.117(1)(a)(iv) or Part 8; or

(iii)while the election of the member is disputed and proceedings relating to the disputed election have been commenced and are pending.

(6)A member who before the commencement of the Local Government Amendment Act 2009 section 5 1 was granted leave during an ordinary meeting of the council from which the member was absent is to be taken to have first obtained leave for the remainder of that meeting.

[Section 2.25 amended: No. 49 of 2004 s. 19(1); No. 17 of 2009 s. 5; No. 31 of 2018 s. 5.]

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 2.20, 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 14 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)applies to the State Administrative Tribunal asking for a declaration as to whether or not the member is disqualified and gives a copy of the application to the CEO,

the member is taken to have been disqualified for the reasons indicated in the CEO’s notice.

(7A)If subsection (6) applies to a member the CEO is to give the member a written notice to that effect.

(7)The CEO or any other person 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)deleted]

(9)A person who acts as a member of a council while disqualified commits an offence.

Penalty: $5 000 or imprisonment for one year.

(10)This section as in force immediately before the commencement of the Local Government Amendment Act 2009 section 6 1 applies to and in respect of a notice given under section 2.27(3) before that commencement.

[Section 2.27 amended: No. 55 of 2004 s. 685; No. 17 of 2009 s. 6; No. 2 of 2012 s. 6.]

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
OR

councillor

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
OR

councillor

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
OR

councillor

Elected at an extraordinary election to fill a vacancy arising by resignation 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
OR

councillor

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
OR

councillor

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

When the person is elected

When the mayor or president is next elected at or after the local government’s next ordinary elections

12.

Deputy mayor or deputy president

Elected at any election

When the person is elected

At the start of the first meeting of the council after the local government’s next ordinary elections

[Section 2.28 amended: No. 66 of 2006 s. 4; No. 2 of 2012 s. 7.]

2.29.Declaration

(1)A person elected as an elector mayor or president or as a councillor has to make a declaration in the prescribed form before acting in the office.

(2)A person elected by the council as mayor, president, deputy mayor or deputy president has to make a declaration in the prescribed form before acting in the office.

(3)A declaration required by this section is to be taken or made before a prescribed person.

(4)A person who acts in an office contrary to this section commits an offence.

Penalty: $5 000 or imprisonment for one year.

[Section 2.29 amended: No. 24 of 2005 s. 57.]

2.30.Terms extended if ordinary elections delayed

Where an ordinary election is deferred or adjourned under this Act until after the third Saturday in October in any year, a member of a council whose term of office expires on that day can continue to act in the office until the substituted election day.

[Section 2.30 amended: No. 66 of 2006 s. 5.]

2.31.Resignation

(1)An elector mayor or president may resign from the office of mayor or president.

(2)A councillor may — 

(a)resign from the office of councillor;

(b)resign from the office of councillor mayor or president, deputy mayor or deputy president.

(3)Written notice of resignation is to be signed and dated by the person who is resigning and delivered to the CEO.

(4)The resignation takes effect from the date of delivery of the notice or from a later day specified in the notice.

2.32.How extraordinary vacancies occur in offices elected by electors

The office of a member of a council as an elector mayor or president or as a councillor becomes vacant if the member — 

(a)dies; or

(b)resigns from the office; or

(c)does not make the declaration required by section 2.29(1) within 2 months after being declared elected to the office; or

(d)advises or accepts under section 2.27 that he or she is disqualified, or is declared to be disqualified by the State Administrative Tribunal acting on an application under section 2.27; or

(da)is disqualified by an order under section 5.113, 5.117 or 5.119 from holding office as a member of a council; or

(db)is dismissed under section 8.15L or 8.25(2); or

(e)becomes the holder of any office or position in the employment of the local government; or

(f)having been elected to an office of councillor, is elected by the electors to the office of mayor or president of the council.

[Section 2.32 amended: No. 55 of 2004 s. 686; No. 24 of 2005 s. 58; No. 1 of 2007 s. 5; No. 31 of 2018 s. 6.]

[2.33.Deleted: No. 2 of 2012 s. 8.]

2.34.How extraordinary vacancies occur in offices elected by council

(1)The office of a member of a council as a councillor mayor or president, deputy mayor or deputy president becomes vacant if the member —

(a)ceases to be a councillor under section 2.32; or

(b)resigns from the office; or

(c)does not make the declaration required by section 2.29(2) within 2 months after being elected to the office; or

(d)being the deputy mayor or deputy president, is elected by the council as mayor or president of the council.

(2)A person who holds an office referred to in subsection (1) immediately before an ordinary elections day continues to hold that office after that day (whether or not he or she ceases to be a councillor on that day) until his or her term of office ends under item 11 or 12 of the Table to section 2.28.

[Section 2.34 amended: No. 2 of 2012 s. 9.]

2.35.Vacancies on restructure of districts, wards or membership

Directions given by order under section 9.62 to give effect to an order under one or more of sections 2.1, 2.2 and 2.18 may direct which offices of members (if any) of a council are to become vacant, and when those offices become vacant.

2.36.Vacancies on dismissal of council or council member

(1)If a council is dismissed under section 8.25(1)the offices of the members become vacant from the time when the order dismissing the council takes effect.

(2)If a council member is dismissed under section 8.15L or 8.25(2) the office of the member becomes vacant from the time when the order dismissing the member takes effect.

[Section 2.36 amended: No. 31 of 2018 s. 7.]

2.36A.Power to declare offices vacant if district to be abolished

(1)If an order abolishing a district is made so as to take effect on a day other than the day on which that order is published in the Gazette, the Governor may, by order, declare all the offices of members of the council to be vacant.

(2)A declaration under this section —

(a)has no effect if it is made more than 2 years before the date on which the district is to be abolished; and

(b)takes effect from the time specified in it.

(3)When a declaration has been made under this section the Governor may, by order, appoint a person as commissioner of the local government until the district is abolished.

[Section 2.36A inserted: No. 64 of 1998 s. 4(1).]

2.37.Power to declare offices vacant

(1)If more than ½ of the offices of members of a council are vacant for any reason, the Governor may, by order, declare all the remaining offices of members to be vacant.

(2)If the Minister receives notification under section 5.3(3) about the failure of a council to hold a meeting, the Governor may, by order, declare all the offices of members of the council to be vacant.

(3)A declaration under this section takes effect from the time specified in the declaration.

(4)When a declaration has been made under this section the Governor may, by order, appoint a person to be the commissioner of the local government until the offices of members of the council are filled again and the new council holds its first meeting.

(5)An order under subsection (4) is to fix a day for any poll needed for the election of members to fill the vacant offices again.

(6)The day fixed is to be a day that is as soon as practicable after the declaration takes effect and allows enough time for the electoral requirements to be complied with, but is not to be later than 2 years after the day on which the declaration takes effect.

[Section 2.37 amended: No. 49 of 2004 s. 21.]

2.37A.Vacancies in all offices for any other reason

(1)If all the offices of members of a council have become vacant, or are going to become vacant, for any reason other than an order under section 2.36A(1), 2.37(1) or (2) or 8.25(1), the Governor may, by order, appoint a person to be the commissioner of the local government until the offices of members of the council are filled again and the new council holds its first meeting.

(2)An order under subsection (1) is to fix a day for any poll needed for the election of members to fill the vacant offices again.

(3)The day fixed is to be a day that is as soon as practicable after the appointment takes effect and allows enough time for the electoral requirements to be complied with, but is not to be later than 2 years after the day on which the appointment takes effect.

[Section 2.37A inserted: No. 1 of 1998 s. 6(1); amended: No. 64 of 1998 s. 4(3); No. 49 of 2004 s. 22; No. 31 of 2018 s. 8.]

Division 7 — Commissioners

2.38.Function of commissioner

(1)The function of a commissioner of a local government is to exercise the powers and discharge the duties of the council of the local government and its mayor or president.

(2)A commissioner is to be regarded as being the council.

(3)Unless section 2.43 applies, or the contrary intention appears, a reference in this Act or another written law to a local government, a council or a member of a council includes reference to a commissioner.

2.39.Appointment of commissioner

(1)A commissioner of a local government can be appointed by the Governor under the power given by section 2.6(4), 2.36A(3), 2.37(4), 2.37A(1), 8.30 or 8.33 and not otherwise.

(2)Subsection (1) does not prevent the appointment of a person under Schedule 2.4 clause 4 to fill a vacancy in the office of commissioner.

[Section 2.39 amended: No. 1 of 1998 s. 6(3); No. 64 of 1998 s. 4(4); No. 17 of 2009 s. 7.]

2.40.Joint commissioners

(1) A power to appoint a commissioner includes power to appoint 3 or 5 commissioners to administer the local government and to appoint one of them to be the chairperson and another to be the deputy chairperson.

(2)If 3 or 5 commissioners are appointed — 

(a)they are to exercise the powers and discharge the duties of the council of the local government jointly; and

(b)the chairperson is to exercise the powers and discharge the duties of the mayor or president; and

(c)the deputy chairperson is to exercise the powers and discharge the duties of the deputy mayor or deputy president.

2.41.Appointment, tenure, meetings etc.

Schedule 2.4 (which contains provisions about commissioners) has effect.

2.42.Commissioner to make declaration

(1)A person cannot act in the office of commissioner until he or she has made a declaration in the prescribed form.

(2)A person who acts in an office contrary to this section commits an offence.

Penalty: $5 000 or imprisonment for one year.

[Section 2.42 amended: No. 24 of 2005 s. 59.]

2.43.Applicability of certain provisions of this Act

(1)Division 5 does not apply to a commissioner except to the extent required by Schedule 2.4, clauses 1 and 3(c).

(2)Division 6 does not apply to a commissioner.

(3)Part 5, Division 6 does not apply to an interest that a commissioner has in a question relating to a payment or reimbursement under Schedule 2.4, clause 5.

Division 8 — Local Government Advisory Board

2.44.Advisory Board, establishment of

(1)There is established a body to be known as the Local Government Advisory Board.

(2)Schedule 2.5 (which contains provisions about the Local Government Advisory Board) has effect.

2.45.Advisory Board, functions of

(1)The functions of the Advisory Board include — 

(a)considering and, if required by this Act, inquiring into any proposal made to it under this Act that an order be made to do any or all of the matters in section 2.1, 2.2, 2.3, 2.18(1) or 2.18(3); and

(b)making recommendations to the Minister on those proposals; and

(c)carrying out any other inquiries the Minister may direct; and

(d)considering whether as a consequence of any recommendation the Board proposes to make to the Minister, the making of an order to do any or any other of the matters in section 2.1, 2.2, 2.3, 2.18(1) or 2.18(3) in respect of a relevant district is or may be necessary.

(2)In subsection (1)(d) — 

relevant district means a district to which the proposed recommendation relates or an adjoining district.

(3)If the Advisory Board considers that the making of an order referred to in subsection (1)(d) is or may be necessary, the Board is to consider or inquire into the making of any such order as if it had received a proposal that such an order be made.

Part 3 — Functions of local governments

What this Part is about

This Part describes the functions of a local government and deals with some important issues that the performance of those functions may involve.

In particular — 

(a)Division 1 describes the general function of a local government and contains some other general provisions;

(b)Divisions 2 and 3 deal with legislative and executive functions respectively;

(c)Division 4 allows functions to be performed by regional local governments.

Division 1 — General

3.1.General function

(1)The general function of a local government is to provide for the good government of persons in its district.

(2)The scope of the general function of a local government is to be construed in the context of its other functions under this Act or any other written law and any constraints imposed by this Act or any other written law on the performance of its functions.

(3)A liberal approach is to be taken to the construction of the scope of the general function of a local government.

3.2.Relationship to State Government

The scope of the general function of a local government in relation to its district is not limited by reason only that the Government of the State performs or may perform functions of a like nature.

3.3.Act not to affect Crown’s rights concerning alienated land

Nothing that this Act authorises a local government or anyone else to do prevents the Crown or a person acting on its behalf from doing anything relating to or affecting land alienated from the Crown that could have been done if this Act had not been enacted.

3.4.Functions may be legislative or executive

The general function of a local government includes legislative and executive functions.

Division 2 — Legislative functions of local governments

Subdivision 1 — Local laws made under this Act

3.5.Legislative power of local governments

(1)A local government may make local laws under this Act prescribing all matters that are required or permitted to be prescribed by a local law, or are necessary or convenient to be so prescribed, for it to perform any of its functions under this Act.

(2)A local law made under this Act does not apply outside the local government’s district unless it is made to apply outside the district under section 3.6.

(3)The power conferred on a local government by subsection (1) is in addition to any power to make local laws conferred on it by any other Act.

(4A)Nothing in the Building Act 2011 prevents a local government from making local laws under this Act about building work, demolition work, a standard for the construction or demolition of buildings or incidental structures, or the use and maintenance of, and requirements in relation to, existing buildings or incidental structures, as those terms are defined in section 3 of that Act.

(4B)Nothing in the Health (Miscellaneous Provisions) Act 1911 or the Public Health Act 2016 prevents a local government from making local laws under this Act about matters relating to public health (as defined in the Public Health Act 2016 section 4(1)).

(4)Regulations may set out — 

(a)matters about which, or purposes for which, local laws are not to be made; or

(b)kinds of local laws that are not to be made,

and a local government cannot make a local law about such a matter, or for such a purpose or of such a kind.

(5)Regulations may set out such transitional arrangements as are necessary or convenient to deal with a local law ceasing to have effect because the power to make it has been removed by regulations under subsection (4).

[Section 3.5 amended: No. 64 of 1998 s. 5; No. 24 of 2011 s. 166(2); No. 19 of 2016 s. 166.]

3.6.Places outside district

(1)If the Governor’s approval has been first obtained, a local government may make a local law under this Act that applies outside its district.

(2)A local government cannot, under subsection (1), make a local law that applies to — 

(a)a part of the State that is in the district of another local government; or

(b)a part of the State to which a local law made by another local government concerning the same subject matter applies under this section.

(3)The Governor may revoke any approval given under subsection (1) and, after that revocation, a local law made under the approval ceases to apply to the part of the State for which the approval was given.

(4)The Minister is to cause notice of any revocation under subsection (3) to be published in the Gazette.

3.7.Inconsistency with written laws

A local law made under this Act is inoperative to the extent that it is inconsistent with this Act or any other written law.

3.8.Local laws may adopt codes etc.

(1)A local law made under this Act may adopt the text of — 

(a)any model local law, or amendment to it, published under section 3.9; or

(b)a local law of any other local government; or

(c)any code, rules, specifications, or standard issued by Standards Australia or by such other body as is specified in the local law.

(2)The text may be adopted — 

(a)wholly or in part; or

(b)as modified by the local law; or

(c)as it exists at a particular date or, except if the text of a model local law is being adopted, as amended from time to time.

(3)The adoption may be direct, by reference made in the local law, or indirect, by reference made in any text that is itself directly or indirectly adopted.

[Section 3.8 amended: No. 74 of 2003 s. 79.]

3.9.Model local laws

(1)The Governor may cause to be prepared and published in the Gazette model local laws the provisions of which a local law made under this Act may adopt by reference, with or without modifications.

(2)Model local laws have no effect except to the extent that they are adopted.

(3)The Governor may, by notice published in the Gazette, amend a model local law published under this section.

(4)An amendment of a model local law does not affect any local law that adopted the model local law before the amendment but the amendment may be adopted by a further local law.

3.10.Creating offences and prescribing penalties

(1)A local law made under this Act may provide that contravention of a provision of the local law is an offence, and may provide for the offence to be punishable on conviction by a penalty not exceeding a fine of $5 000.

(2)If the offence is of a continuing nature, the local law may make the person liable to a further penalty not exceeding a fine of $500 in respect of each day or part of a day during which the offence has continued.

(3)The local law may provide for the imposition of a minimum penalty for the offence.

(4)The level of the penalty may be related to — 

(a)the circumstances or extent of the offence;

(b)whether the offender has committed previous offences and, if so, the number of previous offences that the offender has committed.

[(5)deleted]

(6)A local law made under this Act may specify the method and the means by which any fines imposed are to be paid and collected, or recovered.

[Section 3.10 amended: No. 1 of 1998 s. 7.]

Subdivision 2 — Local laws made under any Act

3.11.Subdivision applies to local laws made under any Act

This Subdivision applies to local laws made under this Act and the procedure for making them and, unless a contrary intention appears in that other Act, to local laws made under any other Act, and the procedure for making them.

3.12.Procedure for making local laws

(1)In making a local law a local government is to follow the procedure described in this section, in the sequence in which it is described.

(2A)Despite subsection (1), a failure to follow the procedure described in this section does not invalidate a local law if there has been substantial compliance with the procedure.

(2)At a council meeting the person presiding is to give notice to the meeting of the purpose and effect of the proposed local law in the prescribed manner.

(3)The local government is to — 

(a)give Statewide public notice stating that — 

(i)the local government proposes to make a local law the purpose and effect of which is summarized in the notice; and

(ii)a copy of the proposed local law may be inspected or obtained at any place specified in the notice; and

(iii)submissions about the proposed local law 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

(b)as soon as the notice is given, give a copy of the proposed local law and a copy of the notice to the Minister and, if another Minister administers the Act under which the local law is proposed to be made, to that other Minister; and

(c)provide a copy of the proposed local law, in accordance with the notice, to any person requesting it.

(3a)A notice under subsection (3) is also to be published and exhibited as if it were a local public notice.

(4)After the last day for submissions, the local government is to consider any submissions made and may make the local law* as proposed or make a local law* that is not significantly different from what was proposed.

* Absolute majority required.

(5)After making the local law, the local government is to publish it in the Gazette and give a copy of it to the Minister and, if another Minister administers the Act under which the local law is proposed to be made, to that other Minister.

(6)After the local law has been published in the Gazette the local government is to give local public notice — 

(a)stating the title of the local law; and

(b)summarizing the purpose and effect of the local law (specifying the day on which it comes into operation); and

(c)advising that copies of the local law may be inspected or obtained from the local government’s office.

(7)The Minister may give directions to local governments requiring them to provide to the Parliament copies of local laws they have made and any explanatory or other material relating to them.

(8)In this section —

making in relation to a local law, includes making a local law to amend the text of, or repeal, a local law.

[Section 3.12 amended: No. 1 of 1998 s. 8; No. 64 of 1998 s. 6; No. 49 of 2004 s. 16(4) and 23; No. 26 of 2016 s. 5.]

3.13.Procedure where significant change in proposal

If during the procedure for making a proposed local law the local government decides to make a local law that would be significantly different from what it first proposed, the local government is to recommence the procedure.

3.14.Commencement of local laws

(1)Unless it is made under section 3.17, a local law comes into operation on the 14th day after the day on which it is published in the Gazette or on such later day as may be specified in the local law.

(2)A local law made under section 3.17 comes into operation on the day on which it is published in the Gazette or on such later day as may be specified in the local law.

[Section 3.14 amended: No. 1 of 1998 s. 9.]

3.15.Local laws to be publicised

A local government is to take reasonable steps to ensure that the inhabitants of the district are informed of the purpose and effect of all of its local laws.

3.16.Periodic review of local laws

(1)Within a period of 8 years from the day when a local law commenced or a report of a review of the local law was accepted under this section, as the case requires, a local government is to carry out a review of the local law to determine whether or not it considers that it should be repealed or amended.

(2)The local government is to give Statewide public notice stating that — 

(a)the local government proposes to review the local law; and

(b)a copy of the local law may be inspected or obtained at any place specified in the notice; and

(c)submissions about the local law 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.

(2a)A notice under subsection (2) is also to be published and exhibited as if it were a local public notice.

(3)After the last day for submissions, the local government is to consider any submissions made and cause a report of the review to be prepared and submitted to its council.

(4)When its council has considered the report, the local government may determine* whether or not it considers that the local law should be repealed or amended.

* Absolute majority required.

[Section 3.16 amended: No. 64 of 1998 s. 7; No. 49 of 2004 s. 24.]

3.17.Governor may amend or repeal local laws

(1)The Governor may make local laws to amend the text of, or repeal, a local law.

(2)Subsection (1) does not include the power to amend a local law to include in it any provision that bears no reasonable relationship to the local law as in force before the amendment.

(3)The Minister is to give a local government notice in writing of any local law that the Governor makes to amend the text of, or repeal, any of the local government’s local laws.

(4)Section 5.94 applies as if a local law made under this section by the Governor were a local law made by the local government in accordance with section 3.12.

Division 3 — Executive functions of local governments

Subdivision 1 — Performing executive functions

3.18.Performing executive functions

(1)A local government is to administer its local laws and may do all other things that are necessary or convenient to be done for, or in connection with, performing its functions under this Act.

(2)In performing its executive functions, a local government may provide services and facilities.

(3)A local government is to satisfy itself that services and facilities that it provides — 

(a)integrate and coordinate, so far as practicable, with any provided by the Commonwealth, the State or any public body; and

(b)do not duplicate, to an extent that the local government considers inappropriate, services or facilities provided by the Commonwealth, the State or any other body or person, whether public or private; and

(c)are managed efficiently and effectively.

3.19.Places to be regarded as within district

(1)For the purposes of the performance by a local government of any of its executive functions, its district is to be regarded as including — 

(a)any part of another district in relation to which it has been given approval by the local government of that district to perform that function; and

(b)any part of the State in relation to which it has been given approval by the Governor to perform that function.

(2)Approval cannot be given under subsection (1)(b) in relation to a part of the State that is in a district.

(3)The Governor may revoke any approval given under subsection (1)(b).

(4)If the Governor has, under section 3.6, given approval for a local government to make a local law that has effect as if the local government’s district included a part of the State that is not in a district, that approval is to be taken to include approval under this section to the extent necessary for the proper administration of that local law.

3.20.Performing functions outside district

(1)Things done by a local government in performing its executive functions may be done outside its own district but before it can do anything on land outside its own district that is not local government property of that local government it is required to have obtained the consent of — 

(a)the owner of the land; and

(b)if the land is occupied, the occupier of the land; and

(c)if the land is under the control or management of any other person, that other person.

(2)This section does not apply to anything that a local government does in the district of another local government if it is done on behalf of the local government of that district.

3.21.Duties when performing functions

(1)In performing its executive functions, a local government, so far as is reasonable and practicable, is to — 

(a)ensure that — 

(i)the lawful use of any land, thoroughfare or premises is not obstructed, and any reasonable request that a person makes to avoid such obstruction is met; and

(ii)as little harm or inconvenience is caused and as little damage is done as is possible; and

(iii)danger to any person or property does not arise from anything done on land; and

(iv)anything belonging to it, or to a person who has exercised a power of entry on its behalf, that has been left on any land, premises or thing entered is removed as soon as practicable unless this Act expressly allows it to be left there;

and

(b)ensure that — 

(i)buildings, fences, and other structures are not disturbed nor damaged; and

(ii)when it enters land that is fenced, it enters through the existing and usual openings in the fence unless it is expressly authorised to open the fence; and

(iii)any physical damage done to any land, premises or thing, is immediately made good unless compensation has been or is to be paid.

(2)Subsection (1)(b) does not apply to any land, premises or thing that is local government property.

3.22.Compensation

(1)If a person who is — 

(a)the owner or occupier of land granted in fee simple; or

(b)the occupier of land held under lease or on conditional terms of purchase from the Crown, except for pastoral or timber purposes,

sustains damage through the performance by a local government of its functions under this Act, the local government is to compensate the person if the person requests compensation unless it is otherwise expressly stated in subsection (5) or in Schedule 3.1 or Schedule 3.2.

(2)Despite subsection (1), regulations amending Schedule 3.1 or Schedule 3.2 may exclude or limit the obligation of a local government to pay compensation for a particular matter.

(3)The assessment of damage for which compensation is to be paid is to include the value of any material taken under Subdivision 2.

(4)A dispute about the amount of compensation is to be determined by arbitration in accordance with section 3.23.

(5)Compensation is not payable for damage sustained through a local government — 

(a)draining water onto land to the extent that the water follows a natural watercourse; or

(b)closing or restricting the use of a thoroughfare under section 3.50 or a power given by any other written law; or

(c)performing functions under section 3.51(2)(b); or

(d)performing any other prescribed function.

(6)This section does not limit section 9.57.

(7)Regulations may — 

(a)prescribe the time within which compensation may be claimed and procedures for making claims;

(b)make provision as to how compensation for damage is to be assessed.

[Section 3.22 amended: No. 64 of 1998 s. 14(2).]

3.23.Arbitration

If a matter is to be determined by arbitration in accordance with this section — 

(a)if the parties have not signed or otherwise assented to an agreement to refer the matter to arbitration, the matter is nevertheless to be regarded as having been referred for arbitration under the Commercial Arbitration Act 2012; and

(b)the Commercial Arbitration Act 2012 applies in respect of the reference and the arbitration; and

(c)the determination is to be made by 2 arbitrators, one to be appointed by each party, but this paragraph does not exclude the provisions of the Commercial Arbitration Act 2012 that apply if a party defaults in the exercise of a power of appointment.

[Section 3.23 amended: No. 23 of 2012 s. 45.]

Subdivision 2 — Certain provisions about land

3.24.Authorising persons under this Subdivision

The powers given to a local government by this Subdivision can only be exercised on behalf of the local government by a person expressly authorised by it to exercise those powers.

3.25.Notices requiring certain things to be done by owner or occupier of land

(1)A local government may give a person who is the owner or, unless Schedule 3.1 indicates otherwise, the occupier of land a notice in writing relating to the land requiring the person to do anything specified in the notice that — 

(a)is prescribed in Schedule 3.1, Division 1; or

(b)is for the purpose of remedying or mitigating the effects of any offence against a provision prescribed in Schedule 3.1, Division 2.

(2)Schedule 3.1 may be amended by regulations.

(3)If the notice is given to an occupier who is not the owner of the land, the owner is to be informed in writing that the notice was given.

(4)A person who is given a notice under subsection (1) is not prevented from complying with it because of the terms on which the land is held.

(5)A person who is given a notice under subsection (1) may apply to the State Administrative Tribunal for a review of the decision to give the notice.

(6)A person who fails to comply with a notice under subsection (1) commits an offence.

[Section 3.25 amended: No. 55 of 2004 s. 687.]

3.26.Additional powers when notices given

(1)This section applies when a notice is given under section 3.25(1).

(2)If the person who is given the notice (notice recipient) fails to comply with it, the local government may do anything that it considers necessary to achieve, so far as is practicable, the purpose for which the notice was given.

(3)The local government may recover the cost of anything it does under subsection (2) as a debt due from the person who failed to comply with the notice.

(4)If a notice recipient — 

(a)incurs expense in complying with any requirement of the notice; or

(b)fails to comply with such a requirement and, as a consequence, is fined or has to pay to a local government the cost it incurs in doing anything under subsection (2),

the notice recipient may apply to a court for an order under subsection (6).

(5)In subsection (4) —

court means a court that would have jurisdiction to hear an action to recover a debt of the amount of the expense, fine or cost sought to be recovered by the notice recipient.

(6)On an application under subsection (4) the court may order —

(a)if the notice recipient is the owner, the occupier; or

(b)if the notice recipient is the occupier, the owner,

to pay to the notice recipient so much of that expense, fine or cost as the court considers fair and reasonable in the circumstances.

(7)In determining what is fair and reasonable the court is to have regard to —

(a)the type of land involved; and

(b)the terms on which the occupier is occupying the land; and

(c)any other matter the court considers to be relevant.

[Section 3.26 amended: No. 1 of 1998 s. 10.]

3.27.Particular things local governments can do on land that is not local government property

(1)A local government may, in performing its general function, do any of the things prescribed in Schedule 3.2 even though the land on which it is done is not local government property and the local government does not have consent to do it.

(2A)In subsection (1) land includes Crown land the subject of a pastoral lease within the meaning of the Land Administration Act 1997 section 3.

(2)Schedule 3.2 may be amended by regulations.

(3)If Schedule 3.2 expressly states that this subsection applies, subsection (1) does not authorise anything to be done on land that is being used as the site or curtilage of a building or has been developed in any other way, or is cultivated.

(4A)For the purposes of subsection (3), planting pasture on land for grazing does not amount to cultivating the land.

(4)Nothing in subsection (3) prevents regulations amending Schedule 3.2 from stating that subsection (3) applies, or excluding its application, in relation to a particular matter.

[Section 3.27 amended: No. 17 of 2009 s. 8]

Subdivision 3 — Powers of entry

3.28.When this Subdivision applies

The powers of entry conferred by this Subdivision may be used for performing any function that a local government has under this Act if entry is required for the performance of the function or in any other case in which entry is authorised by this Act other than by a local law.

3.29.Powers of entry are additional

The powers of entry upon land conferred by this Subdivision are in addition to and not in derogation of any power of entry conferred by any other law.

3.30.Assistants and equipment

Entry under this Subdivision may be made with such assistants and equipment as are considered necessary for the purpose for which entry is required.

3.31.General procedure for entering property

(1)Except in an emergency or if the entry is authorised by the warrant of a justice, entry by or on behalf of a local government on to any land, premises or thing is not lawful unless — 

(a)the consent of the owner or occupier has been obtained; or

(b)notice has been given under section 3.32.

(2)If notice has been given under section 3.32, a person authorised by the local government to do so may lawfully enter the land, premises or thing without the consent of the owner or occupier unless the owner or occupier or a person authorised by the owner or occupier objects to the entry.

(3)The powers conferred on a local government under this section may be exercised instead of the powers conferred under the Public Works Act 1902 and are not subject to any qualification or restriction by any provision of that Act.

3.32.Notice of entry

(1)A notice of an intended entry is to be given to the owner or occupier of the land, premises or thing that is to be entered.

(2)The notice is to specify the purpose for which the entry is required and continues to have effect for so long as that requirement continues.

(3)The notice is to be given not less than 24 hours before the power of entry is exercised.

(4)Successive entries for the purpose specified in the notice are to be regarded as entries to which that notice relates.

3.33.Entry under warrant

(1)In the circumstances described in subsection (2), a justice may by warrant authorise a local government by its employees, together with such other persons as are named or described in the warrant, or a police officer, to enter any land, premises or thing using such force as is necessary.

(2)A warrant may be granted under subsection (1) where a justice is satisfied that the entry is reasonably required by a local government for the purpose of performing any of its functions, but — 

(a)entry has been refused or is opposed or prevented; or

(b)entry cannot be obtained; or

(c)notice cannot be given under section 3.32 without unreasonable difficulty or without unreasonably delaying entry.

(3)A warrant granted under subsection (1) — 

(a)is to be in the prescribed form; and

(b)is to specify the purpose for which the land, premises or thing may be entered; and

(c)continues to have effect until the purpose for which it was granted has been satisfied.

3.34.Entry in emergency

(1)In an emergency a local government may lawfully enter any land, premises or thing immediately and without notice and perform any of its functions as it considers appropriate to deal with the emergency.

(2)For the purposes of this section, an emergency exists where the local government or its CEO is of the opinion that the circumstances are such that compliance with the requirements for obtaining entry other than under this section would be impractical or unreasonable because of, or because of the imminent risk of — 

(a)injury or illness to any person; or

(b)a natural or other disaster or emergency; or

(c)such other occurrence as is prescribed for the purposes of this section.

(3)A local government may use reasonable force to exercise the power of entry given by subsection (1).

(4)A local government may exercise the power of entry given by subsection (1) at any time while the emergency exists and for so long subsequently as is reasonably required.

(5)Although notice of an intended entry under this section is not generally required, a local government is to give notice of an intended entry of land under this section to the owner or occupier of the land where it is practicable to do so.

3.35.Purpose of entry to be given on request

A person who enters or who has entered any land, premises or thing on behalf of a local government is to give particulars of the power by virtue of which the local government claims a right of entry on being requested to do so.

3.36.Opening fences

(1)This section applies only if it is expressly stated in Schedule 3.2.

(2)Subsection (1) does not prevent regulations amending Schedule 3.2 from stating that this section applies, or excluding the application of this section, in relation to a particular matter.

(3)If this section applies and it is not practicable to enter land that is fenced through the existing and usual openings in the fence, the local government may, on giving 3 days’ notice in writing to the owner or occupier of the land that it intends to do so, open the fence.

(4)If it opens the fence the local government is to provide at the opening an effective gate or, if the owner of the land agrees, a device across the gap in the fence that enables motor traffic to pass through the gap and prevents the straying of livestock through the gap.

(5)If a gate is provided a person who, without the occupier’s consent, leaves the gate open when it is not in use commits an offence.

(6)If a gate is provided, when the local government no longer requires the opening, it is to immediately remove the gate and make good the fence unless the owner agrees to its retention.

(7)The owner and occupier may, in a particular case, relieve the local government of any obligation that it has under this section.

Subdivision 4 — Impounding abandoned vehicle wrecks and goods involved in certain contraventions

[Heading amended: No. 8 of 2009 s. 87.]

3.37.Contraventions that can lead to impounding

(1)Regulations may prescribe any contravention of a regulation or local law made under this Act to be a contravention that can lead to impounding.

(2)Regulations may exclude the application of particular provisions of this Subdivision.

3.38.Terms used

In this Subdivision — 

alleged offender means the person who is alleged to have committed a contravention that can lead to impounding;

contravention that can lead to impounding means anything prescribed to be a contravention that can lead to impounding;

goods means any goods involved in a contravention that can lead to impounding, and includes — 

(a)a vehicle; or

(ab)an animal; or

(b)a stall or other structure temporarily placed on land,

involved in such a contravention;

non‑perishable goods includes animals;

specified, in relation to a notice, means specified in the notice;

vehicle means a vehicle for which a vehicle licence is required under the Road Traffic (Vehicles) Act 2012 if the vehicle is to be used on a road.

[Section 3.38 amended: No. 64 of 1998 s. 8; No. 28 of 2001 s. 33; No. 8 of 2012 s. 121.]

3.39.Power to remove and impound

(1)An employee authorised by a local government for the purpose may remove and impound any goods that are involved in a contravention that can lead to impounding.

(2)A person may use reasonable force to exercise the power given by subsection (1).

3.40.Vehicle may be removed if goods to be impounded are in or on vehicle

(1)Where under section 3.39 an employee may remove and impound any goods that are in or on a vehicle that is not itself to be impounded and, because of their size, nature or quantity or for any other reason, it is not convenient to unload and deal with them where they are, the employee may enter the vehicle for the purpose of removing it to a place where the goods may be conveniently unloaded and impounded.

(2)Where a vehicle is removed under subsection (1) the local government is to allow the alleged offender, as soon as practicable after the goods are unloaded from the vehicle, to resume control of the vehicle.

(3)If the person entitled to resume control of the vehicle is not present when the goods are unloaded or fails to resume control of the vehicle, the local government is to give notice to the person who is the holder of the requisite vehicle licence or permit under the Road Traffic (Vehicles) Act 2012 in respect of the vehicle, advising that the vehicle may be collected from a place specified during such hours as are specified.

[Section 3.40 amended: No. 8 of 2012 s. 122.]

3.40A.Abandoned vehicle wreck may be taken

(1)An employee authorised by a local government for the purpose may remove and impound a vehicle that, in the opinion of the local government, is an abandoned vehicle wreck.

(2)If, within 7 days after a vehicle is removed under subsection (1), the owner of the vehicle is identified, the local government is to give notice to that person advising that the vehicle may be collected from a place specified during such hours as are specified in the notice.

(3)A notice is to include a short statement of the effect of subsection (4)(b) and the effect of the relevant provisions of sections 3.46 and 3.47.

(4)If —

(a)after 7 days from the removal of a vehicle under subsection (1), the owner of the vehicle has not been identified; or

(b)after 7 days from being given notice under subsection (2), the owner of the vehicle has not collected the vehicle,

the local government may declare that the vehicle is an abandoned vehicle wreck.

(5)In this section —

abandoned vehicle wreck means a vehicle —

(a)that is not operational; and

(b)the owner of which has not been identified by the local government after using all reasonable avenues to do so; and

(c)that has a value that is less than the prescribed value calculated in the prescribed manner.

[Section 3.40A inserted: No. 49 of 2004 s. 25(1).]

3.41.Impounded perishable goods, notice to collect

(1)When any perishable goods are being removed under section 3.39 the employee removing them is required to personally give the person from whose charge they are removed notice that the goods may be collected from a place specified during such hours as are specified.

(2)The giving of the notice does not prevent a prosecution from being instituted against the alleged offender.

3.42.Impounded non‑perishable goods

(1)When any non‑perishable goods have been removed and impounded under section 3.39 the local government is required to either — 

(a)institute a prosecution against the alleged offender; or

(b)give the alleged offender notice that the goods may be collected from a place specified during such hours as are specified.

(2)If after 7 days after the goods were removed, a local government has been unable to give the alleged offender a notice under subsection (1)(b) because it has been unable, after making reasonable efforts to do so, to find the alleged offender, the local government is to be taken to have given that notice.

[Section 3.42 amended: No. 64 of 1998 s. 9.]

3.43.Impounded non‑perishable goods, court may confiscate

When a court convicts an alleged offender the court may, in addition to imposing any other penalty, order that any non‑perishable goods removed and impounded under section 3.39 be confiscated.

3.44.Notice to collect goods if not confiscated

Where non‑perishable goods have been removed and impounded under section 3.39 and a prosecution is instituted, if the alleged offender — 

(a)is not convicted; or

(b)is convicted but the court does not order that the goods be confiscated,

the local government is required to give the alleged offender notice that the goods may be collected from a place specified during such hours as are specified.

3.45.Notice to include warning

A notice is to include a short statement of the effect of the relevant provisions of sections 3.46, 3.47 and 3.48.

3.46.Goods may be withheld until costs paid

(1)A local government may refuse to allow goods impounded under section 3.39 or 3.40A to be collected until the costs of removing, impounding and keeping them have been paid to the local government.

(2)A local government may refuse to allow goods removed under section 3.40 or 3.40A to be collected until the costs of removing and keeping them have been paid to the local government.

[Section 3.46 inserted: No. 64 of 1998 s. 10; amended: No. 49 of 2004 s. 25(2) and (3).]

3.47.Confiscated or uncollected goods, disposal of

(1)The local government may sell or otherwise dispose of any goods that have been ordered to be confiscated under section 3.43.

(2)The local government may sell or otherwise dispose of any vehicle that has not been collected within —

(a)2 months of a notice having been given under section 3.40(3); or

(b)7 days of a declaration being made under section 3.40A(4) that the vehicle is an abandoned vehicle wreck.

(2a)The local government may sell or otherwise dispose of impounded goods that have not been collected within the period specified in subsection (2b) of —

(a)a notice having been given under section 3.42(1)(b) or 3.44; or

(b)being impounded if the local government has been unable, after making reasonable efforts to do so, to give that notice to the alleged offender.

(2b)The period after which goods may be sold or otherwise disposed of under subsection (2a) is —

(a)for perishable goods — 3 days;

(b)for animals — 7 days;

(ca)for prescribed non‑perishable goods — one month;

(c)for other non‑perishable goods — 2 months.

(3)Section 3.58 applies to the sale of goods under this section as if they were property referred to in that section.

(4)Money received by a local government from the sale of goods under subsection (2a) is to be credited to its trust fund except to the extent required to meet the costs and expenses incurred by the local government in removing, impounding and selling the goods.

(5)Money received by a local government from the sale of a vehicle under subsection (2) is to be credited to its trust fund except to the extent required to meet the costs referred to in section 3.46 and the expenses incurred by the local government in selling the vehicle.

(6)Unless this section requires it to be credited to its trust fund, money received by a local government from the sale under this section of any goods is to be credited to its municipal fund.

[Section 3.47 amended: No. 64 of 1998 s. 11; No. 49 of 2004 s. 25(4); No. 17 of 2009 s. 9.]

3.47A.Sick or injured animals, disposal of

(1)If an impounded animal is ill or injured to such an extent that treating it is not practicable the local government may humanely destroy the animal and dispose of the carcass.

(2)A local government must not destroy an animal under subsection (1) unless —

(a)because of the state of the animal, destroying it is urgent; or

(b)the local government has —

(i)taken reasonable steps to notify the owner; and

(ii)whether or not notice has been given under subparagraph (i), allowed the owner a reasonable opportunity to collect the animal.

(3)Subsection (2)(b) does not justify the destruction of an animal before it has been impounded for at least 7 days.

[Section 3.47A inserted: No. 64 of 1998 s. 12.]

3.48.Impounding expenses, recovery of

If goods are removed and impounded under section 3.39 and the alleged offender is convicted, the local government may, by action in a court of competent jurisdiction, recover from the alleged offender — 

(a)if the goods are not sold under section 3.47, the expenses incurred by the local government in removing and impounding them and in disposing of them if they are disposed of under section 3.47; and

(b)if the goods are confiscated and sold under section 3.47, the amount, if any, by which the money received from the sale and credited to the municipal fund under section 3.47(6) is insufficient to meet expenses incurred by the local government in removing, impounding, and selling them; and

(c)if the goods are not confiscated but are sold under section 3.47, the amount, if any, by which the money received from the sale is insufficient to meet the costs and expenses referred to in section 3.47(4) or (5), as the case requires.

[Section 3.48 amended: No. 64 of 1998 s. 13.]

Subdivision 5 — Certain provisions about thoroughfares

[3.49.Deleted: No. 64 of 1998 s. 14(1).]

3.50.Closing certain thoroughfares to vehicles

(1)A local government may close any thoroughfare that it manages to the passage of vehicles, wholly or partially, for a period not exceeding 4 weeks.

(1a)A local government may, by local public notice, order that a thoroughfare that it manages is wholly or partially closed to the passage of vehicles for a period exceeding 4 weeks.

(2)The order may limit the closure to vehicles of any class, to particular times, or to such other case or class of case as may be specified in the order and may contain exceptions.

[(3)deleted]

(4)Before it makes an order wholly or partially closing a thoroughfare to the passage of vehicles for a period exceeding 4 weeks or continuing the closure of a thoroughfare, the local government is to — 

(a)give local public notice of the proposed order giving details of the proposal, including the location of the thoroughfare and where, when, and why it would be closed, and inviting submissions from any person who wishes to make a submission; and

(b)give written notice to each person who — 

(i)is prescribed for the purposes of this section; or

(ii)owns land that is prescribed for the purposes of this section;

and

(c)allow a reasonable time for submissions to be made and consider any submissions made.

(5)The local government is to send to the Commissioner of Main Roads appointed under the Main Roads Act 1930 a copy of the contents of the notice required by subsection (4)(a).

(6)An order under this section has effect according to its terms, but may be revoked by the local government, or by the Minister, by order of which local public notice is given.

[(7)deleted]

(8)If, under subsection (1), a thoroughfare is closed without giving local public notice, the local government is to give local public notice of the closure as soon as practicable after the thoroughfare is closed.

(9)The requirement in subsection (8) ceases to apply if the thoroughfare is reopened.

[Section 3.50 amended: No. 1 of 1998 s. 11; No. 64 of 1998 s. 15; No. 49 of 2004 s. 26.]

3.50A.Partial closure of thoroughfare for repairs or maintenance

Despite section 3.50, a local government may partially and temporarily close a thoroughfare, without giving local public notice, if the closure —

(a)is for the purpose of carrying out repairs or maintenance; and

(b)is unlikely to have a significant adverse effect on users of the thoroughfare.

[Section 3.50A inserted: No. 64 of 1998 s. 16.]

3.51.Affected owners to be notified of certain proposals

(1)In this section — 

person having an interest, in relation to doing anything, means a person who — 

(a)is the owner of the land in respect of which that thing is done, or any land that is likely to be adversely affected by doing that thing; or

(b)is shown on the title to any of the land mentioned in paragraph (a) as holding an interest in any of that land; or

(c)is prescribed for the purposes of this section.

(2)This section applies to — 

(a)fixing or altering the level of, or the alignment of, a public thoroughfare; or

(b)draining water from a public thoroughfare or other public place onto adjoining land.

(3)Before doing anything to which this section applies, a local government is to — 

(a)give notice of what is proposed to be done giving details of the proposal and inviting submissions from any person who wishes to make a submission; and

(b)allow a reasonable time for submissions to be made and consider any submissions made.

(4)The notice is to be given —

(a)in writing to each person having an interest; and

(b)if any land is likely to be adversely affected by the doing of the thing, by local public notice.

[Section 3.51 amended: No. 64 of 1998 s. 17.]

3.52.Public access to be maintained and plans kept

(1)This section applies in respect of a thoroughfare only if it is in the metropolitan area or on land that has been constituted a townsite under section 10 of the Land Act 1933 5.

(2)Except to the extent that it is authorised by law to close them or restrict their use, a local government is to ensure that public thoroughfares are kept open for public use.

(3)In fixing or altering the level of, or the alignment of, a public thoroughfare, a local government is to ensure that access by vehicle to land adjoining the thoroughfare can be reasonably provided.

(4)A local government is to keep plans of the levels and alignments of public thoroughfares that are under its control or management, and make those plans available for public inspection.

Subdivision 6 — Various executive functions

3.53.Control of certain unvested facilities

(1)In this section — 

former section 300 means section 300 of the Local Government Act 1960 4 as in force before the commencement of this Act;

otherwise unvested facility means a thoroughfare, bridge, jetty, drain, or watercourse belonging to the Crown, the responsibility for controlling or managing which is not vested in any person other than under this section.

(2)A local government is responsible for controlling and managing every otherwise unvested facility within its district unless subsection (5) states that this section does not apply.

(3)If the facility is partially within each of 2 or more districts, it is to be controlled and managed as the local governments for the districts concerned agree or, if they do not agree, as the Minister directs.

(4)An agreement or direction under subsection (3) has effect according to its terms.

(5)This section does not apply if any person was, immediately before the commencement of this Act, responsible for controlling or managing the facility unless — 

(a)the responsibility arose under the former section 300; or

(b)the Governor, by order, declares that the facility is to be controlled and managed under this section.

3.54.Reserves under control of local government

(1)If land reserved under the Land Administration Act 1997 is vested in or placed under the control and management of a local government, the local government may do anything for the purpose of controlling and managing that land that it could do under section 5 of the Parks and Reserves Act 1895 if it were a Board appointed under that Act to manage and control the land and for that purpose a reference in that section to a by‑law is to be read as a reference to a local law.

(2)Subsection (1) is subject to any express provision to the contrary made by an order under the Land Administration Act 1997 in respect of the land.

[Section 3.54 amended: No. 49 of 2004 s. 74(4).]

3.55.Acquisition of land

A local government can only take land under Part 9 of the Land Administration Act 1997 if it is in, or is to be regarded as being included in, its own district.

[Section 3.55 amended: No. 24 of 2000 s. 22.]

3.56.Tidal waters

A local government can only dredge in tidal waters or reclaim land that is at any time covered by tidal waters if it first obtains the consent, in writing, of the Minister responsible for the administration of the Transport Co‑ordination Act 1966.

3.57.Tenders for providing goods or services

(1)A local government is required to invite tenders before it enters into a contract of a prescribed kind under which another person is to supply goods or services.

(2)Regulations may make provision about tenders.

3.58.Disposing of property

(1)In this section — 

dispose includes to sell, lease, or otherwise dispose of, whether absolutely or not;

property includes the whole or any part of the interest of a local government in property, but does not include money.

(2)Except as stated in this section, a local government can only dispose of property to — 

(a)the highest bidder at public auction; or

(b)the person who at public tender called by the local government makes what is, in the opinion of the local government, the most acceptable tender, whether or not it is the highest tender.

(3)A local government can dispose of property other than under subsection (2) if, before agreeing to dispose of the property — 

(a)it gives local public notice of the proposed disposition — 

(i)describing the property concerned; and

(ii)giving details of the proposed disposition; and

(iii)inviting submissions to be made to the local government before a date to be specified in the notice, being a date not less than 2 weeks after the notice is first given;

and

(b)it considers any submissions made to it before the date specified in the notice and, if its decision is made by the council or a committee, the decision and the reasons for it are recorded in the minutes of the meeting at which the decision was made.

(4)The details of a proposed disposition that are required by subsection (3)(a)(ii) include — 

(a)the names of all other parties concerned; and

(b)the consideration to be received by the local government for the disposition; and

(c)the market value of the disposition —

(i)as ascertained by a valuation carried out not more than 6 months before the proposed disposition; or

(ii)as declared by a resolution of the local government on the basis of a valuation carried out more than 6 months before the proposed disposition that the local government believes to be a true indication of the value at the time of the proposed disposition.

(5)This section does not apply to — 

(a)a disposition of an interest in land under the Land Administration Act 1997 section 189 or 190; or

(b)a disposition of property in the course of carrying on a trading undertaking as defined in section 3.59; or

(c)anything that the local government provides to a particular person, for a fee or otherwise, in the performance of a function that it has under any written law; or

(d)any other disposition that is excluded by regulations from the application of this section.

[Section 3.58 amended: No. 49 of 2004 s. 27; No. 17 of 2009 s. 10.]

3.59.Commercial enterprises by local governments

(1)In this section — 

acquire has a meaning that accords with the meaning of dispose;

dispose includes to sell, lease, or otherwise dispose of, whether absolutely or not;

land transaction means an agreement, or several agreements for a common purpose, under which a local government is to — 

(a)acquire or dispose of an interest in land; or

(b)develop land;

major land transaction means a land transaction other than an exempt land transaction if the total value of — 

(a)the consideration under the transaction; and

(b)anything done by the local government for achieving the purpose of the transaction,

is more, or is worth more, than the amount prescribed for the purposes of this definition;

major trading undertaking means a trading undertaking that — 

(a)in the last completed financial year, involved; or

(b)in the current financial year or the financial year after the current financial year, is likely to involve,

expenditure by the local government of more than the amount prescribed for the purposes of this definition, except an exempt trading undertaking;

trading undertaking means an activity carried on by a local government with a view to producing profit to it, or any other activity carried on by it that is of a kind prescribed for the purposes of this definition, but does not include anything referred to in paragraph (a) or (b) of the definition of land transaction.

(2)Before it — 

(a)commences a major trading undertaking; or

(b)enters into a major land transaction; or

(c)enters into a land transaction that is preparatory to entry into a major land transaction,

a local government is to prepare a business plan.

(3)The business plan is to include an overall assessment of the major trading undertaking or major land transaction and is to include details of — 

(a)its expected effect on the provision of facilities and services by the local government; and

(b)its expected effect on other persons providing facilities and services in the district; and

(c)its expected financial effect on the local government; and

(d)its expected effect on matters referred to in the local government’s current plan prepared under section 5.56; and

(e)the ability of the local government to manage the undertaking or the performance of the transaction; and

(f)any other matter prescribed for the purposes of this subsection.

(4)The local government is to — 

(a)give Statewide public notice stating that — 

(i)the local government proposes to commence the major trading undertaking or enter into the major land transaction described in the notice or into a land transaction that is preparatory to that major land transaction; and

(ii)a copy of the business plan may be inspected or obtained at any place specified in the notice; and

(iii)submissions about the proposed undertaking or transaction 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

(b)make a copy of the business plan available for public inspection in accordance with the notice.

(5)After the last day for submissions, the local government is to consider any submissions made and may decide* to proceed with the undertaking or transaction as proposed or so that it is not significantly different from what was proposed.

* Absolute majority required.

(5a)A notice under subsection (4) is also to be published and exhibited as if it were a local public notice.

(6)If the local government wishes to commence an undertaking or transaction that is significantly different from what was proposed it can only do so after it has complied with this section in respect of its new proposal.

(7)The local government can only commence the undertaking or enter into the transaction with the approval of the Minister if it is of a kind for which the regulations require the Minister’s approval.

(8)A local government can only continue carrying on a trading undertaking after it has become a major trading undertaking if it has complied with the requirements of this section that apply to commencing a major trading undertaking, and for the purpose of applying this section in that case a reference in it to commencing the undertaking includes a reference to continuing the undertaking.

(9)A local government can only enter into an agreement, or do anything else, as a result of which a land transaction would become a major land transaction if it has complied with the requirements of this section that apply to entering into a major land transaction, and for the purpose of applying this section in that case a reference in it to entering into the transaction includes a reference to doing anything that would result in the transaction becoming a major land transaction.

(10)For the purposes of this section, regulations may — 

(a)prescribe any land transaction to be an exempt land transaction;

(b)prescribe any trading undertaking to be an exempt trading undertaking.

[Section 3.59 amended: No. 1 of 1998 s. 12; No. 64 of 1998 s. 18(1) and (2).]

3.60.No capacity to form or acquire control of body corporate

A local government cannot form or take part in forming, or acquire an interest giving it the control of, an incorporated company or any other body corporate except a regional local government or regional subsidiary unless it is permitted to do so by regulations.

[Section 3.60 amended: No. 26 of 2016 s. 6.]

Division 4 — Regional local governments and regional subsidiaries

[Heading amended: No. 26 of 2016 s. 7.]

3.61.Establishing regional local government

(1)Two or more local governments (referred to in this Division as the participants) may, with the Minister’s approval, establish a regional local government to do things, for the participants, for any purpose for which a local government can do things under this Act or any other Act.

(2)An application for the Minister’s approval is to be — 

(a)in a form approved for that purpose by the Minister; and

(b)accompanied by a copy of an agreement between the participants to establish the regional local government (referred to in this Division as the establishment agreement).

(3)The participants are to supply the Minister any further information about the application that the Minister asks for.

(4)If the Minister approves the application the Minister is to declare, by notice in the Gazette, that the regional local government is established — 

(a)on the date; and

(b)under the name; and

(c)for the purpose,

set out in the notice.

3.62.Constitution and purpose of regional local government

(1)A regional local government — 

(a)is a body corporate with perpetual succession and a common seal; and

(b)is to have as its governing body a council established under the establishment agreement and consisting of members of the councils of the participants.

(2)The purpose for which a regional local government is established (referred to in this Division as the regional purpose) is as set out in the establishment agreement.

3.63.Dissolution or partial dissolution of regional local government

(1)A regional local government is to be wound up — 

(a)at the direction of the Minister; or

(b)in accordance with the establishment agreement.

(2)A participant may, in accordance with the establishment agreement, withdraw from the regional local government and cease to be a participant.

3.64.Establishment agreement, what it must contain

The following matters are to be set out or provided for in the establishment agreement for a regional local government — 

(a)the name of the regional local government; and

(b)a description of the region for which the regional local government is established; and

(c)the number of offices of member on the council of the regional local government and, in respect of each participant, the number of members to be appointed by that participant; and

(d)the appointment and tenure of members and deputy members of the council of the regional local government; and

(e)the election or appointment of a chairperson and deputy chairperson of the regional local government from amongst members of its council and the term of office of a chairperson and deputy chairperson, which is not to exceed 2 years; and

(f)the purpose for which the regional local government is established; and

(g)a means of determining the financial contributions of the participants to the funds of the regional local government; and

(h)procedures for the winding up of the regional local government or for the withdrawal of a participant from the regional local government; and

(i)procedures for the division of assets and liabilities between the participants in the event of the regional local government being wound up or a participant withdrawing from the regional local government; and

(j)a means of resolving disputes between participants as to matters relating to the regional local government; and

(k)any other prescribed matter.

[Section 3.64 amended: No. 49 of 2004 s. 28; No. 17 of 2009 s. 11; No. 5 of 2017 s. 5.]

3.65.Establishment agreement, amendment of

(1)The participants may amend the establishment agreement for a regional local government by agreement made with the Minister’s approval, and a reference in this Division to the establishment agreement includes a reference to the establishment agreement as so amended.

(2)The establishment agreement can be amended under subsection (1) to include another local government as a further participant if that local government is a party to the amending agreement.

(3)Section 3.61(2) and (3) apply, with any necessary modifications, to an agreement amending the establishment agreement.

3.66.Application of enabling Acts to regional local government

(1)Except as otherwise stated in this section, this Act and any other Act under which anything can be done for the regional purpose apply in relation to a regional local government as if — 

(a)the participants’ districts together made up a single district; and

(b)the regional local government were the local government established for that district.

(2)A regional local government can only do things for the regional purpose, and the application of this Act or any other Act under subsection (1) is limited accordingly.

(3)The following provisions of this Act do not apply in relation to a regional local government — 

(a)Part 2 (other than sections 2.7, 2.26, 2.29 and 2.32(e) and Division 7); and

(b)Part 4; and

(c)Part 5, Division 2, Subdivision 4; and

(d)Part 6, Division 6; and

(e)any provision prescribed for the purposes of this subsection.

(4)Part 6, Division 5, Subdivision 3 does not apply in relation to a regional local government unless the establishment agreement provides that it does.

(5)The provisions that do apply in relation to a regional local government apply to it subject to any prescribed modifications and any other necessary modifications.

[Section 3.66 amended: No. 49 of 2004 s. 29.]

3.67.Inconsistency between regional and other local laws

To the extent that a local law made by a regional local government is inconsistent with a local law made by a local government, the local law made by the regional local government prevails.

3.68.Other arrangements not affected

Nothing in sections 3.61 to 3.67 prevents local governments from making arrangements under which — 

(a)a local government performs a function for another local government; or

(b)local governments perform a function jointly.

[Section 3.68 amended: No. 26 of 2016 s. 8.]

3.69.Regional subsidiaries

(1)Two or more local governments making arrangements under which they are to provide a service or carry on an activity jointly may, with the Minister’s approval and in accordance with the regulations, form a subsidiary body (called a regional subsidiary) to provide that service or carry on that activity.

(2)If the Minister approves the formation of a regional subsidiary, the Minister must, by notice in the Gazette, declare that the regional subsidiary is established —

(a)on the date set out in the notice; and

(b)under the name set out in the notice.

(3)A regional subsidiary —

(a)is a body corporate with perpetual succession and a common seal; and

(b)is to have a governing body consisting of members appointed in accordance with the regional subsidiary’s charter (as approved by the Minister in accordance with section 3.70(3)).

(4)Without limiting subsection (3)(b), a governing body may consist of or include members who are not council members or employees.

[Section 3.69 inserted: No. 26 of 2016 s. 9.]

3.70.Regional subsidiaries to have charter

(1)Local governments proposing to form a regional subsidiary must prepare a charter addressing the following matters —

(a)the establishment and powers and duties of the regional subsidiary;

(b)the process for selecting and appointing members of the regional subsidiary’s governing body;

(c)the qualifications that members of the regional subsidiary’s governing body must have;

(d)the administration of the regional subsidiary, including the membership and procedures of its governing body, and the fees, allowances and expenses to be paid or reimbursed to the members of its governing body;

(e)the financial management, planning, auditing and reporting to be undertaken by the regional subsidiary;

(f)the process for amending the charter;

(g)the winding up of the regional subsidiary;

(h)any other matters required by the regulations to be dealt with in a charter.

(2)The local governments must forward the charter to the Minister when applying for approval for the formation of the regional subsidiary.

(3)A charter, and an amendment to a charter, are of no effect unless approved by the Minister.

[Section 3.70 inserted: No. 26 of 2016 s. 9.]

3.70A.Audit requirements for regional subsidiaries

(1)Section 7.1 and the provisions of Part 7 Divisions 3A to 4 apply in relation to a regional subsidiary as if the regional subsidiary were a local government.

(2)The application of a provision under subsection (1) is subject to any prescribed or necessary modifications to the provision provided for in the regulations.

[Section 3.70A inserted: No. 5 of 2017 s. 6.]

3.71.Regulations about regional subsidiaries

Regulations may —

(a)regulate the procedure for applying to the Minister for approval for the formation of a regional subsidiary; and

(b)require the local governments proposing to form a regional subsidiary to consult with the community in their districts in accordance with the regulations; and

(c)provide that a specified provision of this Act applies in relation to a regional subsidiary subject to any prescribed or necessary modifications; and

(d)provide for or regulate any other matter that is necessary or convenient to be provided for or regulated in respect of a regional subsidiary.

[Section 3.71 inserted: No. 26 of 2016 s. 9.]

3.72.Other provisions and arrangements not affected

(1)Section 3.69 has effect in addition to the provisions of this Division relating to regional local governments, and does not derogate from those provisions.

(2)Nothing in section 3.69 prevents local governments from making arrangements under which —

(a)a local government provides a service or carries on an activity for another local government; or

(b)local governments provide a service or carry on an activity jointly without forming a regional subsidiary.

[Section 3.72 inserted: No. 26 of 2016 s. 9.]

Part 4 — Elections and other polls

What this Part is about

This Part deals with elections of mayors and presidents by electors, elections of councillors, and polls and referendums, and with related matters.

In particular — 

(a)Divisions 2, 3, 4, 5 and 6 describe the different kinds of elections and direct when those elections are to be held;

(b)Division 7 is about the officials who conduct elections;

(c)Division 8 sets out the qualifications for enrolment to vote at elections;

(d)Division 9 deals with the process of preparing for and conducting an election;

(e)Division 10 deals with complaints about the results of elections;

(f)Division 11 sets out a number of offences in relation to elections and provides for investigation and prosecution of offences;

(g)Division 12 deals with polls and referendums.

Division 1 — Preliminary

4.1.Terms used

In this Part — 

election means — 

(a)an election of a mayor or president by electors; or

(b)an election of a councillor or councillors whether in a district or in a ward;

election day means the day fixed under this Act for the holding of any poll needed for an election;

election notice has the meaning given by section 4.64;

electoral officer means a returning officer or a deputy returning officer or electoral officer appointed by a returning officer;

electoral requirements means the provisions of this Act about the preparation of electoral rolls, nomination of candidates and other preparations for the holding of elections;

electoral roll is a collective term that refers — 

(a)in the case of a district that has wards, to the ward rolls; and

(b)in the case of any district or ward, to the residents roll or rolls and the owners and occupiers roll or rolls,

that may form the electoral roll;

polling place means — 

(a)in the case of a voting in person election, a place appointed under section 4.23 for the casting of votes;

(b)in the case of a postal election, a place appointed under section 4.23 for the delivery of votes;

this Act means this Act or the regulations and this Part means this Part or the regulations made for the purposes of this Part.

4.1A.Conflict with Commonwealth or State election or referendum

(1)On a day fixed as polling day for a district or region under the Electoral Act 1907, no election, referendum or other poll is to be held under this Act in, or in any part of, that district or region.

(2)On a day fixed for the holding of a referendum, as defined in the Electoral Act 1907, no election, referendum or other poll is to be held under this Act.

(3)On a day appointed under the Commonwealth Electoral Act 1918 as polling day for an election of Senators for the State, no election, referendum or other poll is to be held under this Act.

(4)On a day appointed as polling day for an election of the House of Representatives for an Electoral Division in the State under the Commonwealth Electoral Act 1918, no election, referendum or other poll is to be held under this Act in, or in any part of, that Electoral Division.

(5)On a day fixed as voting day in the State, or an Electoral Division in the State under the Referendum (Machinery Provisions) Act 1984 of the Commonwealth, no election, referendum or other poll is to be held under this Act in the State, or in any part of that Electoral Division, as is relevant.

(6)In this section —

Electoral Division has the same meaning as it has in the Commonwealth Electoral Act 1918.

[Section 4.1A inserted: No. 49 of 2004 s. 30(1).]

4.1B.Polling day may be changed where conflict with Commonwealth or State election or referendum

(1)Despite anything else in this Act and subject to subsection (2), where a poll cannot be held on the day fixed under this Act due to section 4.1A, the Governor may, before the day fixed for the poll, by order under section 9.62 fix a later day for the holding of the poll.

(2)The time for the holding of a poll is not to be extended under this section by more than 14 days later than the time originally fixed.

[Section 4.1B inserted: No. 49 of 2004 s. 30(1).]

Division 2 — Inaugural elections

4.2.Inaugural elections

(1)When a local government is newly established elections are to be held — 

(a)to elect the councillors of the first council; and

(b)if the method of filling the office of mayor or president is by election by the electors, to elect the first mayor or president.

(2)An election under this section is called an inaugural election.

4.3.Polling day for inaugural election

(1)Any poll needed for an inaugural election is to be held on a day fixed by the Governor by order under section 9.62.

(2)The day fixed is to be a day that is as soon as practicable after the establishment of the local government and allows enough time for the electoral requirements to be complied with, but is not to be later than one year after the establishment of the local government.

Division 3 — Ordinary elections

4.4.Ordinary elections

(1)When the term of office of an elector mayor or president or a councillor is going to end under the Table to section 2.28 an election to fill the office is to be held.

(2)An election under this section is called an ordinary election.

(3)This section does not apply to the office of mayor or president if, under section 2.11, the next mayor or president is to be elected by the council.

4.5.Frequency of ordinary elections

A local government is to hold ordinary elections every 2 years.

4.6.Election day for ordinary elections

Any poll needed for an ordinary election is to be held on the day on which the previous term of office referred to in section 4.4(1) ends.

4.7.Ordinary elections day usually third Saturday in October

(1)The effect of section 4.6 is that — 

(a)polls for ordinary elections to elect an elector mayor or president will be held on the third Saturday in October every 4 years; and

(b)polls for ordinary elections to elect councillors will be held on the third Saturday in October every 2 years.

(2)If in respect of a particular year in which ordinary elections are required to be held the Electoral Commissioner is of the opinion that it would not be in the public interest to hold polls for those ordinary elections on the third Saturday in October, the Electoral Commissioner may, by notice in the Gazette, fix a later Saturday in October, or the first, second or third Saturday in November, to be the day for holding any polls needed for those ordinary elections.

(3)The election day can be deferred under subsection (2) — 

(a)for all local governments; or

(b)for a local government or local governments specified in the notice; or

(c)for a class or classes of local governments specified in the notice.

(4)In the notice under subsection (2), or by a later notice in the Gazette, the Electoral Commissioner may adjust any time, period or date fixed under this Act to take account of the election day being deferred under subsection (2).

[Section 4.7 amended: No. 66 of 2006 s. 6.]

Division 4 — Extraordinary elections

4.8.Extraordinary elections

(1)If the office of a councillor or of an elector mayor or president becomes vacant under section 2.32 an election to fill the office is to be held.

(2)An election is also to be held under this section if section 4.57 or 4.58 so requires.

(3)An election under this section is called an extraordinary election.

[Section 4.8 amended: No. 2 of 2012 s. 10.]

4.9.Election day for extraordinary election

(1) Any poll needed for an extraordinary election is to be held on a day decided on and fixed — 

(a)by the mayor or president, in writing, if a day has not already been fixed under paragraph (b); or

(b)by the council at a meeting held within one month after the vacancy occurs, if a day has not already been fixed under paragraph (a).

(2)The election day fixed for an extraordinary election is to be a day that allows enough time for the electoral requirements to be complied with but, unless the Electoral Commissioner approves or section 4.10(b) applies, it cannot be later than 4 months after the vacancy occurs.

(3)If at the end of one month after the vacancy occurs an election day has not been fixed, the CEO is to notify the Electoral Commissioner and the Electoral Commissioner is to — 

(a)fix a day for the holding of the poll that allows enough time for the electoral requirements to be complied with; and

(b)advise the CEO of the day fixed.

4.10.Extraordinary election can be held before resignation has taken effect

If a member resigns — 

(a)the vacancy is to be regarded for the purposes of sections 4.8(1) and 4.9 as occurring when the CEO receives the notice of resignation even if the resignation takes effect on a later day; but

(b)the election day fixed for the extraordinary election cannot be earlier than one month before the resignation actually takes effect.

Division 5 — Other elections

4.11.Elections after restructure of districts, wards or membership

Any poll needed for an election to give effect to an order under section 2.1(1) changing the boundaries of a district or under section 2.2 or 2.18 is to be held on the day fixed by the Governor by order under section 9.62.

4.12.Elections after reinstatement of council

Any poll needed for an election to fill offices of members that are vacant when a suspended council is reinstated is to be held on the day fixed by order under section 8.29(4).

4.13.Elections after all members’ offices become vacant

Any poll needed for an election to fill the vacant offices after the offices of members have been declared vacant under section 2.37 is to be held on the day fixed by order under section 2.37(5).

4.14.Elections after council is dismissed

Any poll needed for an election to elect a new council after a council has been dismissed under section 8.25(1) is to be held on the day fixed by order under section 8.34(1).

[Section 4.14 amended: No. 31 of 2018 s. 9.]

4.15.Fresh election after election declared invalid

Any poll needed for a fresh election after an election is declared invalid is to be held on the day fixed by the Court of Disputed Returns under section 4.81(3).

Division 6 — Postponement and consolidation of elections

4.16.Postponement of elections to allow consolidation

(1)This section modifies the operation of sections 4.8, 4.9 and 4.10 in relation to the holding of extraordinary elections.

(2)If a member’s office becomes vacant under section 2.32 (otherwise than by resignation) on or after the third Saturday in July in an election year and long enough before the ordinary elections day in that year to allow the electoral requirements to be complied with, any poll needed for the extraordinary election to fill the vacancy is to be held on that ordinary elections day.

(3)In the case of a member’s office becoming vacant under section 2.32 by resignation, if — 

(a)the resignation takes effect, or is to take effect, on or after the third Saturday in July in an election year but not later than one month after the ordinary elections day in that year; and

(b)the CEO receives notice of the resignation long enough before that ordinary elections day to allow the electoral requirements to be complied with,

any poll needed for the extraordinary election to fill the vacancy is to be held on that ordinary elections day.

(4)If a member’s office becomes vacant under section 2.32 — 

(a)after the third Saturday in January in an election year; but

(b)before the third Saturday in July in that election year,

the council may, with the approval of the Electoral Commissioner, fix the ordinary elections day in that election year as the day for holding any poll needed for the extraordinary election to fill that vacancy.

[Section 4.16 amended: No. 66 of 2006 s. 7; No. 2 of 2012 s. 11.]

4.17.Cases in which vacant offices can remain unfilled

(1)If a member’s office becomes vacant under section 2.32 on or after the third Saturday in July in the election year in which the term of the office would have ended under the Table to section 2.28, the vacancy is to remain unfilled and the term of the member who held the office is to be regarded in section 4.6 as ending on the day on which it would have ended if the vacancy had not occurred.

(2)If a member’s office becomes vacant under section 2.32 — 

(a)after the third Saturday in January in the election year in which the term of the office would have ended under the Table to section 2.28; but

(b)before the third Saturday in July in that election year,

the council may, with the approval of the Electoral Commissioner, allow the vacancy to remain unfilled and, in that case, the term of the member who held the office is to be regarded in section 4.6 as ending on the day on which it would have ended if the vacancy had not occurred.

(3)If a councillor’s office becomes vacant under section 2.32 and under subsection (4A) this subsection applies, the council may, with the approval of the Electoral Commissioner, allow* the vacancy to remain unfilled and, subject to subsection (4), in that case, the term of the member who held the office is to be regarded in section 4.6 as ending on the day on which it would have ended if the vacancy had not occurred.

* Absolute majority required.

(4A)Subsection (3) applies —

(a)if —

(i)the office is for a district that has no wards; and

(ii)at least 80% of the number of offices of member of the council in the district are still filled;

or

(b)if —

(i)the office is for a ward for which there are 5 or more offices of councillor; and

(ii)at least 80% of the number of offices of councillor for the ward are still filled.

(4)If an ordinary or an extraordinary election is to be held in a district then an election to fill any vacancy in the office of councillor in that district that was allowed to remain unfilled under subsection (3) is to be held on the same election day and Division 9 applies to those elections as if they were one election to fill all the offices of councillor for the district or ward that need to be filled.

[Section 4.17 amended: No. 49 of 2004 s. 31; No. 66 of 2006 s. 8; No. 17 of 2009 s. 12.]

4.18.Certain elections to be held as one

(1)This section applies to the following kinds of elections of councillors — 

(a)ordinary elections;

(b)extraordinary elections;

(c)elections under section 4.11, 4.12 or 4.13.

(2)If in a district or ward the same election day is fixed for elections of more than one kind, Division 9 applies to those elections as if they were one election to fill all the offices of councillor for the district or ward that need to be filled.

Division 7 — Provisions about electoral officers and the conduct of elections

4.19.Returning officer

The principal electoral office of a local government is that of returning officer.

4.20.CEO to be returning officer unless other arrangements made

(1)Subject to this section the CEO is the returning officer of a local government for each election.

(2)A local government may, having first obtained the written agreement of the person concerned and the written approval of the Electoral Commissioner, appoint* a person other than the CEO to be the returning officer of the local government for —

(a)an election; or

(b)all elections held while the appointment of the person subsists.

* Absolute majority required.

(3)An appointment under subsection (2) —

(a)is to specify the term of the person’s appointment; and

(b)has no effect if it is made after the 80th day before an election day.

(4)A local government may, having first obtained the written agreement of the Electoral Commissioner, declare* the Electoral Commissioner to be responsible for the conduct of an election, or all elections conducted within a particular period of time, and, if such a declaration is made, the Electoral Commissioner is to appoint a person to be the returning officer of the local government for the election or elections.

* Absolute majority required.

(5)A declaration under subsection (4) has no effect if it is made after the 80th day before election day unless a declaration has already been made in respect of an election for the local government and the declaration is in respect of an additional election for the same local government.

(6)A declaration made under subsection (4) on or before the 80th day before election day cannot be rescinded after that 80th day.

[Section 4.20 amended: No. 64 of 1998 s. 19(1); No. 49 of 2004 s. 16(4) and 32(1)‑(4).]

4.21.Deputy returning officers

(1)A returning officer appointed under section 4.20(1) or (2) is to appoint one or more deputy returning officers.

(2)If the returning officer is appointed under section 4.20(4), the Electoral Commissioner is to appoint one or more deputy returning officers.

4.22.Returning officer to conduct elections

(1)An election is to be conducted by the returning officer of the local government for that election.

(2)In the case of a returning officer appointed under section 4.20(4), the returning officer is to conduct the election for and under the direction of the Electoral Commissioner.

(3)If the returning officer is absent or cannot perform his or her functions a deputy returning officer is to perform the returning officer’s functions.

4.23.Returning officer’s functions

The returning officer’s functions are — 

(a)to appoint places for the casting of votes, places for the delivery of postal votes and places for the counting of votes for elections (within or outside the district); and

(b)to appoint other electoral officers to assist in the conduct of elections; and

(c)to ensure that the necessary preparations are made for the conduct of elections; and

(d)to do anything which the returning officer is authorised or required to do under this Act or which is necessary or expedient in order to ensure that elections are conducted in accordance with this Act; and

(e)in the case of a returning officer appointed under section 4.20(4), to do other things if directed to do so by the Electoral Commissioner.

4.24.Electoral Commissioner’s functions

The Electoral Commissioner’s functions under this Act are to do anything which the Electoral Commissioner is authorised or required to do under this Act and, where the Electoral Commissioner is responsible for the conduct of the election, to do anything which is necessary or expedient for the proper and efficient conduct of the election.

4.25.Access to information

The Electoral Commissioner and the returning officer are to have access to any relevant information of a local government in order to perform their functions under this Act.

4.26.Delegation

(1)The Electoral Commissioner may delegate any of his or her powers or duties under this Act (except this power of delegation) to another person.

(2)A returning officer may delegate any of his or her powers or duties under this Act (except this power of delegation) to a deputy returning officer.

(3)Delegations must be in writing.

4.27.Regulations about electoral officers and conduct of elections

(1)Regulations may include provisions — 

(a)about the appointment of returning officers under section 4.20(4), and deputy returning officers under section 4.21(2), and their removal or suspension by the Electoral Commissioner; and

(b)about the appointment, removal or suspension of electoral officers by returning officers; and

(c)about the declarations to be made by electoral officers; and

(d)setting out functions to be performed by local governments, CEOs and returning officers to ensure the proper and efficient conduct of elections.

(2)Despite any other written law, the decision of the Electoral Commissioner or a returning officer about the appointment, removal or suspension of an electoral officer is final.

4.28.Fees and expenses

A local government is to — 

(a)pay fees to the electoral officers, in accordance with regulations, for conducting an election; and

(b)meet expenses incurred by the electoral officers in connection with an election; and

(c)if a declaration under section 4.20(4) has been made in relation to the election, meet the expenses of the Electoral Commissioner in connection with the election to the extent required by regulations.

Division 8 — Eligibility for enrolment

4.29.Eligibility of residents to be enrolled

(1)A person is eligible to be enrolled to vote at elections for a district or ward (the electorate) if the person is enrolled as an elector for the Legislative Assembly in respect of a residence in the electorate.

(2)For the purposes of subsection (1) a person is to be regarded as being enrolled as an elector for the Legislative Assembly even if his or her name has been omitted in error from the relevant electoral roll under the Electoral Act 1907.

4.30.Eligibility of non‑resident owners and occupiers to be enrolled

(1)A person is eligible to be enrolled to vote at elections for a district or ward (the electorate) if the person — 

(a)is enrolled as an elector for the Legislative Assembly or the House of Representatives in respect of a residence outside the electorate; and

(b)owns or occupies rateable property within the electorate; and

(c)has made a successful eligibility claim that still has effect under section 4.33.

(2)For the purposes of subsection (1)(a) a person is to be regarded as being enrolled as an elector for the Legislative Assembly or the House of Representatives even if his or her name has been omitted in error from an electoral roll under the Electoral Act 1907 or the Commonwealth Electoral Act 1918.

(3)For the purposes of subsection (1)(c) an eligibility claim is successful if it is accepted under section 4.32, whether or not the acceptance is before the close of enrolments, as defined in section 4.39(1).

(4)A person who is eligible under subsection (1) to vote at an election held less than 50 days after the commencement of the Local Government Amendment Act 2009 section 13 is eligible to vote at that election.

[Section 4.30 amended: No. 17 of 2009 s. 13.]

4.31.Rateable property: ownership and occupation

(1)For the purposes of this Division, subsections (1A) to (1H) apply in relation to rateable property and its ownership and occupation.

(1A)Section 4.30 applies even if part of the rateable property is situated in another district.

(1B)If an enrolment eligibility claim is made in respect of rateable property situated partly in one ward and partly in another ward or wards, it is to be regarded for the purposes of that claim as being in — 

(a)the ward nominated by the owner or occupier making the claim; or

(b)if no nomination is made, the ward determined by the CEO.

(1C)A person occupies rateable property if, and only if, the person has a right of continuous occupation under a lease, tenancy agreement or other legal instrument.

(1D)A reference to the occupation of rateable property includes a reference to the occupation of — 

(a)a separate building or portion of a building on the rateable property; or

(b)some other separate and distinguishable portion of the rateable property.

(1E)If more than 2 people own rateable property in conjunction with each other, the owners are whichever 2 of those people who, being eligible under section 4.30(1)(a), are nominated as owners by all or a majority of those people.

(1F)If more than 2 people occupy rateable property in conjunction with each other, the occupiers are whichever 2 of those people who, being eligible under section 4.30(1)(a), are nominated as occupiers by all or a majority of those people.

(1G)If a body corporate owns or occupies rateable property, the owners or occupiers are 2 people who, being eligible under section 4.30(1)(a), are nominated as owners or occupiers by the body corporate.

(1H)A nomination under subsection (1E), (1F) or (1G) applies in respect of any and all other rateable property in the district that is owned or occupied by the people or body corporate concerned.

(2)Regulations may include provisions about how nominations under subsections (1) to (1H) are made and how long they remain in effect.

[Section 4.31 amended: No. 19 of 2010 s. 51.]

4.32.Eligibility to enrol under s. 4.30, how to claim

(1)A person who considers that he or she is eligible under section 4.30(1)(a) and (b) may make an enrolment eligibility claim in respect of the district or ward.

(2)The claim is to be made to the CEO in accordance with regulations.

(3)A claim for enrolment as an occupier cannot be made or accepted unless, when the claim is made, the claimant has a right of occupation as referred to in section 4.31(1)(c) 6 for at least the next 3 months and, if so prescribed, is liable to pay rent in respect of that occupation of at least the prescribed amount.

(4)Except as provided for in subsection (5A), within 14 days after receiving the claim the CEO is to decide whether or not the claimant is eligible under section 4.30(1)(a) and (b) and accept or reject the claim accordingly.

(5A)If a claim is made before the close of enrolments as defined in section 4.39(1), but less than 14 days before the close of nominations as defined in section 4.49(a), the CEO is to decide whether to accept or reject the claim before the close of nominations.

(5)The CEO can make any inquiries needed in order to make a decision.

(6)The CEO is to record the decision in a register kept for that purpose in accordance with regulations and is to give written notice of the decision to the claimant without delay.

(7)If the claim is rejected the notice has to set out the CEO’s reasons for the decision.

(8)A person who is dissatisfied with the CEO’s decision may appeal to the Electoral Commissioner in accordance with regulations and the Electoral Commissioner can confirm or reverse the decision.

(9)On receipt of advice of the Electoral Commissioner’s decision on an appeal, the CEO is to take any action that is necessary to give effect to that decision.

[Section 4.32 amended: No. 64 of 1998 s. 20; No. 49 of 2004 s. 33; No. 17 of 2009 s. 14.]

4.33.Claim of eligibility to enrol under s. 4.30, expiry of

(1)If an enrolment eligibility claim made by a person on the basis of ownership of rateable property within the electorate is accepted under section 4.32(4) or (8), the claim expires when the person ceases to own the property to which the claim relates.

(2A)Unless subsection (2B) or (3) applies, if an enrolment eligibility claim made by a person on the basis of occupation of rateable property within the electorate is accepted under section 4.32(4) or (8), the claim expires on the day 6 months after the holding of the second ordinary elections of the local government after the claim is accepted.

(2B)If an enrolment eligibility claim on the basis of occupation of rateable property within the electorate is —

(a)made within the period of 49 days before the election day for ordinary elections of the local government; and

(b)accepted under section 4.32(4) or (8) before the election day,

the claim expires on the day 6 months after the holding of the third ordinary elections of the local government after the claim is accepted.

(2)For the purpose of subsection (2A) or (2B), an election that would have been held on a particular day but for the suspension of the council of the local government is to be regarded as having been held on that day.

(3)If the day on which an enrolment eligibility claim would expire under subsection (2A) or (2B) is less than 50 days before an election at which the occupier would be eligible to vote, the enrolment eligibility claim does not expire until the day after that election day.

[Section 4.33 amended: No. 64 of 1998 s. 21; No. 49 of 2004 s. 34; No. 17 of 2009 s. 15.]

4.34.Accuracy of enrolment details to be maintained

The CEO is to ensure that the information about electors that is recorded from enrolment eligibility claims is maintained in an up to date and accurate form.

4.35.Decision that eligibility to enrol under s. 4.30 has ended

(1)The CEO may decide that a person is no longer eligible under section 4.30 to be enrolled to vote at elections for a district or ward if — 

(a)the person has given the CEO written notice that the person is no longer eligible to be so enrolled; or

(b)the CEO is satisfied that the person is dead; or

(c)the CEO is satisfied that the person is no longer eligible to be so enrolled.

(2)The CEO is to give written notice to the person before making a decision under subsection (1)(c) and is to allow 28 days for the person to make submissions on the matter.

(3)If the CEO makes a decision under subsection (1)(c) the CEO is to give written notice of it to the person.

(4)If dissatisfied with the decision, the person may appeal to the Electoral Commissioner in accordance with regulations and the Electoral Commissioner can confirm or reverse the decision.

(5)On receipt of advice of the Electoral Commissioner’s decision on an appeal, the CEO is to take any action that is necessary to give effect to that decision.

(6)If, after considering submissions made under subsection (2), the CEO decides that the person is still eligible under section 4.30 to be enrolled to vote at elections for the district or ward, the CEO is to give written notice of that decision to the person.

(7)The CEO is to record any decision under subsection (1) or (6) in the register referred to in section 4.32(6).

[Section 4.35 amended: No. 49 of 2004 s. 35.]

Division 9 — Electoral process

[Heading inserted: No. 19 of 2010 s. 44(2).]

Subdivision 1 — Stages of electoral process

[Heading inserted: No. 19 of 2010 s. 44(2).]

4.36.Application and term used: election

(1)This Division applies to the following stages in the preparation for, and conduct of, an election — 

(a)Stage 1 — Preparing the electoral roll;

(b)Stage 2 — Nomination of candidates;

(c)Stage 3 — After nominations close;

(d)Stage 4 — Preparing for voting;

(e)Stage 5 — Voting;

(f)Stage 6 — Counting the votes;

(g)Stage 7 — Declaring the result.

(2)In this Division the election referred to in subsection (1) is referred to as the election.

[Section 4.36 amended: No. 19 of 2010 s. 51.]

Subdivision 2 — Stage 1: Preparing the electoral roll

[Heading inserted: No. 19 of 2010 s. 44(2).]

4.37.New roll for each election

(1)An electoral roll is to be prepared for the election.

(2)If the district is not divided into wards the same electoral roll can be used for the election of an elector mayor or president and the election of a councillor or councillors.

(3)A new electoral roll need not be prepared for the election if — 

(a)it is an extraordinary election the election day for which is less than 100 days after the election day for another election; and

(b)the CEO, with the approval of the Electoral Commissioner, decides that the roll that was used for the earlier election is suitable for use at the extraordinary election.

[Section 4.37 amended: No. 49 of 2004 s. 36.]

4.38.What roll consists of

(1)The electoral roll for the election is to consist of a residents roll and an owners and occupiers roll but these can be consolidated for the purposes of the election in accordance with regulations.

(2)Regulations are to include provisions about the form of rolls (e.g. consolidated rolls, district rolls, ward rolls, combined ward rolls), the details that they are to contain and the arrangement of those details, and can provide for cases in which details may be omitted for the protection of an elector or his or her family.

4.39.Close of enrolments

(1)In order to be included on the electoral roll for the election a person must be an elector of the district or ward, as the case requires, as at 5 p.m. on the 50th day before election day (the close of enrolments).

(2)On or after the 70th day, but not later than on the 56th day, before election day the CEO is to give Statewide public notice of the time and date of the close of enrolments.

(3)The notice is to give details of the steps that a person can take to become an elector before the close of enrolments [i.e. enrolling as an elector for the Legislative Assembly in respect of a residence in the district or ward (section 4.29) or making an enrolment eligibility claim in respect of the district or ward (sections 4.30 and 4.32)].

(4)If, under section 4.37(3), a previous electoral roll is going to be used for the election, no notice is to be published under subsection (2).

[Section 4.39 amended: No. 64 of 1998 s. 22.]

4.40.Residents roll

(1)Subject to section 4.37(3), on or before the 56th day before election day, the CEO is to advise the Electoral Commissioner of the need to prepare a residents roll for the election.

(2)On or before the 36th day before election day, the Electoral Commissioner is to prepare a residents roll for the election and forward a copy of it to the CEO.

(3)The residents roll is to include the names of all persons who were electors of the district or ward under section 4.29 at the close of enrolments (other than persons who will be under 18 years of age on election day) and is to be certified to that effect by the Electoral Commissioner.

[Section 4.40 amended: No. 66 of 2006 s. 9.]

4.41.Owners and occupiers roll

(1)On or before the 36th day before election day, the CEO is to prepare an owners and occupiers roll for the election.

(2)The owners and occupiers roll is to include the names of all persons who were electors of the district or ward under section 4.30 at the close of enrolments (other than persons who will be under 18 years of age on election day) and is to be certified to that effect by the CEO.

[Section 4.41 amended: No. 66 of 2006 s. 10.]

4.42.Supply of rolls to returning officer, members and candidates

(1)The CEO is to ensure that the returning officer has as many copies of the residents and owners and occupiers rolls as he or she may require for the purposes of the election.

(2)Copies of rolls are to be supplied, free of charge, to members of the council and candidates in accordance with regulations.

4.43.Correction of rolls

(1)On or before the 22nd day before election day the returning officer is to delete from the owners and occupiers roll the name of any person whose name also appears on the residents roll.

(2)Subsection (1) does not apply if the rolls have been consolidated.

(3)The returning officer may alter the residents and owners and occupiers rolls — 

(a)by including the name of an elector whose name has been omitted in error; or

(b)by omitting the name of a person whose name has been included in error; or

(c)in any other manner that may be necessary to correct the rolls.

(3a)If the returning officer is not the CEO, the returning officer may direct the CEO to make the alterations to the rolls described in subsections (1) and (3) and the CEO is to comply with that direction.

(3b)If a roll is altered under this section or section 4.44A after it has been supplied under section 4.42(2) to members of the council and candidates, the returning officer is to supply details of the alteration to those members and candidates in accordance with regulations.

(4)Regulations may provide for the making of applications to have rolls corrected, the certification of corrections and procedures to be followed in altering or correcting the rolls.

[Section 4.43 amended: No. 64 of 1998 s. 23; No. 49 of 2004 s. 37; No. 17 of 2009 s. 16.]

4.44A.Alteration of rolls

(1)The returning officer may alter the owners and occupiers roll by including the name of an elector whose enrolment eligibility claim was made under section 4.32(1) before the close of enrolments, as defined in section 4.39(1), but accepted after that time.

(2)If the returning officer is not the CEO, the returning officer may direct the CEO to make an alteration to the roll described in subsection (1) and the CEO is to comply with that direction.

[Section 4.44A inserted No. 17 of 2009 s. 17.]

4.44.One enrolment per roll

An elector’s name is not to appear more than once on the same electoral roll.

4.45.Failure to comply with time limits as to preparation of rolls

(1)If anything required by this Act to be done in connection with the preparation of an electoral roll has not been done within the time, or for the period or before the date allowed or required under this Act, the Minister may, by notice published in the Gazette — 

(a)direct it to be done; and

(b)adjust any time period or date fixed under this Act in order to enable it to be done.

(2)When an omission or non‑compliance is rectified in accordance with a notice under subsection (1), the electoral roll is validated as set out in the notice.

(3)A notice under this section has effect in accordance with its terms despite anything in this Act.

4.46.Fresh roll may be required

(1)If the Minister is satisfied that an electoral roll has not been properly prepared in accordance with this Division, the Minister may, by notice published in the Gazette, direct that a fresh electoral roll be prepared in accordance with directions set out in the notice.

(2)An electoral roll prepared under subsection (1) supersedes a previous electoral roll.

(3)A notice under this section has effect in accordance with its terms despite anything in this Act.

Subdivision 3 — Stage 2: Nomination of candidates

[Heading inserted: No. 19 of 2010 s. 44(2).]

4.47.Nominations, call for

(1)Statewide public notice calling for nominations of candidates for the election is to be given by the returning officer on or after the 56th day, but not later than on the 45th day, before election day.

(2)The notice calling for nominations is to specify — 

(a)the kind of election to be held and the vacancy or vacancies to be filled; and

(b)the place where nominations may be delivered or sent (the nomination place); and

(c)the period within which nominations have to be delivered or sent; and

(d)any other arrangements made for the receipt by the returning officer of nominations.

4.48.Candidate, eligibility of

(1)If the election is to fill an office or offices of councillor, a person can only be a candidate if the person was an elector of the district who, as at the close of enrolments, was qualified under section 2.19 to be elected as a member of the council and, at the time of nomination — 

(a)the person is qualified under section 2.19 to be elected as a member of the council; and

(b)the person is not a candidate in another election to fill an office or offices of councillor on the council; and

(c)the person is not the holder of an office of member of a council other than an office the term of which will end on, or before, election day.

(2)If the election is to fill the office of elector mayor or president, a person can only be a candidate if the person was an elector of the district who, as at the close of enrolments and at the time of nomination, was qualified under section 2.19 to be elected as a member of the council.

[Section 4.48 amended: No. 49 of 2004 s. 38(1) and (2); No. 17 of 2009 s. 18.]

4.49.How to make an effective nomination

The nomination of a candidate is only effective if — 

(a)a completed nomination paper, in the prescribed form, is received by the returning officer at the nomination place (by delivery, post, facsimile or other prescribed means) within the period beginning on the 44th day before election day and ending at 4 p.m. on the 37th day before election day (the close of nominations); and

(b)a profile of the candidate, prepared in accordance with regulations, accompanies the nomination paper; and

(c)evidence that the nomination is made by or with the consent of the candidate is given to the returning officer in a prescribed manner on or with the nomination paper or before the close of nominations; and

(d)payment of the prescribed deposit in a prescribed manner is received by the returning officer when the nomination paper is received or before the close of nominations.

[Section 4.49 amended: No. 49 of 2004 s. 39.]

4.50.Deposits, how dealt with

A deposit is to be dealt with in accordance with regulations and is refundable in such circumstances as are set out in regulations.

4.51.Nominations, rejection of

(1)The returning officer is to reject a nomination if — 

(a)it is not effective under section 4.49; or

(b)the candidate is not an elector of the district or was not an elector of the district as at the close of enrolments; or

(ba)as at the close of enrolments, the candidate was not qualified to be elected as a member of a council due to section 2.19(2); or

(c)in the case of a candidate for election as a councillor, the candidate is not eligible to be a candidate because of section 4.48(1)(b) or (c).

(2)If none of subsection (1)(a), (b) or (c) apply the returning officer is to accept the nomination.

(3)Despite subsection (1)(a), if the profile of the candidate does not meet the requirements of regulations, the returning officer may amend the profile to meet those requirements and accept the nomination with the amended profile.

(4)If the returning officer rejects a nomination or amends a profile the returning officer is to give written notice of the decision, and the reasons for it, to the candidate without delay.

[Section 4.51 amended: No. 49 of 2004 s. 40.]

4.52.Candidates’ details etc., exhibition of

(1)If a nomination is accepted, the returning officer is to ensure that the details and profile of the candidate are exhibited to the public (with the details and profiles of any other candidates) on a notice board at the local government’s offices.

(2)The details and profiles are to remain on exhibition —

(a)if section 4.55 or 4.57(2)(a) apply, until the result is declared under section 4.77; or

(b)otherwise, until 6 p.m. on election day.

(3)In this section —

details, in relation to a candidate, means —

(a)the candidate’s name; and

(b)the name to appear on the ballot paper; and

(c)the ward (if any) in respect of which the candidate has nominated; and

(d)the office for which the candidate has nominated; and

(e)the type of election in which the candidate has nominated.

[Section 4.52 inserted: No. 64 of 1998 s. 24(1).]

4.53.Nominations, cancellation of

(1)The nomination of a candidate is cancelled if the candidate withdraws the nomination or dies before the close of nominations.

(2)The withdrawal of a nomination is only effective if — 

(a)written notice of it is received by the returning officer at the nomination place (by delivery, post, facsimile or other prescribed means) before the close of nominations; and

(b)evidence that the withdrawal is made by or with the consent of the candidate is given to the returning officer in a prescribed manner on or with the withdrawal notice or before the close of nominations.

(3)If a nomination is cancelled the details and profile of the candidate are to be removed from exhibition under section 4.52 and notice of the cancellation is to be exhibited until the close of nominations.

(4)If a person who is a candidate in both an election to fill the office of mayor or president and an election to fill an office or offices of councillor on the council is elected unopposed under section 4.55 to fill the office of mayor or president, the nomination of the person as a candidate in the other election is to be regarded for the purposes of this Act as having been cancelled immediately before the close of nominations.

[Section 4.53 amended: No. 64 of 1998 s. 24(2).]

Subdivision 4 — Stage 3: After nominations close

[Heading inserted: No. 19 of 2010 s. 44(2).]

4.54.Nominations to be declared

(1)As soon as possible after nominations have closed the returning officer is to declare the nominations that have been accepted and have not been cancelled.

(2)The declaration is to be made at the nomination place in the presence of any candidates and other people who wish to attend.

4.55.Same number of candidates as vacancies

If, at the close of nominations, the number of candidates is equal to the number of offices to be filled at the election, the candidate or candidates is or are elected unopposed.

4.56.More candidates than vacancies

If, at the close of nominations, the number of candidates is greater than the number of offices to be filled at the election — 

(a)lots are to be drawn in accordance with regulations for the positions of the candidates on the ballot papers for the election; and

(b)the returning officer is to begin preparing for voting by the electors.

4.57.Less candidates than vacancies

(1)If, at the close of nominations, there are no candidates for the office or offices to be filled at the election, an extraordinary election is to be held to fill the office or offices as if it or they had become vacant on the day after the close of nominations.

(2)If, at the close of nominations, the number of candidates is less than the number of offices to be filled at the election — 

(a)the candidate or candidates is or are elected; and

(b)an extraordinary election is to be held to fill the remaining office or offices as if it or they had become vacant on the day after the close of nominations.

(3)If, at the close of nominations for an extraordinary election required under subsection (1) or (2) there are no candidates or the number of candidates is less than the number of offices to be filled at the election, the council may appoint* to any unfilled office a person who would be eligible to be a candidate for election to the office and who is willing to accept the appointment.

* Absolute majority required.

(4)A person appointed under subsection (3) is to be regarded as having been elected.

4.58.Candidates, death of after close of nominations

(1)If section 4.56 applies and a candidate dies after the close of nominations but before the vacant office or offices is or are filled, the election is void and an extraordinary election is to be held to fill the office or offices as if it or they had become vacant on the death of the candidate.

(2)If a candidate who has been elected dies before his or her term of office begins, an extraordinary election is to be held to fill the office to which the candidate had been elected as if it had become vacant on the death of the candidate.

4.59.Candidates, regulations about

Regulations may provide for — 

(a)the provision of information as to gifts made to or for the benefit of candidates; and

(b)the control of the electioneering activities and practices of candidates; and

(c)the provision of information as to expenditure incurred in relation to an election by or for the benefit of candidates.

[Section 4.59 amended: No. 17 of 2009 s. 19.]

Subdivision 5 — Stage 4: Preparing for voting

[Heading inserted: No. 19 of 2010 s. 44(2).]

4.60.Voting by electors

If section 4.56 applies and the election is not void under section 4.58(1), the electors may vote to elect a candidate or candidates to fill the vacant office or offices.

4.61.Choice of methods of conducting election

(1)The election can be conducted as a — 

postal election which is an election at which the method of casting votes is by posting or delivering them to an electoral officer on or before election day; or

voting in person election which is an election at which the principal method of casting votes is by voting in person on election day but at which votes can also be cast in person before election day, or posted or delivered, in accordance with regulations.

(2)The local government may decide* to conduct the election as a postal election.

* Absolute majority required.

(3)A decision under subsection (2) has no effect if it is made after the 80th day before election day unless a declaration has already been made in respect of an election for the local government and the declaration is in respect of an additional election for the same local government.

(4)A decision under subsection (2) has no effect unless it is made after a declaration is made under section 4.20(4) that the Electoral Commissioner is to be responsible for the conduct of the election or in conjunction with such a declaration.

(5)A decision made under subsection (2) on or before the 80th day before election day cannot be rescinded after that 80th day.

(6)For the purposes of this Act, the poll for an election is to be regarded as having been held on election day even though the election is conducted as a postal election.

(7)Unless a resolution under subsection (2) has effect, the election is to be conducted as a voting in person election.

[Section 4.61 amended: No. 64 of 1998 s. 25; No. 49 of 2004 s. 16(4) and 32(5).]

4.62.Polling places required

(1)For every election in a district or a ward the returning officer is to ensure that there will be at least one polling place in the district that is open between 8 a.m. and 6 p.m. on election day.

(2)For a voting in person election in a district that is divided into wards, the returning officer is to ensure that there will be at least one polling place in each ward that is open between 8 a.m. and 6 p.m. on election day unless the returning officer determines that, in respect of a particular ward, it is not necessary or not practicable — 

(a)to open a polling place in that ward on election day; or

(b)for there to be a polling place in that ward that is open all the time between 8 a.m. and 6 p.m. on election day.

(3)For a voting in person election in a ward the returning officer is to ensure that there will be at least one polling place in the ward that is open between 8 a.m. and 6 p.m. on election day unless the returning officer determines that it is not necessary or not practicable — 

(a)to open a polling place in that ward on election day; or

(b)for there to be a polling place in that ward that is open all the time between 8 a.m. and 6 p.m. on election day.

4.63.Presiding and other officers, appointment of

(1)The electoral officers appointed by the returning officer are to include a presiding officer and one or more other electoral officers for each polling place.

(2)The returning officer may appoint himself or herself to be the presiding officer for a polling place.

4.64.Public notice about election

(1)As soon as practicable after preparations for the election have been completed (but not later than on the 19th day before election day) the returning officer is to give Statewide public notice about the election in accordance with regulations including details of how, when and where the election will be conducted and who the candidates are.

(2)The Statewide public notice is called the election notice.

Subdivision 6 — Stage 5: Voting

[Heading inserted: No. 19 of 2010 s. 44(2).]

4.65.Right to vote

(1)An elector may vote at the election if the elector’s name — 

(a)is on the electoral roll used for the election; or

(b)was omitted in error from the electoral roll used for the election.

(2)If an elector’s name has changed, the reference in subsection (1) to the elector’s name includes a reference to the former name.

(3)A person who is not an elector, or who is under 18 years of age on election day, cannot vote at the election even if the person’s name is on the electoral roll used for the election.

[Section 4.65 amended: No. 66 of 2006 s. 11.]

4.66.One vote for each elector

An elector is not to vote more than once at the election.

4.67.Where to vote in person

In a voting in person election — 

(a)a vote (absent vote) may be cast before election day at the offices of another local government in such circumstances as are set out in regulations;

(b)a vote (early vote) may be cast before election day at the local government’s offices, or at a place notified for that purpose in the election notice, in such circumstances as are set out in regulations;

(c)a vote in person on election day may be cast at a polling place appointed for the election.

4.68.When to vote

(1)In a voting in person election — 

(a)an elector may cast an early or absent vote as soon as the election notice is given;

(b)an early vote may be cast not later than 4 p.m. on the day before election day;

(c)an absent vote may be cast not later than 4 p.m. on the 4th day before election day;

(d)a postal vote may be posted or delivered at any time after the relevant voting papers are issued but can only be accepted if it is received by an electoral officer in accordance with regulations not later than 6 p.m. on election day;

(e)a vote in person on election day may be cast between 8 a.m. and 6 p.m.

(2)In a postal election a vote may be posted or delivered at any time after the relevant voting papers are issued but can only be accepted if it is received by an electoral officer in accordance with regulations not later than 6 p.m. on election day.

4.69.How to vote

(1)If only one office is to be filled at the election, an elector is to cast his or her vote by marking the ballot paper in accordance with regulations so as to indicate the candidate named on the ballot paper whom the elector wishes to be elected.

(2)If 2 or more offices are to be filled at the election, an elector is to cast his or her vote by marking the ballot paper in accordance with regulations so as to indicate the candidate or candidates named on the ballot paper whom the elector wishes to be elected but is not to mark votes for more candidates than the number of offices to be filled.

[Section 4.69 amended: No. 9 of 2007 s. 4; No. 15 of 2009 s. 4.]

4.70.Presiding officer to maintain order at polling place

(1)The presiding officer is in charge of a polling place and has power to take any reasonable steps to ensure that voting is conducted in a peaceful and orderly manner.

(2)Without limiting subsection (1) the presiding officer may remove or exclude from the polling place any person who is disrupting or may disrupt the poll.

(3)For the purposes of this section the presiding officer may call on a member of the Police Force for assistance and a member of the Police Force is to render assistance if called on to do so.

4.71.Regulations about voting procedure

(1)Regulations are to include provisions about — 

(a)the form, content and printing of voting papers; and

(b)measures to ensure that, so far as practicable, all electors who can vote are issued with voting papers for postal votes for a postal election; and

(c)applying for and issuing postal votes for a voting in person election (and may provide for applications to have effect for successive elections); and

(d)completing, transmitting and dealing with voting papers for postal votes; and

(e)applying for, issuing, completing, and dealing with voting papers for absent votes and early votes; and

(f)issuing, completing and dealing with ballot papers for votes cast in person on election day; and

(g)measures to be taken to ensure that ballot papers are marked in secret; and

(h)the design, preparation, use, supervision and security of ballot boxes for the receipt of ballot papers; and

(i)the assistance that may be given to electors who are unable to vote without assistance; and

(j)the appointment of scrutineers for candidates and the rights and obligations of scrutineers; and

(k)the adjournment of the poll in the case of riot, violence or other cause; and

(l)any other matter relating to the casting of votes at elections or to votes so cast.

(2)In this section — 

voting papers means ballot papers and any other forms, declarations, envelopes, candidates’ profiles or other papers associated with ballot papers.

Subdivision 7 — Stage 6: Counting the votes

[Heading inserted: No. 19 of 2010 s. 44(2).]

4.72.Outcome of election to be determined

(1)As soon as is practicable after voting has finished the returning officer is to arrange for the votes to be counted and ascertain the result of the election.

(2)The votes are to be counted at the place or places notified for the purpose in the election notice or, if that is impracticable because of riot, violence or other cause, at any other place appointed by the returning officer.

(3)Subject to any directions of the returning officer, candidates and scrutineers may be present when the votes are counted.

4.73.Procedure when person is candidate in 2 elections

(1)If the election is to fill the office of mayor or president and any candidate is also a candidate in an election to fill an office or offices of councillor on the council held on the same election day, the result of the election for mayor or president is to be ascertained before the result of the other election is ascertained.

(2)If the election is to fill an office or offices of councillor and any candidate has been elected to fill the office of mayor or president on the council at an election held on the same election day, that candidate cannot be elected to an office of councillor.

(3)When subsection (2) applies, if the number of other candidates is equal to the number of offices to be filled at the election —

(a)the other candidate or candidates is or are elected unopposed; and

(b)the votes are to be counted —

(i)only if 2 or more of the councillors elected at that election will retire on different days; and

(ii)only for the purpose of applying the provisions of Schedule 4.2 about the order of retirement of councillors.

(4)When subsection (2) applies, if the number of other candidates is greater than the number of offices to be filled at the election, the counting of votes is to proceed.

(5)When votes are counted under subsection (3)(b) or (4), any vote marked for the candidate who has been elected to fill the office of mayor or president is to be disregarded.

[Section 4.73 amended: No. 64 of 1998 s. 26.]

4.74.How votes counted (Sch. 4.1)

The votes are to be counted, and the result of the election ascertained, in accordance with Schedule 4.1.

4.75.Giving effect to elector’s wishes

(1)The returning officer may accept a ballot paper that, in his or her opinion, clearly indicates the elector’s wishes as required or authorised by section 4.69 even if the ballot paper is not marked precisely in accordance with regulations.

(2)In accepting a ballot paper under subsection (1) the returning officer, if appointed under section 4.20(4), is to have regard and give effect to any directions or guidelines given by the Electoral Commissioner.

4.76.Review of decisions on ballot papers

Unless a Court of Disputed Returns decides otherwise, the returning officer’s decision about the acceptance or rejection of a ballot paper is final but this does not prevent the returning officer from reviewing the decision in the course of a re‑count of votes.

Subdivision 8 — Stage 7: Declaring the result

[Heading inserted: No. 19 of 2010 s. 44(2).]

4.77.Returning officer to declare result

As soon as is practicable after the result of the election is known under section 4.55, 4.57 or 4.72, the returning officer is to declare and give notice of the result in accordance with regulations.

4.78.Order of retirement of councillors

(1)If the election is to fill an office or offices of councillor, the returning officer, when declaring the result, is to declare the term for which and, if necessary, the vacant office to which, each successful candidate is elected.

(2)For the purpose of subsection (1) the returning officer is to make any determination that is necessary to give effect to the provisions of Schedule 4.2 about the order of retirement of councillors.

4.79.Report to Minister

(1)A returning officer is to provide the Minister with a report as to the result of the election.

(2)The report under subsection (1) — 

(a)is to be provided within the prescribed period; and

(b)is to deal with the matters prescribed for the purposes of subsection (1).

(3)On being directed by the Minister to do so the returning officer, if appointed under section 4.20(1) or (2), is to provide the Minister with a report on the conduct of the election dealing with the matters set out in the direction or prescribed for the purposes of this subsection.

(4)If the Electoral Commissioner is responsible for the conduct of the election, the Electoral Commissioner may provide the Minister with a report on the conduct of the election.

Division 10 — Validity of elections

4.80.Complaints about result of election

(1)A person who is dissatisfied with the result of an election or with the way in which an election was conducted may make an invalidity complaint.

(2)An invalidity complaint is a complaint that an election is invalid, or that another person should be declared elected, or that the term of office of a councillor should be longer or shorter than the term determined by the returning officer.

4.81.Complaints to go to Court of Disputed Returns

(1)An invalidity complaint is to be made to a Court of Disputed Returns, constituted by a magistrate, but can only be made within 28 days after notice is given of the result of the election.

(2)Regulations may provide for the way in which an invalidity complaint can be made to a Court of Disputed Returns, the way in which the court can deal with it and the declarations and orders that the court can make.

(3)If the court declares the election to have been invalid — 

(a)the election is null and void; and

(b)any office of member filled at the election is vacant; and

(c)the court is to fix a day for holding any poll needed for a fresh election; and

(d)the returning officer is to prepare for, conduct and ascertain and declare the result of the fresh election.

(4)If the court declares that a person (candidate A) ought to have been elected in place of another person (candidate B) — 

(a)candidate B is not to act as a member of the council; and

(b)candidate A is to be regarded as having been elected; and

(c)notice of candidate A’s election is to be published in accordance with regulations.

4.82.No appeal

There is no appeal from a decision of a Court of Disputed Returns.

4.83.Validity of election

An election is not invalid because of — 

(a)a failure to do something in connection with the election within the time, or for the period or before the date allowed or required under this Act, so long as the failure does not affect the result of the election; or

(b)an irregularity or defect in the appointment or authorisation of an electoral officer; or

(c)a formal omission, irregularity or defect in a document, declaration, publication or other thing that a person has made, issued or done in good faith.

4.84.Retention and availability of electoral papers, regulations about

Regulations may include provisions about — 

(a)the collection, retention and disposal of papers used in or for the purposes of an election; and

(b)the purposes for which and circumstances in which those papers may be inspected.

Division 11 — Electoral offences

4.85.Bribery and undue influence, offence

(1)A person who — 

(a)promises, offers or suggests a reward for, or on account of, or to induce, electoral conduct or a promise of electoral conduct; or

(b)gives, takes or seeks a reward for, or on account of, electoral conduct or a promise of electoral conduct,

commits an offence.

Penalty: $10 000 or imprisonment for 2 years.

(2)A person who — 

(a)threatens, offers or suggests detriment for, or on account of, or to induce, electoral conduct or a promise of electoral conduct; or

(b)uses, causes, inflicts or procures detriment for or on account of, electoral conduct; or

(c)interferes with the free exercise of the franchise of an elector,

commits an offence.

Penalty: $10 000 or imprisonment for 2 years.

(3)The making of a declaration of public policy or a promise of public action does not give rise to an offence against this section.

(4)In this section — 

detriment means violence, injury, punishment, damage, loss or disadvantage;

electoral conduct means — 

(a)candidature at an election; or

(b)withdrawal of candidature from an election; or

(c)a vote, or an omission to vote, at an election; or

(d)support of, or opposition to, a candidate for election;

reward means a reward in the form of valuable consideration or any other recompense, benefit or advantage.

4.86.Breach or neglect by officers, offence

An electoral officer who — 

(a)attempts to influence the vote of an elector, or, except by recording that vote, the result of an election; or

(b)discloses, except under compulsion of law, knowledge officially acquired concerning the vote of an elector; or

(c)refuses or wilfully neglects to discharge a duty imposed under this Part or otherwise contravenes a provision of this Part,

commits an offence.

Penalty: $10 000 or imprisonment for 2 years.

4.87.Printing and publication of electoral material

(1)A person who prints, publishes or distributes electoral material or causes electoral material to be printed, published or distributed, commits an offence unless — 

(a)in the case of all electoral material, the name and address (not being a post‑office box) of the person who authorised the electoral material appears at the end of the electoral material; and

(b)in the case of electoral material that is printed otherwise than in a newspaper, the name and business address of the printer appears at the end of the electoral material.

Penalty: $2 000.

(2)Subsection (1) does not apply to electoral material on an item included in a prescribed class of items.

(3)In this section — 

electoral material means any advertisement, handbill, pamphlet, notice, letter or article that is intended or calculated to affect the result of an election but does not include an advertisement in a newspaper announcing the holding of a meeting;

print includes photocopy or reproduce by any means.

[Section 4.87 amended: No. 49 of 2004 s. 41.]

4.88.Offence to print, publish or distribute misleading or deceptive material

(1)A person must not, during the relevant period in relation to an election —

(a)print, publish or distribute deceptive material; or

(b)cause deceptive material to be printed, published or distributed.

Penalty: a fine of $5 000 or imprisonment for one year.

(2)It is a defence to a charge under subsection (1) to prove that the accused person did not know, and could not reasonably have been expected to know, that the material was likely to mislead or deceive an elector in relation to the casting of the elector’s vote.

[(3)deleted]

(4)In this section — 

deceptive material means any matter or thing that is likely to mislead or deceive an elector in relation to the casting of the elector’s vote at the election;

print includes photocopy or reproduce by any means;

publish includes publish by radio or television;

relevant period means the period commencing when notice calling for nominations for the election is published and ending at 6 p.m. on election day.

[Section 4.88 amended: No. 26 of 2016 s. 10.]

4.89.Canvassing in or near polling places, offence

(1)If, on any day on which polling for an election takes place, a person — 

(a)canvasses for votes; or

(b)solicits the vote of an elector; or

(c)induces an elector not to vote for a particular candidate; or

(d)induces an elector not to vote at the election,

in a polling place or within 6 m from the entrance to a polling place, that person commits an offence.

Penalty: $2 000.

(2)It is a defence to a charge under subsection (1) to prove that the accused person was within 6 m of the entrance to a polling place with the approval of the presiding officer.

[Section 4.89 amended: No. 64 of 1998 s. 27.]

4.90.False statements, offence

(1)A person who makes a statement in an application, form, nomination, return, declaration or certificate or other document under this Part relating to an election, or in answer to a question authorised to be asked under this Part, knowing the statement to be false, commits an offence.

Penalty: $5 000 or imprisonment for one year.

(2)A person who induces another person to commit an offence against subsection (1) also commits an offence against subsection (1).

4.91.Nomination papers, ballot papers and ballot boxes, offences relating to

(1)A person who — 

(a)forges or fraudulently defaces or destroys a ballot paper or nomination paper; or

(b)fraudulently puts a ballot paper into a ballot box; or

(c)wilfully destroys, takes, opens or otherwise interferes with any ballot box or ballot papers without authority; or

(d)personates any elector,

commits an offence.

Penalty: $10 000 or imprisonment for 2 years.

(2)A person who — 

(a)supplies a ballot paper without authority; or

(b)is in possession of an unauthorised ballot paper; or

(c)votes more than once in an election; or

(d)marks a ballot paper without authority,

commits an offence.

Penalty: $5 000 or imprisonment for one year.

(3)A person who fraudulently leaves a polling place with a ballot paper commits an offence.

Penalty: $2 000.

4.92.Postal votes, offences relating to

A candidate in an election, or a person expressly authorised to act on behalf of a candidate in connection with an election, who, in relation to the election — 

(a)applies undue influence or pressure on an elector to apply for a postal vote; or

(b)interferes with an elector while the elector is applying for a postal vote; or

(c)takes custody of an envelope in which there is a postal vote; or

(d)causes any other person, not being the elector whose vote is in the envelope, to do anything referred to in paragraph (c),

commits an offence.

Penalty: $5 000 or imprisonment for one year.

4.93.Interference with electors: infringement of secrecy, offence

A person who — 

(a)unlawfully communicates with, assists or interferes with an elector while the elector is marking a ballot paper; or

(b)unlawfully looks at or becomes acquainted with the vote of an elector; or

(c)discloses the vote of an elector,

commits an offence.

Penalty: $5 000 or imprisonment for one year.

4.94.Other electoral offences

A person who — 

(a)when in a polling place on a day on which polling is taking place, misconducts himself or herself or fails to obey the reasonable instructions of an electoral officer; or

(b)re‑enters a polling place without permission after being removed from the polling place under section 4.70; or

(c)not being a candidate in an election, canvasses at the election while he or she is an employee of the local government in question; or

(d)wilfully defaces, mutilates, destroys or removes a notice, list or other document which an electoral officer, acting within the scope of his or her authority, has exhibited or caused to be exhibited; or

(e)bets on the result of an election,

commits an offence.

Penalty: $2 000.

4.95.Offences, attempts to commit

An attempt to commit an offence against this Part is an offence punishable as if the offence had been committed.

4.96.Investigation of electoral misconduct

(1)The Electoral Commissioner or the returning officer may investigate whether misconduct, malpractice or maladministration has occurred in relation to an election.

(2)An investigation can be carried out on the initiative of the Electoral Commissioner or returning officer or in response to a complaint or information received from any other person (including a candidate).

(3)For the purposes of an investigation the Electoral Commissioner or returning officer has the same powers, and protection from liability, as an authorised person has under Part 8, Division 1.

(4)Section 8.11 applies in relation to a direction given by the Electoral Commissioner or returning officer in the course of an investigation.

(5)After carrying out an investigation under this section the Electoral Commissioner may provide the Minister with a report on the investigation.

(6)After carrying out an investigation under this section the returning officer is to provide the Minister with a report on the investigation.

(7)This section has effect in addition to Part 8 and does not prevent or affect the exercise of any power under that Part.

4.97.Prosecutions

(1)A prosecution for an offence against this Part may be commenced by the returning officer or any person referred to in section 9.24(1).

(2)If the returning officer commences a prosecution for an offence against this Part —

(a)the local government is to pay any expenses incurred by, and any costs awarded against, the returning officer in connection with the proceedings; and

(b)the returning officer is to pay to the local government any fees or costs paid to the returning officer in respect of the proceedings.

[Section 4.97 inserted: No. 84 of 2004 s. 53.]

4.98.Criminal Code not to apply

Chapter XIV of The Criminal Code does not apply to elections held under this Act.

Division 12 — Polls and referendums

4.99.Election procedures to apply to polls and referendums

(1)To the extent to which the provisions of this Part are capable of being applied with or without adaptation in respect of polls under another Part, those provisions apply with or without adaptation in respect of those polls.

(2)Despite subsection (1), regulations may make necessary or convenient provisions in relation to preparing for, conducting and ascertaining the result of polls under another Part of this Act and for ensuring the purity of the conduct of them.

(3)Regulations may make necessary or convenient provisions in relation to preparing for, conducting and ascertaining the result of polls and referendums held by local governments, whether under local laws or otherwise, and for ensuring the purity of the conduct of them.

(4)Without limiting subsection (2) or (3), regulations may provide for the electoral rolls that are to be used, or prepared and used, for polls and referendums.

Part 5 — Administration

What this Part is about

This Part deals with — 

(a)council meetings, committees and their meetings and electors’ meetings; and

(b)the employment of persons by local governments and matters relating to local government employees; and

(c)annual reports and plans; and

(d)the disclosure of financial interests in matters affecting local government decisions and in returns; and

(e)public access to local government information; and

(f)the limitation of the payment of fees, expenses and allowances to council and committee members, mayors and presidents; and

(g)codes of conduct.

[Notes to Part 5 amended: No. 49 of 2004 s. 42(1).]

Division 1 — Introduction

5.1.Term used: committee

In this Part, unless the contrary intention appears — 

committee means a committee of a council.

5.2.Administration of local governments

The council of a local government is to ensure that there is an appropriate structure for administering the local government.

Division 2 — Council meetings, committees and their meetings and electors’ meetings

Subdivision 1 — Council meetings

5.3.Ordinary and special council meetings

(1)A council is to hold ordinary meetings and may hold special meetings.

(2)Ordinary meetings are to be held not more than 3 months apart.

(3)If a council fails to meet as required by subsection (2) the CEO is to notify the Minister of that failure.

5.4.Calling council meetings

An ordinary or a special meeting of a council is to be held —

(a)if called for by either — 

(i)the mayor or president; or

(ii)at least 1/3 of the councillors,

in a notice to the CEO setting out the date and purpose of the proposed meeting; or

(b)if so decided by the council.

5.5.Convening council meetings

(1)The CEO is to convene an ordinary meeting by giving each council member at least 72 hours’ notice of the date, time and place of the meeting and an agenda for the meeting.

(2)The CEO is to convene a special meeting by giving each council member notice, before the meeting, of the date, time, place and purpose of the meeting.

5.6.Who presides at council meetings

(1)The mayor or president is to preside at all meetings of the council.

(2)If the circumstances mentioned in section 5.34(a) or (b) apply the deputy mayor or deputy president may preside at a meeting of the council in accordance with that section.

(3)If the circumstances mentioned in section 5.34(a) or (b) apply and — 

(a)the office of deputy mayor or deputy president is vacant; or

(b)the deputy mayor or deputy president is not available or is unable or unwilling to perform the functions of mayor or president,

then, the council is to choose one of the councillors present to preside at the meeting.

5.7.Minister may reduce number for quorum and certain majorities

(1)The Minister may reduce the number of offices of member required for a quorum at a council meeting specified by the Minister if there would not otherwise be a quorum for the meeting.

(2)The Minister may reduce the number of offices of member required at a council meeting to make a decision specified by the Minister if the decision is one which would otherwise be required to be made by an absolute majority and a sufficient number of members would not otherwise be present at the meeting.

Subdivision 2 — Committees and their meetings

5.8.Establishment of committees

A local government may establish* committees of 3 or more persons to assist the council and to exercise the powers and discharge the duties of the local government that can be delegated to committees.

* Absolute majority required.

5.9.Committees, types of

(1)In this section — 

other person means a person who is not a council member or an employee.

(2)A committee is to comprise — 

(a)council members only; or

(b)council members and employees; or

(c)council members, employees and other persons; or

(d)council members and other persons; or

(e)employees and other persons; or

(f)other persons only.

5.10.Committee members, appointment of

(1)A committee is to have as its members — 

(a)persons appointed* by the local government to be members of the committee (other than those referred to in paragraph (b)); and

(b)persons who are appointed to be members of the committee under subsection (4) or (5).

* Absolute majority required.

(2)At any given time each council member is entitled to be a member of at least one committee referred to in section 5.9(2)(a) or (b) and if a council member nominates himself or herself to be a member of such a committee or committees, the local government is to include that council member in the persons appointed under subsection (1)(a) to at least one of those committees as the local government decides.

(3)Section 52 of the Interpretation Act 1984 applies to appointments of committee members other than those appointed under subsection (4) or (5) but any power exercised under section 52(1) of that Act can only be exercised on the decision of an absolute majority of the local government.

(4)If at a meeting of the council a local government is to make an appointment to a committee that has or could have a council member as a member and the mayor or president informs the local government of his or her wish to be a member of the committee, the local government is to appoint the mayor or president to be a member of the committee.

(5)If at a meeting of the council a local government is to make an appointment to a committee that has or will have an employee as a member and the CEO informs the local government of his or her wish — 

(a)to be a member of the committee; or

(b)that a representative of the CEO be a member of the committee,

the local government is to appoint the CEO or the CEO’s representative, as the case may be, to be a member of the committee.

5.11A.Deputy committee members

(1)The local government may appoint* a person to be a deputy of a member of a committee and may terminate such an appointment* at any time.

* Absolute majority required.

(2)A person who is appointed as a deputy of a member of a committee is to be —

(a)if the member of the committee is a council member — a council member; or

(b)if the member of the committee is an employee — an employee; or

(c)if the member of the committee is not a council member or an employee — a person who is not a council member or an employee; or

(d)if the member of the committee is a person appointed under section 5.10(5) — a person nominated by the CEO.

(3)A deputy of a member of a committee may perform the functions of the member when the member is unable to do so by reason of illness, absence or other cause.

(4)A deputy of a member of a committee, while acting as a member, has all the functions of and all the protection given to a member.

[Section 5.11A inserted: No. 17 of 2009 s. 20.]

5.11.Committee membership, tenure of

(1)Where a person is appointed as a member of a committee under section 5.10(4) or (5), the person’s membership of the committee continues until — 

(a)the person no longer holds the office by virtue of which the person became a member, or is no longer the CEO, or the CEO’s representative, as the case may be; or

(b)the person resigns from membership of the committee; or

(c)the committee is disbanded; or

(d)the next ordinary elections day,

whichever happens first.

(2)Where a person is appointed as a member of a committee other than under section 5.10(4) or (5), the person’s membership of the committee continues until — 

(a)the term of the person’s appointment as a committee member expires; or

(b)the local government removes the person from the office of committee member or the office of committee member otherwise becomes vacant; or

(c)the committee is disbanded; or

(d)the next ordinary elections day,

whichever happens first.

5.12.Presiding members and deputies, election of

(1)The members of a committee are to elect a presiding member from amongst themselves in accordance with Schedule 2.3, Division 1 as if the references in that Schedule — 

(a)to “office” were references to “office of presiding member”; and

(b)to “council” were references to “committee”; and

(c)to “councillors” were references to “committee members”.

(2)The members of a committee may elect a deputy presiding member from amongst themselves but any such election is to be in accordance with Schedule 2.3, Division 2 as if the references in that Schedule — 

(a)to “office” were references to “office of deputy presiding member”; and

(b)to “council” were references to “committee”; and

(c)to “councillors” were references to “committee members”; and

(d)to “mayor or president” were references to “presiding member”.

5.13.Deputy presiding members, functions of

If, in relation to the presiding member of a committee — 

(a)the office of presiding member is vacant; or

(b)the presiding member is not available or is unable or unwilling to perform the functions of presiding member,

then the deputy presiding member, if any, may perform the functions of presiding member.

5.14.Who acts if no presiding member

If, in relation to the presiding member of a committee — 

(a)the office of presiding member and the office of deputy presiding member are vacant; or

(b)the presiding member and the deputy presiding member, if any, are not available or are unable or unwilling to perform the functions of presiding member,

then the committee members present at the meeting are to choose one of themselves to preside at the meeting.

5.15.Reduction of quorum for committees

The local government may reduce* the number of offices of committee member required for a quorum at a committee meeting specified by the local government if there would not otherwise be a quorum for the meeting.

* Absolute majority required.

5.16.Delegation of some powers and duties to certain committees

(1)Under and subject to section 5.17, a local government may delegate* to a committee any of its powers and duties other than this power of delegation.

* Absolute majority required.

(2)A delegation under this section is to be in writing and may be general or as otherwise provided in the instrument of delegation.

(3)Without limiting the application of sections 58 and 59 of the Interpretation Act 1984 — 

(a)a delegation made under this section has effect for the period of time specified in the delegation or if no period has been specified, indefinitely; and

(b)any decision to amend or revoke a delegation under this section is to be by an absolute majority.

(4)Nothing in this section is to be read as preventing a local government from performing any of its functions by acting through another person.

5.17.Limits on delegation of powers and duties to certain committees

(1)A local government can delegate — 

(a)to a committee comprising council members only, any of the council’s powers or duties under this Act except — 

(i)any power or duty that requires a decision of an absolute majority or a 75% majority of the local government; and

(ii)any other power or duty that is prescribed;

and

(b)to a committee comprising council members and employees, any of the local government’s powers or duties that can be delegated to the CEO under Division 4; and

(c)to a committee referred to in section 5.9(2)(c), (d) or (e), any of the local government’s powers or duties that are necessary or convenient for the proper management of — 

(i)the local government’s property; or

(ii)an event in which the local government is involved.

(2)A local government cannot delegate any of its powers or duties to a committee referred to in section 5.9(2)(f).

[Section 5.17 amended: No. 49 of 2004 s. 16(2).]

5.18.Register of delegations to committees

A local government is to keep a register of the delegations made under this Division and review the delegations at least once every financial year.

Subdivision 3 — Matters affecting council and committee meetings

5.19.Quorum for meetings

The quorum for a meeting of a council or committee is at least 50% of the number of offices (whether vacant or not) of member of the council or the committee.

5.20.Decisions of councils and committees

(1)A decision of a council does not have effect unless it has been made by a simple majority or, if another kind of majority is required under any provision of this Act or has been prescribed by regulations or a local law for the particular kind of decision, by that kind of majority.

(2)A decision of a committee does not have effect unless it has been made by a simple majority or, if another kind of majority has been prescribed by regulations or a local law for the particular kind of decision, by that kind of majority.

(3)This section does not apply to elections — 

(a)by a council of the local government’s mayor or president under section 2.11; or

(b)by a council of the local government’s deputy mayor or president under section 2.15; or

(c)by a committee of the committee’s presiding member or deputy presiding member under section 5.12.

5.21.Voting

(1)Each council member and each member of a committee who is present at a meeting of the council or committee is entitled to one vote.

(2)Subject to section 5.67, each council member and each member of a committee to which a local government power or duty has been delegated who is present at a meeting of the council or committee is to vote.

(3)If the votes of members present at a council or a committee meeting are equally divided, the person presiding is to cast a second vote.

(4)If a member of a council or a committee specifically requests that there be recorded — 

(a)his or her vote; or

(b)the vote of all members present,

on a matter voted on at a meeting of the council or the committee, the person presiding is to cause the vote or votes, as the case may be, to be recorded in the minutes.

(5)A person who fails to comply with subsection (2) or (3) commits an offence.

[Section 5.21 amended: No. 49 of 2004 s. 43.]

5.22.Minutes of council and committee meetings

(1)The person presiding at a meeting of a council or a committee is to cause minutes to be kept of the meeting’s proceedings.

(2)The minutes of a meeting of a council or a committee are to be submitted to the next ordinary meeting of the council or the committee, as the case requires, for confirmation.

(3)The person presiding at the meeting at which the minutes are confirmed is to sign the minutes and certify the confirmation.

5.23.Meetings generally open to public

(1)Subject to subsection (2), the following are to be open to members of the public — 

(a)all council meetings; and

(b)all meetings of any committee to which a local government power or duty has been delegated.

(2)If a meeting is being held by a council or by a committee referred to in subsection (1)(b), the council or committee may close to members of the public the meeting, or part of the meeting, if the meeting or the part of the meeting deals with any of the following — 

(a)a matter affecting an employee or employees; and

(b)the personal affairs of any person; and

(c)a contract entered into, or which may be entered into, by the local government and which relates to a matter to be discussed at the meeting; and

(d)legal advice obtained, or which may be obtained, by the local government and which relates to a matter to be discussed at the meeting; and

(e)a matter that if disclosed, would reveal — 

(i)a trade secret; or

(ii)information that has a commercial value to a person; or

(iii)information about the business, professional, commercial or financial affairs of a person,

where the trade secret or information is held by, or is about, a person other than the local government; and

(f)a matter that if disclosed, could be reasonably expected to — 

(i)impair the effectiveness of any lawful method or procedure for preventing, detecting, investigating or dealing with any contravention or possible contravention of the law; or

(ii)endanger the security of the local government’s property; or

(iii)prejudice the maintenance or enforcement of a lawful measure for protecting public safety;

and

(g)information which is the subject of a direction given under section 23(1a) of the Parliamentary Commissioner Act 1971; and

(h)such other matters as may be prescribed.

(3)A decision to close a meeting or part of a meeting and the reason for the decision are to be recorded in the minutes of the meeting.

5.24.Question time for public

(1)Time is to be allocated for questions to be raised by members of the public and responded to at — 

(a)every ordinary meeting of a council; and

(b)such other meetings of councils or committees as may be prescribed.

(2)Procedures and the minimum time to be allocated for the asking of and responding to questions raised by members of the public at council or committee meetings are to be in accordance with regulations.

5.25.Regulations about council and committee meetings and committees

(1)Without limiting the generality of section 9.59, regulations may make provision in relation to — 

(a)the matters to be dealt with at ordinary or at special meetings of councils; and

(b)the functions of committees or types of committee; and

(ba)the holding of council or committee meetings by telephone, video conference or other electronic means; and

(c)the procedure to be followed at, and in respect of, council or committee meetings; and

(d)methods of voting at council or committee meetings; and

(e)the circumstances and manner in which a decision made at a council or a committee meeting may be revoked or changed (which may differ from the manner in which the decision was made); and

(f)the content and confirmation of minutes of council or committee meetings and the keeping and preserving of the minutes and any documents relating to meetings; and

(g)the giving of public notice of the date and agenda for council or committee meetings; and

(h)the exclusion from meetings of persons whose conduct is not conducive to the proper conduct of the meetings and the steps to be taken in the event of persons refusing to leave meetings; and

(i)the circumstances and time in which the unconfirmed minutes of council or committee meetings are to be made available for inspection by members of the public; and

(j)the circumstances and time in which notice papers and agenda relating to any council or committee meeting and reports and other documents which could be — 

(i)tabled at a council or committee meeting; or

(ii)produced by the local government or a committee for presentation at a council or committee meeting,

are to be made available for inspection by members of the public.

(2)Regulations providing for meetings to be held by telephone, video conference or other electronic means may modify the application of this Act in relation to those meetings to the extent necessary or convenient to facilitate the holding of those meetings in that way.

[Section 5.25 amended: No. 64 of 1998 s. 28.]

Subdivision 4 — Electors’ meetings

5.26.Term used: electors

In this Subdivision — 

electors includes ratepayers.

5.27.Electors’ general meetings

(1)A general meeting of the electors of a district is to be held once every financial year.

(2)A general meeting is to be held on a day selected by the local government but not more than 56 days after the local government accepts the annual report for the previous financial year.

(3)The matters to be discussed at general electors’ meetings are to be those prescribed.

5.28.Electors’ special meetings

(1)A special meeting of the electors of a district is to be held on the request of not less than — 

(a)100 electors or 5% of the number of electors —whichever is the lesser number; or

(b)1/3 of the number of council members.

(2)The request is to specify the matters to be discussed at the meeting and the form or content of the request is to be in accordance with regulations.

(3)The request is to be sent to the mayor or president.

(4)A special meeting is to be held on a day selected by the mayor or president but not more than 35 days after the day on which he or she received the request.

5.29.Convening electors’ meetings

(1)The CEO is to convene an electors’ meeting by giving — 

(a)at least 14 days’ local public notice; and

(b)each council member at least 14 days’ notice,

of the date, time, place and purpose of the meeting.

(2)The local public notice referred to in subsection (1)(a) is to be treated as having commenced at the time of publication of the notice under section 1.7(1)(a) and is to continue by way of exhibition under section 1.7(1)(b) and (c) until the meeting has been held.

5.30.Who presides at electors’ meetings

(1)The mayor or president is to preside at electors’ meetings.

(2)If the circumstances mentioned in section 5.34(a) or (b) apply the deputy mayor or deputy president may preside at an electors’ meeting in accordance with that section.

(3)If the circumstances mentioned in section 5.34(a) or (b) apply and — 

(a)the office of deputy mayor or deputy president is vacant; or

(b)the deputy mayor or deputy president is not available or is unable or unwilling to perform the functions of mayor or president,

then the electors present are to choose one of the councillors present to preside at the meeting but if there is no councillor present, able and willing to preside, then the electors present are to choose one of themselves to preside.

5.31.Procedure for electors’ meetings

The procedure to be followed at, and in respect of, electors’ meetings and the methods of voting at electors’ meetings are to be in accordance with regulations.

5.32.Minutes of electors’ meetings

The CEO is to — 

(a)cause minutes of the proceedings at an electors’ meeting to be kept and preserved; and

(b)ensure that copies of the minutes are made available for inspection by members of the public before the council meeting at which decisions made at the electors’ meeting are first considered.

5.33.Decisions made at electors’ meetings

(1)All decisions made at an electors’ meeting are to be considered at the next ordinary council meeting or, if that is not practicable — 

(a)at the first ordinary council meeting after that meeting; or

(b)at a special meeting called for that purpose,

whichever happens first.

(2)If at a meeting of the council a local government makes a decision in response to a decision made at an electors’ meeting, the reasons for the decision are to be recorded in the minutes of the council meeting.

Division 3 — Acting for the mayor or president

5.34.When deputy mayors and deputy presidents can act

If — 

(a)the office of mayor or president is vacant; or

(b)the mayor or president is not available or is unable or unwilling to perform the functions of the mayor or president,

then the deputy mayor may perform the functions of mayor and the deputy president may perform the functions of president, as the case requires.

5.35.Who acts if no mayor, president or deputy

(1)If the circumstances mentioned in section 5.34(a) or (b) apply and — 

(a)the office of deputy mayor or deputy president is vacant; or

(b)the deputy mayor or deputy president is not available or is unable or unwilling to perform the functions of mayor or president,

and the mayor or president or deputy will not be able to perform the functions of the mayor or president for a time known to the council, then the council may appoint a councillor to perform during that time the functions of mayor or president, as the case requires.

(2)If the circumstances mentioned in section 5.34(a) or (b) apply and — 

(a)the office of deputy mayor or deputy president is vacant; or

(b)the deputy mayor or deputy president is not available or is unable or unwilling to perform the functions of mayor or president,

and a person has not been appointed under subsection (1), the CEO, after consultation with, and obtaining the agreement of, 2 councillors selected by the CEO, may perform the functions of mayor or president, as the case requires.

Division 4 — Local government employees

5.36.Local government employees

(1)A local government is to employ — 

(a)a person to be the CEO of the local government; and

(b)such other persons as the council believes are necessary to enable the functions of the local government and the functions of the council to be performed.

(2)A person is not to be employed in the position of CEO unless the council — 

(a)believes that the person is suitably qualified for the position; and

(b)is satisfied* with the provisions of the proposed employment contract.

* Absolute majority required.

(3)A person is not to be employed by a local government in any other position unless the CEO — 

(a)believes that the person is suitably qualified for the position; and

(b)is satisfied with the proposed arrangements relating to the person’s employment.

(4)Unless subsection (5A) applies, if the position of CEO of a local government becomes vacant, it is to be advertised by the local government in the manner prescribed, and the advertisement is to contain such information with respect to the position as is prescribed.

(5A)Subsection (4) does not require a position to be advertised if it is proposed that the position be filled by a person in a prescribed class.

(5)For the avoidance of doubt, subsection (4) does not impose a requirement to advertise a position before the renewal of a contract referred to in section 5.39.

[Section 5.36 amended: No. 49 of 2004 s. 44; No. 17 of 2009 s. 21.]

5.37.Senior employees

(1)A local government may designate employees or persons belonging to a class of employee to be senior employees.

(2)The CEO is to inform the council of each proposal to employ or dismiss a senior employee, other than a senior employee referred to in section 5.39(1a), and the council may accept or reject the CEO’s recommendation but if the council rejects a recommendation, it is to inform the CEO of the reasons for its doing so.

(3)Unless subsection (4A) applies, if the position of a senior employee of a local government becomes vacant, it is to be advertised by the local government in the manner prescribed, and the advertisement is to contain such information with respect to the position as is prescribed.

(4A)Subsection (3) does not require a position to be advertised if it is proposed that the position be filled by a person in a prescribed class.

(4)For the avoidance of doubt, subsection (3) does not impose a requirement to advertise a position where a contract referred to in section 5.39 is renewed.

[Section 5.37 amended: No. 49 of 2004 s. 45 and 46(4); No. 17 of 2009 s. 22.]

5.38.Annual review of certain employees’ performances

The performance of each employee who is employed for a term of more than one year, including the CEO and each senior employee, is to be reviewed at least once in relation to every year of the employment.

5.39.Contracts for CEO and senior employees

(1)Subject to subsection (1a), the employment of a person who is a CEO or a senior employee is to be governed by a written contract in accordance with this section.

(1a)Despite subsection (1) —

(a)an employee may act in the position of a CEO or a senior employee for a term not exceeding one year without a written contract for the position in which he or she is acting; and

(b)a person may be employed by a local government as a senior employee for a term not exceeding 3 months, during any 2 year period, without a written contract.

(2)A contract under this section — 

(a)in the case of an acting or temporary position, cannot be for a term exceeding one year;

(b)in every other case, cannot be for a term exceeding 5 years.

(3)A contract under this section is of no effect unless — 

(a)the expiry date is specified in the contract; and

(b)there are specified in the contract performance criteria for the purpose of reviewing the person’s performance; and

(c)any other matter that has been prescribed as a matter to be included in the contract has been included.

(4)A contract under this section is to be renewable and subject to subsection (5), may be varied.

(5)A provision in, or condition of, an agreement or arrangement has no effect if it purports to affect the application of any provision of this section.

(6)Nothing in subsection (2) or (3)(a) prevents a contract for a period that is within the limits set out in subsection 2(a) or (b) from being terminated within that period on the happening of an event specified in the contract.

(7)A CEO is to be paid or provided with such remuneration as is determined by the Salaries and Allowances Tribunal under the Salaries and Allowances Act 1975 section 7A.

(8)A local government is to ensure that subsection (7) is complied with in entering into, or renewing, a contract of employment with a CEO.

[Section 5.39 amended: No. 49 of 2004 s. 46(1)‑(3); No. 2 of 2012 s. 13 (correction to reprint: Gazette 28 Mar 2013 p. 1317).]

5.40.Principles affecting employment by local governments

The following principles apply to a local government in respect of its employees — 

(a)employees are to be selected and promoted in accordance with the principles of merit and equity; and

(b)no power with regard to matters affecting employees is to be exercised on the basis of nepotism or patronage; and

(c)employees are to be treated fairly and consistently; and

(d)there is to be no unlawful discrimination against employees or persons seeking employment by a local government on a ground referred to in the Equal Opportunity Act 1984 or on any other ground; and

(e)employees are to be provided with safe and healthy working conditions in accordance with the Occupational Safety and Health Act 1984; and

(f)such other principles, not inconsistent with this Division, as may be prescribed.

5.41.Functions of CEO

The CEO’s functions are to — 

(a)advise the council in relation to the functions of a local government under this Act and other written laws; and

(b)ensure that advice and information is available to the council so that informed decisions can be made; and

(c)cause council decisions to be implemented; and

(d)manage the day to day operations of the local government; and

(e)liaise with the mayor or president on the local government’s affairs and the performance of the local government’s functions; and

(f)speak on behalf of the local government if the mayor or president agrees; and

(g)be responsible for the employment, management supervision, direction and dismissal of other employees (subject to section 5.37(2) in relation to senior employees); and

(h)ensure that records and documents of the local government are properly kept for the purposes of this Act and any other written law; and

(i)perform any other function specified or delegated by the local government or imposed under this Act or any other written law as a function to be performed by the CEO.

5.42.Delegation of some powers and duties to CEO

(1)A local government may delegate* to the CEO the exercise of any of its powers or the discharge of any of its duties under —

(a)this Act other than those referred to in section 5.43; or

(b)the Planning and Development Act 2005 section 214(2), (3) or (5).

* Absolute majority required.

(2)A delegation under this section is to be in writing and may be general or as otherwise provided in the instrument of delegation.

[Section 5.42 amended: No. 1 of 1998 s. 13; No. 28 of 2010 s. 70.]

5.43.Limits on delegations to CEO 29

A local government cannot delegate to a CEO any of the following powers or duties — 

(a)any power or duty that requires a decision of an absolute majority or a 75% majority of the local government;

(b)accepting a tender which exceeds an amount determined by the local government for the purpose of this paragraph;

(c)appointing an auditor;

(d)acquiring or disposing of any property valued at an amount exceeding an amount determined by the local government for the purpose of this paragraph;

(e)any of the local government’s powers under section 5.98, 5.98A, 5.99, 5.99A or 5.100;

(f)borrowing money on behalf of the local government;

(g)hearing or determining an objection of a kind referred to in section 9.5;

(ha)the power under section 9.49A(4) to authorise a person to sign documents on behalf of the local government;

(h)any power or duty that requires the approval of the Minister or the Governor;

(i)such other powers or duties as may be prescribed.

[Section 5.43 amended: No. 49 of 2004 s. 16(3) and 47; No. 17 of 2009 s. 23.]

5.44.CEO may delegate powers and duties to other employees

(1)A CEO may delegate to any employee of the local government the exercise of any of the CEO’s powers or the discharge of any of the CEO’s duties under this Act other than this power of delegation.

(2)A delegation under this section is to be in writing and may be general or as otherwise provided in the instrument of delegation.

(3)This section extends to a power or duty the exercise or discharge of which has been delegated by a local government to the CEO under section 5.42, but in the case of such a power or duty —

(a)the CEO’s power under this section to delegate the exercise of that power or the discharge of that duty; and

(b)the exercise of that power or the discharge of that duty by the CEO’s delegate,

are subject to any conditions imposed by the local government on its delegation to the CEO.

(4)Subsection (3)(b) does not limit the CEO’s power to impose conditions or further conditions on a delegation under this section.

(5)In subsections (3) and (4) —

conditions includes qualifications, limitations or exceptions.

[Section 5.44 amended: No. 1 of 1998 s. 14(1).]

5.45.Other matters relevant to delegations under this Division

(1)Without limiting the application of sections 58 and 59 of the Interpretation Act 1984 — 

(a)a delegation made under this Division has effect for the period of time specified in the delegation or where no period has been specified, indefinitely; and

(b)any decision to amend or revoke a delegation by a local government under this Division is to be by an absolute majority.

(2)Nothing in this Division is to be read as preventing — 

(a)a local government from performing any of its functions by acting through a person other than the CEO; or

(b)a CEO from performing any of his or her functions by acting through another person.

5.46.Register of, and records relevant to, delegations to CEO and employees

(1)The CEO is to keep a register of the delegations made under this Division to the CEO and to employees.

(2)At least once every financial year, delegations made under this Division are to be reviewed by the delegator.

(3)A person to whom a power or duty is delegated under this Act is to keep records in accordance with regulations in relation to the exercise of the power or the discharge of the duty.

5.47.Superannuation regulations

The Governor may make regulations about any matter relating to the provision of superannuation by a local government.

[Section 5.47 inserted: No. 17 of 2009 s. 24.]

5.48.Long service benefits for employees and employees of local government associations

(1)In this section — 

employee includes an employee of WALGA;

long service benefit means any of the following — 

(a)long service leave with pay; or

(b)long service leave taken on a pro rata basis with pay; or

(c)payment in lieu of long service leave.

(2)Long service benefits for employees are to be provided in accordance with regulations.

[Section 5.48 amended: No. 17 of 2009 s. 25.]

5.49.Workers’ compensation arrangement

(1)In this section — 

arrangement means the group self‑insurance arrangement established under subsection (2);

eligible body means — 

(a)a local government; or

(b)a regional local government; or

(ca)a regional subsidiary; or

(c)any other body with functions relating to local government approved in writing by the Minister;

WCIM Act means the Workers’ Compensation and Injury Management Act 1981;

WorkCover WA has the same meaning as it has in the WCIM Act.

(2)WALGA is to establish and manage, for the benefit of itself and any eligible body that chooses to participate, a group self‑insurance arrangement against liability to pay compensation under the WCIM Act.

(3)Subsection (2) does not apply unless the group of participants in the arrangement is exempted under section 164 of the WCIM Act.

(4)If an eligible body wishes to join or leave the arrangement, WALGA is to apply to WorkCover WA to seek a variation in the group exemption.

(5)Participants in the arrangement are jointly and severally liable for a liability of any participant to pay compensation under the WCIM Act, being a liability in relation to which that participant is exempted under section 164 of that Act from the requirement to insure.

(6)WALGA is to dissolve the arrangement if exemption of the group under section 164 of the WCIM Act is cancelled.

(7)Nothing in this section limits the application of the WCIM Act.

[Section 5.49 amended: No. 42 of 2004 s. 165; No. 49 of 2004 s. 12; No. 26 of 2016 s. 11.]

5.50.Payments to employees in addition to contract or award

(1)A local government is to prepare a policy in relation to employees whose employment with the local government is finishing, setting out — 

(a)the circumstances in which the local government will pay an employee an amount in addition to any amount to which the employee is entitled under a contract of employment or award relating to the employee; and

(b)the manner of assessment of the additional amount,

and cause local public notice to be given in relation to the policy.

(1a)A local government must not make any payment of the kind described in subsection (1)(a) unless the local government has adopted a policy prepared under subsection (1).

(2)A local government may make a payment — 

(a)to an employee whose employment with the local government is finishing; and

(b)that is more than the additional amount set out in the policy prepared under subsection (1) and adopted by the local government,

but local public notice is to be given in relation to the payment made.

(3)The value of a payment or payments made to a person under this section is not to exceed such amount as is prescribed or provided for by regulations.

(4)In this section a reference to a payment to a person includes a reference to the disposition of property in favour of, or the conferral of any other financial benefit on, the person.

[Section 5.50 amended: No. 64 of 1998 s. 29.]

5.51.Employee who nominates for election to council to take leave

(1)If an employee of a local government nominates to be a candidate for election as a member of the council and the nomination is accepted then, by operation of this subsection, the employee is to be treated as being on leave from his or her employment on and from the day that the nomination is accepted until the day of the declaration of the poll or, if the nomination is cancelled, on the day of the cancellation.

(2)An employee to whom subsection (1) applies may, during the period of leave, be paid leave entitlements to which the employee is entitled under a contract of employment or award relating to the employee but otherwise the leave is to be unpaid leave.

Division 5 — Annual reports and planning

[Heading amended: No. 49 of 2004 s. 42(2).]

[5.52.Deleted: No. 49 of 2004 s. 42(3).]

5.53.Annual reports

(1)The local government is to prepare an annual report for each financial year.

(2)The annual report is to contain — 

(a)a report from the mayor or president; and

(b)a report from the CEO; and

[(c), (d)deleted]

(e)an overview of the plan for the future of the district made in accordance with section 5.56, including major initiatives that are proposed to commence or to continue in the next financial year; and

(f)the financial report for the financial year; and

(g)such information as may be prescribed in relation to the payments made to employees; and

(h)the auditor’s report prepared under section 7.9(1) or 7.12AD(1) for the financial year; and

(ha)a matter on which a report must be made under section 29(2) of the Disability Services Act 1993; and

(hb)details of entries made under section 5.121 during the financial year in the register of complaints, including —

(i)the number of complaints recorded in the register of complaints; and

(ii)how the recorded complaints were dealt with; and

(iii)any other details that the regulations may require;

and

(i)such other information as may be prescribed.

[Section 5.53 amended: No. 44 of 1999 s. 28(3); No. 49 of 2004 s. 42(4) and (5); No. 1 of 2007 s. 6; No. 5 of 2017 s. 7(1).]

5.54.Acceptance of annual reports

(1)Subject to subsection (2), the annual report for a financial year is to be accepted* by the local government no later than 31 December after that financial year.

* Absolute majority required.

(2)If the auditor’s report is not available in time for the annual report for a financial year to be accepted by 31 December after that financial year, the annual report is to be accepted by the local government no later than 2 months after the auditor’s report becomes available.

[Section 5.54 amended: No. 49 of 2004 s. 49.]

5.55.Notice of annual reports

The CEO is to give local public notice of the availability of the annual report as soon as practicable after the report has been accepted by the local government.

5.55A.Publication of annual reports

The CEO is to publish the annual report on the local government’s official website within 14 days after the report has been accepted by the local government.

[Section 5.55A inserted: No. 5 of 2017 s. 8.]

5.56.Planning for the future

(1)A local government is to plan for the future of the district.

(2)A local government is to ensure that plans made under subsection (1) are in accordance with any regulations made about planning for the future of the district.

[Section 5.56 inserted: No. 49 of 2004 s. 42(6).]

[5.57, 5.58.Deleted: No. 49 of 2004 s. 42(6).]

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, unless the contrary intention appears — 

extent, in relation to an interest, includes the value and amount of the interest;

member, in relation to a council or committee, means a council member or a member of the committee;

relevant person means a person who is either a member or a person to whom section 5.70 or 5.71 applies.

5.60.When person has an interest

For the purposes of this Subdivision, a relevant person has an interest in a matter if either —

(a)the relevant person; or

(b)a person with whom the relevant person is closely associated,

has —

(c)a direct or indirect financial interest in the matter; or

(d)a proximity interest in the matter.

[Section 5.60 inserted: No. 64 of 1998 s. 30.]

5.60A.Financial interest

For the purposes of this Subdivision, a person has a financial interest in a matter if it is reasonable to expect that the matter will, if dealt with by the local government, or an employee or committee of the local government or member of the council of the local government, in a particular way, result in a financial gain, loss, benefit or detriment for the person.

[Section 5.60A inserted: No. 64 of 1998 s. 30; amended: No. 49 of 2004 s. 50.]

5.60B.Proximity interest

(1)For the purposes of this Subdivision, a person has a proximity interest in a matter if the matter concerns —

(a)a proposed change to a planning scheme affecting land that adjoins the person’s land; or

(b)a proposed change to the zoning or use of land that adjoins the person’s land; or

(c)a proposed development (as defined in section 5.63(5)) of land that adjoins the person’s land.

(2)In this section, land (the proposal land) adjoins a person’s land if —

(a)the proposal land, not being a thoroughfare, has a common boundary with the person’s land; or

(b)the proposal land, or any part of it, is directly across a thoroughfare from, the person’s land; or

(c)the proposal land is that part of a thoroughfare that has a common boundary with the person’s land.

(3)In this section a reference to a person’s land is a reference to any land owned by the person or in which the person has any estate or interest.

[Section 5.60B inserted: No. 64 of 1998 s. 30.]

5.61.Indirect financial interests

A reference in this Subdivision to an indirect financial interest of a person in a matter includes a reference to a financial relationship between that person and another person who requires a local government decision in relation to the matter.

5.62.Closely associated persons

(1)For the purposes of this Subdivision a person is to be treated as being closely associated with a relevant person if — 

(a)the person is in partnership with the relevant person; or

(b)the person is an employer of the relevant person; or

(c)the person is a beneficiary under a trust, or an object of a discretionary trust, of which the relevant person is a trustee; or

(ca)the person belongs to a class of persons that is prescribed; or

(d)the person is a body corporate — 

(i)of which the relevant person is a director, secretary or executive officer; or

(ii)in which the relevant person holds shares having a total value exceeding — 

(I)the prescribed amount; or

(II)the prescribed percentage of the total value of the issued share capital of the company,

whichever is less;

or

(e)the person is the spouse, de facto partner or child of the relevant person and is living with the relevant person; or

(ea)the relevant person is a council member and the person —

(i)gave a notifiable gift to the relevant person in relation to the election at which the relevant person was last elected; or

(ii)has given a notifiable gift to the relevant person since the relevant person was last elected;

or

(eb)the relevant person is a council member and since the relevant person was last elected the person —

(i)gave to the relevant person a gift that section 5.82 requires the relevant person to disclose; or

(ii)made a contribution to travel undertaken by the relevant person that section 5.83 requires the relevant person to disclose;

or

(f)the person has a relationship specified in any of paragraphs (a) to (d) in respect of the relevant person’s spouse or de facto partner if the spouse or de facto partner is living with the relevant person.

(2)In subsection (1) —

notifiable gift means a gift about which the relevant person was or is required by regulations under section 4.59(a) to provide information in relation to an election;

value, in relation to shares, means the value of the shares calculated in the prescribed manner or using the prescribed method.

[Section 5.62 amended: No. 64 of 1998 s. 31; No. 28 of 2003 s. 110; No. 49 of 2004 s. 51; No. 17 of 2009 s. 26.]

5.63.Some interests need not be disclosed

(1)Sections 5.65, 5.70 and 5.71 do not apply to a relevant person who has any of the following interests in a matter — 

(a)an interest common to a significant number of electors or ratepayers; or

(b)an interest in the imposition of any rate, charge or fee by the local government; or

(c)an interest relating to —

(i)a fee, reimbursement of an expense or an allowance to which section 5.98, 5.98A, 5.99, 5.99A, 5.100 or 5.101(2) refers; or

(ii)a gift permitted by section 5.100A; or

(iii)reimbursement of an expense that is the subject of regulations made under section 5.101A;

or

(d)an interest relating to the pay, terms or conditions of an employee unless — 

(i)the relevant person is the employee; or

(ii)either the relevant person’s spouse, de facto partner or child is the employee if the spouse, de facto partner or child is living with the relevant person;

or

[(e)deleted]

(f)an interest arising only because the relevant person is, or intends to become, a member or office bearer of a body with non‑profit making objects; or

(g)an interest arising only because the relevant person is, or intends to become, a member, office bearer, officer or employee of a department of the Public Service of the State or Commonwealth or a body established under this Act or any other written law; or

(h)a prescribed interest.

(2)If a relevant person has a financial interest because the valuation of land in which the person has an interest may be affected by — 

(a)any proposed change to a planning scheme for any area in the district; or

(b)any proposed change to the zoning or use of land in the district; or

(c)the proposed development of land in the district,

then, subject to subsection (3) and (4), the person is not to be treated as having an interest in a matter for the purposes of sections 5.65, 5.70 and 5.71.

(3)If a relevant person has a financial interest because the valuation of land in which the person has an interest may be affected by — 

(a)any proposed change to a planning scheme for that land or any land adjacent to that land; or

(b)any proposed change to the zoning or use of that land or any land adjacent to that land; or

(c)the proposed development of that land or any land adjacent to that land,

then nothing in this section prevents sections 5.65, 5.70 and 5.71 from applying to the relevant person.

(4)If a relevant person has a financial interest because any land in which the person has any interest other than an interest relating to the valuation of that land or any land adjacent to that land may be affected by — 

(a)any proposed change to a planning scheme for any area in the district; or

(b)any proposed change to the zoning or use of land in the district; or

(c)the proposed development of land in the district,

then nothing in this section prevents sections 5.65, 5.70 and 5.71 from applying to the relevant person.

(5)A reference in subsection (2), (3) or (4) to the development of land is a reference to the development, maintenance or management of the land or of services or facilities on the land.

[Section 5.63 amended: No. 1 of 1998 s. 15; No. 64 of 1998 s. 32; No. 28 of 2003 s. 111; No. 49 of 2004 s. 52; No. 17 of 2009 s. 27; No. 26 of 2016 s. 12.]

[5.64.Deleted: No. 28 of 2003 s. 112.]

5.65.Members’ interests in matters to be discussed at meetings to be disclosed

(1)A member who has an interest in any matter to be discussed at a council or committee meeting that will be attended by the member must disclose the nature of the interest — 

(a)in a written notice given to the CEO before the meeting; or

(b)at the meeting immediately before the matter is discussed.

Penalty: $10 000 or imprisonment for 2 years.

(2)It is a defence to a prosecution under this section if the member proves that he or she did not know — 

(a)that he or she had an interest in the matter; or

(b)that the matter in which he or she had an interest would be discussed at the meeting.

(3)This section does not apply to a person who is a member of a committee referred to in section 5.9(2)(f).

5.66.Meeting to be informed of disclosures

If a member has disclosed an interest in a written notice given to the CEO before a meeting then — 

(a)before the meeting the CEO is to cause the notice to be given to the person who is to preside at the meeting; and

(b)at the meeting the person presiding is to bring the notice and its contents to the attention of the persons present immediately before the matters to which the disclosure relates are discussed.

[Section 5.66 amended: No. 1 of 1998 s. 16; No. 64 of 1998 s. 33.]

5.67.Disclosing members not to participate in meetings

A member who makes a disclosure under section 5.65 must not — 

(a)preside at the part of the meeting relating to the matter; or

(b)participate in, or be present during, any discussion or decision making procedure relating to the matter,

unless, and to the extent that, the disclosing member is allowed to do so under section 5.68 or 5.69.

Penalty: $10 000 or imprisonment for 2 years.

5.68.Councils and committees may allow members disclosing interests to participate etc. in meetings

(1)If a member has disclosed, under section 5.65, an interest in a matter, the members present at the meeting who are entitled to vote on the matter — 

(a)may allow the disclosing member to be present during any discussion or decision making procedure relating to the matter; and

(b)may allow, to the extent decided by those members, the disclosing member to preside at the meeting (if otherwise qualified to preside) or to participate in discussions and the decision making procedures relating to the matter if — 

(i)the disclosing member also discloses the extent of the interest; and

(ii)those members decide that the interest — 

(I)is so trivial or insignificant as to be unlikely to influence the disclosing member’s conduct in relation to the matter; or

(II)is common to a significant number of electors or ratepayers.

(2)A decision under this section is to be recorded in the minutes of the meeting relating to the matter together with the extent of any participation allowed by the council or committee.

(3)This section does not prevent the disclosing member from discussing, or participating in the decision making process on, the question of whether an application should be made to the Minister under section 5.69.

5.69.Minister may allow members disclosing interests to participate etc. in meetings

(1)If a member has disclosed, under section 5.65, an interest in a matter, the council or the CEO may apply to the Minister to allow the disclosing member to participate in the part of the meeting, and any subsequent meeting, relating to the matter.

(2)An application made under subsection (1) is to include — 

(a)details of the nature of the interest disclosed and the extent of the interest; and

(b)any other information required by the Minister for the purposes of the application.

(3)On an application under this section the Minister may allow, on any condition determined by the Minister, the disclosing member to preside at the meeting, and at any subsequent meeting, (if otherwise qualified to preside) or to participate in discussions or the decision making procedures relating to the matter if — 

(a)there would not otherwise be a sufficient number of members to deal with the matter; or

(b)the Minister is of the opinion that it is in the interests of the electors or ratepayers to do so.

(4)A person must not contravene a condition imposed by the Minister under this section.

Penalty: $10 000 or imprisonment for 2 years.

[Section 5.69 amended: No. 49 of 2004 s. 53.]

5.69A.Minister may exempt committee members from disclosure requirements

(1)A council or a CEO may apply to the Minister to exempt the members of a committee from some or all of the provisions of this Subdivision relating to the disclosure of interests by committee members.

(2)An application under subsection (1) is to include —

(a)the name of the committee, details of the function of the committee and the reasons why the exemption is sought; and

(b)any other information required by the Minister for the purposes of the application.

(3)On an application under this section the Minister may grant the exemption, on any conditions determined by the Minister, if the Minister is of the opinion that it is in the interests of the electors or ratepayers to do so.

(4)A person must not contravene a condition imposed by the Minister under this section.

Penalty: $10 000 or imprisonment for 2 years.

[Section 5.69A inserted: No. 64 of 1998 s. 34(1).]

5.70.Employees to disclose interests relating to advice or reports

(1)In this section — 

employee includes a person who, under a contract for services with the local government, provides advice or a report on a matter.

(2)An employee who has an interest in any matter in respect of which the employee is providing advice or a report directly to the council or a committee must disclose the nature of the interest when giving the advice or report.

(3)An employee who discloses an interest under this section must, if required to do so by the council or committee, as the case may be, disclose the extent of the interest.

Penalty: $10 000 or imprisonment for 2 years.

5.71.Employees to disclose interests relating to delegated functions

If, under Division 4, an employee has been delegated a power or duty relating to a matter and the employee has an interest in the matter, the employee must not exercise the power or discharge the duty and — 

(a)in the case of the CEO, must disclose to the mayor or president the nature of the interest as soon as practicable after becoming aware that he or she has the interest in the matter; and

(b)in the case of any other employee, must disclose to the CEO the nature of the interest as soon as practicable after becoming aware that he or she has the interest in the matter.

Penalty: $10 000 or imprisonment for 2 years.

5.72.Defence to prosecution

It is a defence to a prosecution under section 5.70 or 5.71 if the person proves that he or she did not know that he or she had an interest in the matter.

5.73.Disclosures to be minuted

A disclosure under section 5.65 or 5.70 is to be recorded in the minutes of the meeting relating to the disclosure.

Subdivision 2 — Disclosure of financial interests in returns

5.74.Terms used

(1)In this Subdivision, unless the contrary intention appears — 

address means — 

(a)in relation to a person other than a corporation, the last residential or business address of the person known to the person disclosing the address in a return; or

(b)in relation to a corporation, the address of the registered office or principal place of business of the corporation in the State or, where there is no such office or place, the address of the principal office or place of business of the corporation in the place in which it is incorporated or taken to be registered; or

(c)in relation to any real property, the postal address of the property or the particulars of title of the property;

annual return means a return required by section 5.76;

corporation means any body corporate, whether formed or incorporated within or outside the State, and includes any company or foreign company (as those terms are defined in the Corporations Act 2001 of the Commonwealth) but does not include — 

(a)a body corporate that is incorporated within Australia or an external Territory and is a public authority or an instrumentality or agency of the Crown; or

(b)a corporation sole; or