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This is a Bill, not an Act. For current law, see the Acts databases.
Queensland
Local Government Electoral
Bill 2011
Queensland
Local Government Electoral Bill 2011
Contents
Page
Part 1 Preliminary
1 Short title . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
2 Commencement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
3 Purpose of this Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
4 Definitions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
5 Particular references in this Act . . . . . . . . . . . . . . . . . . . . . . . . . . 22
6 References to divisions includes wards . . . . . . . . . . . . . . . . . . . . 23
7 Meaning of conclusion of local government election . . . . . . . . . . 23
Part 2 Administration
Division 1 Electoral commission
8 Additional functions and powers of electoral commission . . . . . . 24
Division 2 Electoral officers for local government elections
9 Returning officers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
10 Assistant returning officers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
11 Presiding officers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
12 Issuing officers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
13 Membership of a political party ends particular appointments . . . 26
14 Obligation to notify of membership of a political party . . . . . . . . . 27
15 Returning officer may act through other officers . . . . . . . . . . . . . 27
16 Assistant returning officer may act through other officers . . . . . . 28
Part 3 Voters rolls
17 Returning officer must compile voters roll . . . . . . . . . . . . . . . . . . 28
18 Cut off day for compiling voters roll . . . . . . . . . . . . . . . . . . . . . . . 28
19 Requirements of voters roll. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
20 Inspection of voters roll. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
21 Supply of voters roll to candidates . . . . . . . . . . . . . . . . . . . . . . . . 29
Local Government Electoral Bill 2011
Contents
Part 4 Local government elections
Division 1 Local government elections
22 Types of elections . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
23 Date of quadrennial elections. . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
24 Date of by-elections . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Division 2 Candidates for local government elections
Subdivision 1 Nominations of candidates
25 Calling for nominations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
26 Who may be nominated . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
27 How and when nomination takes place . . . . . . . . . . . . . . . . . . . . 33
28 Grounds for deciding a person is not properly nominated . . . . . . 33
29 Effect of multiple nominations. . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
30 Withdrawal of consent to nomination . . . . . . . . . . . . . . . . . . . . . . 35
31 Certification of nominations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
32 Announcement of nominations. . . . . . . . . . . . . . . . . . . . . . . . . . . 37
33 Death of candidate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
34 Procedure if number of candidates not more than number
required ....................................... 37
35 Procedure if number of candidates exceeds number required. . . 38
36 Procedure on death of candidate when poll to be conducted . . . 39
37 If successful candidate dies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
38 Extension of times . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
Subdivision 2 Deposits accompanying nomination
39 Deposit to accompany nomination . . . . . . . . . . . . . . . . . . . . . . . . 40
40 Disposal of deposits generally . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
Subdivision 3 Recording of membership and agents for group of
candidates
41 Record of membership in group of candidates. . . . . . . . . . . . . . . 42
42 Appointment of agent for group of candidates . . . . . . . . . . . . . . . 42
43 Register of group agents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
Division 3 Arrangements for local government elections
Subdivision 1 Polls by ballots
44 Poll by ballot . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
45 Direction that poll be conducted by postal ballot . . . . . . . . . . . . . 44
Subdivision 2 Polling booths
46 Kinds of polling booths . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
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Local Government Electoral Bill 2011
Contents
47 Polling booths--general . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
48 Provision of ordinary polling booths . . . . . . . . . . . . . . . . . . . . . . . 46
49 Declaration of mobile polling booths . . . . . . . . . . . . . . . . . . . . . . 47
50 Declaration of early polling booths . . . . . . . . . . . . . . . . . . . . . . . . 48
51 Duty of person in charge of institution . . . . . . . . . . . . . . . . . . . . . 49
52 Privacy for electors casting votes at polling booths . . . . . . . . . . . 49
53 Adjournment of poll . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
Subdivision 3 Ballot boxes, ballot papers and other documents
54 Ballot boxes generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
55 Requirements of ballot papers . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
56 Ballot papers for separate polls . . . . . . . . . . . . . . . . . . . . . . . . . . 51
57 Order of candidates' names on ballot papers. . . . . . . . . . . . . . . . 51
58 Distribution of ballot papers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
Subdivision 4 Scrutineers
59 Candidates' entitlement to scrutineers . . . . . . . . . . . . . . . . . . . . . 54
60 Appointment of scrutineers. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
61 Proof of identification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
62 Powers of scrutineers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
Subdivision 5 Errors, omissions or delays
63 Correction of errors, omissions or delays . . . . . . . . . . . . . . . . . . . 55
Division 4 Who may vote
64 Who may vote. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
Division 5 How voting takes place
Subdivision 1 System of voting
65 System of voting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
66 Compulsory voting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
Subdivision 2 Casting votes
67 Ways in which to cast votes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
68 Who may cast votes in particular ways . . . . . . . . . . . . . . . . . . . . 57
69 Who must complete a declaration envelope. . . . . . . . . . . . . . . . . 58
70 Casting an ordinary vote . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
71 Casting a pre-poll vote . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
72 Casting a postal vote . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
73 Voting hours for polling booths . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
74 Particular responsibilities of returning officer when electors cast
postal votes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
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75 Particular responsibilities of issuing officers when electors cast
ordinary or pre-poll votes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
Subdivision 3 Special arrangements for particular voters
76 Arrangements for electors at hospitals etc. . . . . . . . . . . . . . . . . . 64
77 Arrangements for electoral visitor voting . . . . . . . . . . . . . . . . . . . 65
78 Help for electors voting. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
Subdivision 4 Distribution of ballot papers
79 Applications to cast postal votes in local government elections
that are not postal ballot elections . . . . . . . . . . . . . . . . . . . . . . . . 67
80 Distribution of ballot papers to electors for postal ballot elections 69
81 Applications to cast postal votes in postal ballot elections . . . . . . 69
82 Distribution of ballot papers to particular electors whose
address has been omitted from a voters roll . . . . . . . . . . . . . . . . 71
Subdivision 5 Recording a vote on ballot papers
83 How electors must record a vote on a ballot
paper--optional-preferential voting . . . . . . . . . . . . . . . . . . . . . . . 71
84 How electors must record a vote on a ballot
paper--first-past-the-post voting . . . . . . . . . . . . . . . . . . . . . . . . . 72
85 Replacement ballot papers. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
Division 6 Formal and informal votes
86 Formal and informal ballot papers--optional-preferential voting . 74
87 Formal and informal ballot papers--first-past-the-post voting . . . 75
88 Ballot paper partly formal and partly informal. . . . . . . . . . . . . . . . 76
Division 7 Counting of votes
Subdivision 1 Processing declaration envelopes
89 Preliminary processing of declaration envelopes--general . . . . . 77
90 Preliminary processing of declaration envelopes--postal ballot
election .......................................... 77
91 Procedure for processing declaration envelopes . . . . . . . . . . . . . 77
Subdivision 2 Preliminary counts
92 Preliminary counting of ordinary votes . . . . . . . . . . . . . . . . . . . . . 79
93 Objections by scrutineers during preliminary count . . . . . . . . . . . 81
94 Receipt of things given to returning officer . . . . . . . . . . . . . . . . . . 81
Subdivision 3 Official count
95 Official counting of votes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82
96 Objections by scrutineers during official count . . . . . . . . . . . . . . . 84
Subdivision 4 Deciding results of local government elections
97 Counting of votes for optional-preferential system . . . . . . . . . . . . 84
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98 Counting of votes for first-past-the-post system . . . . . . . . . . . . . . 86
99 Returning officer's duty after counting votes . . . . . . . . . . . . . . . . 88
Division 8 Notifying the results of local government elections etc.
100 Notifying the results of an election . . . . . . . . . . . . . . . . . . . . . . . . 89
101 Notice of results of poll to candidates. . . . . . . . . . . . . . . . . . . . . . 90
102 Storage and disposal of material resulting from election . . . . . . . 90
103 Notice to electors whose ballot papers are not accepted. . . . . . . 91
104 Notice to electoral commission of error in electoral roll . . . . . . . . 91
Part 5 Fresh elections
105 Arrangements for fresh election . . . . . . . . . . . . . . . . . . . . . . . . . . 91
Part 6 Electoral funding and financial disclosure
Division 1 Preliminary
106 Definitions for pt 6. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92
107 Meaning of gifts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93
108 Meaning of value of gifts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 94
109 Meaning of relevant details for gifts . . . . . . . . . . . . . . . . . . . . . . . 95
110 References to candidates. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96
111 Agents and campaign committees . . . . . . . . . . . . . . . . . . . . . . . . 96
112 Related corporations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96
Division 2 Disclosure periods
Subdivision 1 Disclosure period for candidates
113 Disclosure period for candidates who are councillors . . . . . . . . . 97
114 Disclosure period for candidates who were previously
candidates in a local government election . . . . . . . . . . . . . . . . . . 97
115 Disclosure period for new candidates. . . . . . . . . . . . . . . . . . . . . . 98
Subdivision 2 Disclosure period for groups of candidates
116 Disclosure period for groups of candidates . . . . . . . . . . . . . . . . . 98
Division 3 Disclosure by candidates
117 Gifts to candidates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99
118 Gifts to groups of candidates . . . . . . . . . . . . . . . . . . . . . . . . . . . . 100
119 Particular gifts not to be received . . . . . . . . . . . . . . . . . . . . . . . . . 101
120 Loans to candidates or groups of candidates. . . . . . . . . . . . . . . . 102
121 Particular loans not to be received . . . . . . . . . . . . . . . . . . . . . . . . 104
122 Electoral commission to give reminder notice to candidates . . . . 105
Division 4 Disclosure by third parties
123 Definition for div 4. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 106
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124 Third party expenditure for political activity . . . . . . . . . . . . . . . . . 107
125 Gifts received by third parties to enable expenditure for political
activity ........................................... 108
Division 5 Operation of accounts
126 Requirement for candidate to operate dedicated account . . . . . . 109
127 Requirement for group of candidates to operate dedicated
account ....................................... 110
Division 6 Gifts register
128 Register of gifts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 110
129 Access to gifts register . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 111
130 Queries on contents of gifts register. . . . . . . . . . . . . . . . . . . . . . . 111
Division 7 Miscellaneous
131 Statement about returns. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 112
132 Amendment of returns . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 113
133 Things taken to be done by political party . . . . . . . . . . . . . . . . . . 113
134 Noncompliance with part does not affect election . . . . . . . . . . . . 113
Part 7 Disputed results
Division 1 Disputing local government elections
135 Definitions for div 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 114
136 Local government election may be disputed under this part . . . . 114
137 Who may dispute an election . . . . . . . . . . . . . . . . . . . . . . . . . . . . 114
138 Requirements for an application to be effective . . . . . . . . . . . . . . 115
139 Copies of application to be given to elected candidate and
electoral commission . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 115
140 Application to court for order relating to documents etc. . . . . . . . 116
141 Parties to application . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 116
142 How application is to be dealt with by the court . . . . . . . . . . . . . . 116
143 Application for dismissal of application disputing election . . . . . . 117
144 Powers of the court. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 117
145 Restrictions on particular orders . . . . . . . . . . . . . . . . . . . . . . . . . 118
146 Restriction on particular evidence and inquiries. . . . . . . . . . . . . . 119
147 Copy of final court orders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 119
148 Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 119
149 Decisions and orders to be final . . . . . . . . . . . . . . . . . . . . . . . . . . 120
150 Right of electoral commission and returning officer to have
access to documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 120
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Division 2 Appeals
151 Appeal to Court of Appeal on question of law . . . . . . . . . . . . . . . 120
152 Time for appealing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 120
153 Electoral commission is a party to appeal . . . . . . . . . . . . . . . . . . 121
154 How appeal is dealt with by Court of Appeal . . . . . . . . . . . . . . . . 121
155 Application for dismissal of appeal . . . . . . . . . . . . . . . . . . . . . . . . 121
156 Copy of final court orders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 121
157 Right of electoral commission and returning officer to have
access to documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 122
Part 8 Legal provisions
158 Decisions not subject to appeal . . . . . . . . . . . . . . . . . . . . . . . . . . 122
159 Postal vote presumed valid until contrary proved . . . . . . . . . . . . . 123
160 Evidentiary value of list under s 164. . . . . . . . . . . . . . . . . . . . . . . 123
161 Ballot papers as evidence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 123
162 Allegations of false or misleading information or document . . . . . 123
163 Evidentiary provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 123
Part 9 Enforcement
Division 1 Failure to vote
164 List of electors failing to vote . . . . . . . . . . . . . . . . . . . . . . . . . . . . 124
165 Notice about failure to vote. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 124
166 Payments for failure to vote . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 126
167 Recording response to notice. . . . . . . . . . . . . . . . . . . . . . . . . . . . 126
168 Failure to vote . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 127
Division 2 Corrupt and improper practices affecting local government
elections
169 False or misleading information . . . . . . . . . . . . . . . . . . . . . . . . . . 127
170 Bribery . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 128
171 Assisting illegal payments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 128
172 Improperly influencing electoral officers . . . . . . . . . . . . . . . . . . . . 129
173 Obstructing electors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 129
174 Obstructing electoral officers etc. . . . . . . . . . . . . . . . . . . . . . . . . . 129
175 Forged electoral papers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 130
176 Wilful neglect etc. of electoral officers . . . . . . . . . . . . . . . . . . . . . 130
Division 3 Offences relating to electoral advertising
177 Author of election material must be named . . . . . . . . . . . . . . . . . 130
178 Distribution of how-to-vote cards . . . . . . . . . . . . . . . . . . . . . . . . . 131
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179 Giving of how-to-vote cards to returning officer . . . . . . . . . . . . . . 133
180 Unauthorised how-to-vote cards. . . . . . . . . . . . . . . . . . . . . . . . . . 134
181 Headline to electoral advertisements . . . . . . . . . . . . . . . . . . . . . . 135
182 Misleading voters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 135
183 Offence for group of candidates to advertise or fundraise if
particular requirements not complied with . . . . . . . . . . . . . . . . . . 136
Division 4 Offences relating to voting
184 Leave to vote . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 137
185 Canvassing in or near polling booths . . . . . . . . . . . . . . . . . . . . . . 138
186 Influencing voting by violence or intimidation . . . . . . . . . . . . . . . . 139
187 Party badges not to be worn in polling booths . . . . . . . . . . . . . . . 139
188 Displaying political statements around polling booths . . . . . . . . . 139
189 Voting if not entitled . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 140
190 Offences about ballot papers . . . . . . . . . . . . . . . . . . . . . . . . . . . . 140
191 Failure to post, fax or deliver documents for someone else . . . . . 141
192 Secrecy of voting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 141
193 Breaking seals on parcels . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 142
194 Duty of witness in signing declaration envelopes . . . . . . . . . . . . . 142
Division 5 Offences relating to electoral funding and financial
disclosure
195 Offences about returns. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 143
196 Records to be kept . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 144
197 Obtaining information for returns . . . . . . . . . . . . . . . . . . . . . . . . . 144
198 Further information for incomplete returns . . . . . . . . . . . . . . . . . . 145
Division 6 Attempts
199 Attempts to commit offences . . . . . . . . . . . . . . . . . . . . . . . . . . . . 145
Division 7 Injunctions
200 Injunctions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 146
Part 10 Miscellaneous
201 Designated election offences and application of Criminal Code . 147
202 Local governments responsible for expenditure for
conducting local government elections . . . . . . . . . . . . . . . . . . . . 148
203 Leave to local government employee to contest local
government election . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 148
204 Inspection of documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 149
205 Persons serving a sentence of imprisonment . . . . . . . . . . . . . . . 149
206 Office of returning officer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 149
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207 Approved forms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 150
208 Regulation-making power. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 150
Part 11 Transitional provisions
209 Transitional regulation-making power . . . . . . . . . . . . . . . . . . . . . . 150
Part 12 Amendments of Acts and a regulation
Division 1 Amendment of this Act
210 Act amended . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 151
211 Amendment of long title . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 151
Division 2 Amendment of Animal Management (Cats and Dogs) Act
2008
212 Act amended . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 152
213 Amendment of s 103 (Cost of regulated dog enclosure--dividing
fence) ........................................... 152
Division 3 Amendments of Building Act 1975 relating to pool barriers
214 Act amended . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 153
215 Amendment of s 231B (What is a regulated pool) . . . . . . . . . . . . 153
216 Replacement of s 245U (Apportioning cost of constructing etc.
dividing fence) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 154
245U Interference with barriers for regulated pools . . . . . . . 154
217 Renumbering of s 246 (When particular local law has no force
or effect for regulated pool) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 154
218 Insertion of new pt 2A. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 154
Part 2A Neighbours' rights and responsibilities for
particular dividing fences
Division 1 Introduction
245X Overview . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 155
Division 2 Interpretation
245XA Definitions for pt 2A . . . . . . . . . . . . . . . . . . . . . . . . . . 155
Division 3 Rights and responsibilities of pool owners and
their neighbours for particular dividing fences
245XB Right to construct pool barrier along common
boundary .............................. 157
245XC Walls on common boundary . . . . . . . . . . . . . . . . . . . . 158
245XD Right to alter or replace existing dividing fence for the
purpose of a pool barrier . . . . . . . . . . . . . . . . . . . . . . 158
245XE Right to construct part of the barrier for 2
neighbouring pools along the common boundary or
alter or replace existing fence. . . . . . . . . . . . . . . . . . . 160
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245XF Limited right of neighbour to alter or replace part of
pool barrier along a common boundary . . . . . . . . . . . 160
245XG Right to enter adjoining land to carry out fencing
work ................................ 162
245XH Apportioning cost of constructing etc. dividing fence
forming part of a pool barrier . . . . . . . . . . . . . . . . . . . 162
245XI Attaching things to a dividing fence forming part of a
pool barrier . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 164
245XJ Negligent or deliberate act or omission . . . . . . . . . . . 164
245XK Urgent fencing work . . . . . . . . . . . . . . . . . . . . . . . . . . 165
Division 4 Process for obtaining contribution and
resolving disputes
Subdivision 1 Introduction
245XL Overview . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 166
Subdivision 2 Notices
245XM Notice of proposed fencing work . . . . . . . . . . . . . . . . 166
245XN Notice to contribute for urgent fencing work . . . . . . . . 167
Subdivision 3 Resolving disputes
245XO Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 168
245XP Representation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 169
245XQ Orders about carrying out fencing work . . . . . . . . . . . 169
245XR Matters for QCAT consideration . . . . . . . . . . . . . . . . . 170
245XS Application for order in absence of adjoining owner. . 171
Division 5 Process for dealing with unauthorised fencing
work
245XT Unauthorised fencing work. . . . . . . . . . . . . . . . . . . . . 172
245XU Application before unauthorised fencing work . . . . . . 172
245XV Application after unauthorised fencing work. . . . . . . . 173
Division 6 Process if common boundary not agreed
245XW Process if common boundary not agreed. . . . . . . . . . 173
Division 7 General
245XX Measurement of the height of a dividing fence or
pool barrier .............................. 175
245XY Substantial compliance is adequate. . . . . . . . . . . . . . 175
245XZ Giving documents. . . . . . . . . . . . . . . . . . . . . . . . . . . . 175
246 Descriptions in notice . . . . . . . . . . . . . . . . . . . . . . . . . 176
219 Amendment of s 246AB (Nonconformity notice) . . . . . . . . . . . . . 176
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220 Amendment of s 246ATJ (Requirement to obtain pool safety
certificate for regulated pool that is not a shared pool) . . . . . . . . 177
221 Amendment of s 246ATK (Requirement to obtain pool safety
certificate for regulated pool that is a shared pool) . . . . . . . . . . . 177
222 Amendment of sch 2 (Dictionary) . . . . . . . . . . . . . . . . . . . . . . . . . 178
Division 4 Amendment of Building Act 1975 relating to residential care
buildings
223 Act amended . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 179
224 Amendment of s 3 (Simplified outline of main provisions of Act) . 179
225 Amendment of s 5 (What is building work) . . . . . . . . . . . . . . . . . . 179
226 Amendment of s 30 (Relevant laws and other documents for
assessment of building work) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 179
227 Amendment of s 63 (Restriction on granting building
development application for budget accommodation building) . . . 180
228 Insertion of new s 63A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 180
63A Restriction on granting building development
approval for residential care building . . . . . . . . . . . . . 180
229 Amendment of s 81 (Building development approval for
particular alterations may require existing building or structure to
comply with building assessment provisions). . . . . . . . . . . . . . . . 181
230 Amendment of s 103 (Certificate requirements). . . . . . . . . . . . . . 181
231 Amendment of s 108A (Owner's obligations about access to
certificate of classification) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 182
232 Insertion of new ch 7A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 182
Chapter 7A Fire safety for residential care buildings built,
approved or applied for, before 1 June 2007
Part 1 Application of chapter 7A
231AA Application of ch 7A . . . . . . . . . . . . . . . . . . . . . . . . . . 182
Part 2 Interpretation
231AB Definitions for ch 7A . . . . . . . . . . . . . . . . . . . . . . . . . . 183
231AC What is a residential care building (or RCB). . . . . . . . 184
231AD What are the assessment categories for RCBs . . . . . 184
Part 3 Fire safety standard (RCB)
231AE What is the fire safety standard (RCB) . . . . . . . . . . . . 185
Part 3A RCB assessors
231AF Who is an RCB assessor . . . . . . . . . . . . . . . . . . . . . . 186
231AG Chief executive may approve public service
employees to assess RCBs . . . . . . . . . . . . . . . . . . . . 186
Part 4 Assessment of residential care buildings
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231AH Owner must have RCB assessed for assessment
category and compliance with fire safety standard
(RCB) ................................. 186
231AI RCB assessment reports . . . . . . . . . . . . . . . . . . . . . . 187
231AJ Further assessment by RCB assessor. . . . . . . . . . . . 188
231AK When owner must obtain fire safety (RCB)
compliance certificate or certificate or classification . 189
231AL Approval of later day for obtaining fire safety (RCB)
compliance certificate or certificate of classification. . 190
231AM Owner and operator must ensure RCB continues to
comply with fire safety standard (RCB) . . . . . . . . . . . 191
Part 5 General
231AN General obligations of operator of RCB . . . . . . . . . . . 191
231AO Owner must give RCB assessment report to chief
executive and local government . . . . . . . . . . . . . . . . . 192
231AP Owner must give fire safety (RCB) compliance
certificate to chief executive and local government . . 192
231AQ Obligations about access to fire safety (RCB)
compliance certificate. . . . . . . . . . . . . . . . . . . . . . . . . 193
233 Amendment of s 231A (Definitions for ch 8). . . . . . . . . . . . . . . . . 193
234 Amendment of s 256 (Prosecution of offences) . . . . . . . . . . . . . . 193
235 Replacement of sch 1 (The QDC on 15 April 2010). . . . . . . . . . . 194
Schedule 1 The QDC on 14 June 2011
236 Amendment of sch 2 (Dictionary) . . . . . . . . . . . . . . . . . . . . . . . . . 197
Division 5 Amendment of City of Brisbane Act 2010
237 Act amended . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 198
238 Amendment of s 13 (Who the council is constituted by). . . . . . . . 198
239 Amendment of s 39 (Election advertising) . . . . . . . . . . . . . . . . . . 198
240 Insertion of new ch 3, pt 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 198
Part 5 Caretaker period arrangements
92A Caretaker period. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 199
92B Prohibition on major policy decision in caretaker
period ................................ 199
92C Invalidity of major policy decision in caretaker period
without approval . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 199
92D Prohibition on election material in caretaker period 200
241 Amendment of s 164 (Filling a vacancy in the office of mayor) . . 200
242 Amendment of s 166 (Filling a vacancy in the office of another
councillor) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 201
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243 Omission of s 263 (Transitional provisions for elections) . . . . . . . 201
244 Amendment of schedule (Dictionary) . . . . . . . . . . . . . . . . . . . . . . 201
Division 6 Amendment of Criminal Code
245 Code amended. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 202
246 Amendment of ch 14, div 2, hdg (Legislative Assembly and
Brisbane City Council elections and referendums). . . . . . . . . . . . 202
247 Amendment of s 98A (Reference to election or referendum) . . . . 202
Division 7 Amendment of Electoral Act 1992
248 Act amended . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 202
249 Amendment of s 30 (Electoral registrars) . . . . . . . . . . . . . . . . . . . 202
250 Amendment of s 137 (Supreme Court to be Court of Disputed
Returns) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 203
Division 8 Amendment of the Information Privacy Act 2009
251 Act amended . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 203
252 Amendment of s 126 (Disciplinary action) . . . . . . . . . . . . . . . . . . 203
Division 9 Amendment of Local Government Act 2009
253 Act amended . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 203
254 Amendment of s 36 (Election advertising) . . . . . . . . . . . . . . . . . . 204
255 Insertion of new s 85A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 204
85A Trust change decisions if no community forum. . . . . . 204
256 Amendment of s 87 (Community forums). . . . . . . . . . . . . . . . . . . 205
257 Amendment of s 88 (Members of a community forum) . . . . . . . . 205
258 Amendment of s 89 (Payments to elected members of a
community forum). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 206
259 Omission of s 90 (Convenors for a community forum) . . . . . . . . . 206
260 Insertion of new ch 3, pt 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 206
Part 5 Caretaker period arrangements
90A Caretaker period. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 206
90B Prohibition on major policy decision in caretaker
period ................................ 207
90C Invalidity of major policy decision in caretaker period
without approval . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 207
90D Prohibition on election material in caretaker period 208
261 Insertion of new s 156A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 208
156A Disqualification about residence. . . . . . . . . . . . . . . . . 208
262 Insertion of new s 160A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 208
160A Extension of term of councillors elected at fresh
elections .............................. 208
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263 Amendment of s 163 (When a vacancy in an office must be
filled) ......................................... 209
264 Amendment of s 166 (Filling a vacancy in the office of another
councillor) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 209
265 Omission of s 284 (Continuation of electoral and related
provisions) ...................................... 209
266 Replacement of ch 9, hdg (Transitional provision for Revenue
and Other Legislation Amendment Act 2011) . . . . . . . . . . . . . . . 209
267 Insertion of new ch 9, pt 1, hdg . . . . . . . . . . . . . . . . . . . . . . . . . . 210
268 Omission of ch 10, hdg (Transitional provision for Sustainable
Planning (Housing Affordability and Infrastructure Charges
Reform) Amendment Act 2011) . . . . . . . . . . . . . . . . . . . . . . . . . . 210
269 Insertion of new ch 9, pt 2, hdg . . . . . . . . . . . . . . . . . . . . . . . . . . 210
270 Omission of sch 2 (Local government elections) . . . . . . . . . . . . . 210
271 Amendment of sch 4 (Dictionary) . . . . . . . . . . . . . . . . . . . . . . . . . 210
Division 10 Amendment of Mixed Use Development Act 1993
272 Act amended . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 211
273 Amendment of s 3 (Definitions) . . . . . . . . . . . . . . . . . . . . . . . . . . 212
274 Insertion of new s 4A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 215
4A References to standard module . . . . . . . . . . . . . . . . . 215
275 Amendment of s 166 (Definitions) . . . . . . . . . . . . . . . . . . . . . . . . 216
276 Amendment of s 169 (Members' nominees) . . . . . . . . . . . . . . . . 216
277 Amendment of s 172 (Meetings of bodies corporate) . . . . . . . . . 217
278 Amendment of s 177 (Duties of bodies corporate). . . . . . . . . . . . 217
279 Amendment of s 185 (Constitution of executive committee) . . . . 218
280 Insertion of new s 185A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 218
185A Code of conduct for voting members of executive
committee ........................... 218
281 Amendment of s 186 (Vacation of office of member of executive
committee) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 219
282 Insertion of new s 188A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 219
188A Conflict of interest of executive committee member
[SM, s 53] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 219
283 Insertion of new pt 9, divs 6-8 and pt 9A . . . . . . . . . . . . . . . . . . . 220
Division 6 Proxies for general meetings of bodies
corporate
Subdivision 1 Representing precinct bodies corporate at
meetings of community bodies corporate
201A Application of sdiv 1 . . . . . . . . . . . . . . . . . . . . . . . . . . 220
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201B Appointment [SM, s 107] . . . . . . . . . . . . . . . . . . . . . . 220
201C Use of proxy [SM, s 109] . . . . . . . . . . . . . . . . . . . . . . 221
201D Special provisions about proxy use [SM, s 110]. . . . . 222
201E Offence [SM, s 111] . . . . . . . . . . . . . . . . . . . . . . . . . . 222
Subdivision 2 Meetings of precinct bodies corporate
201F Application of sdiv 2 . . . . . . . . . . . . . . . . . . . . . . . . . . 223
201G Appointment [SM, s 107] . . . . . . . . . . . . . . . . . . . . . . 223
201H Use of proxy [SM, s 109] . . . . . . . . . . . . . . . . . . . . . . 224
201I Special provisions about proxy use [SM, s 110]. . . . . 225
201J Offence [SM, s 111] . . . . . . . . . . . . . . . . . . . . . . . . . . 225
Subdivision 3 Matters applying to proxies for meetings of
community and precinct bodies corporate
201K Form of proxy [SM, s 108] . . . . . . . . . . . . . . . . . . . . . 226
201L How proxy may be exercised [SM, s 109]. . . . . . . . . . 226
Division 7 Accounts and audit for precinct bodies
corporate
201M Application of div 7 . . . . . . . . . . . . . . . . . . . . . . . . . . . 227
201N Accounts [SM, s 154] . . . . . . . . . . . . . . . . . . . . . . . . . 227
201O Audit [SM, s 155] . . . . . . . . . . . . . . . . . . . . . . . . . . . . 228
Division 8 Removal from office of voting members of
executive committee for breach of code of
conduct
201P Notice for breach of code of conduct [SM, s 34]. . . . . 229
201Q Removal of voting member at general meeting
[SM, s 35] ............................ 230
Part 9A Conduct of body corporate managers, service
contractors and letting agents
Division 1 Preliminary
201R Definitions for pt 9A . . . . . . . . . . . . . . . . . . . . . . . . . . 231
201S Meaning of financier for a letting agent's contract . . . 233
201T Meaning of letting agent and letting agent business . 233
201U Meaning of service contractor for site or precinct. . . . 234
Division 2 Codes of conduct
201V Code of conduct for body corporate manager and
caretaking service contractor . . . . . . . . . . . . . . . . . . . 235
201W Code of conduct for letting agent . . . . . . . . . . . . . . . . 235
Division 3 Required transfer of management rights for
contravention of code of conduct
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Subdivision 1 Preliminary
201X Application of div 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . 236
201Y Effect of div 3 on other provisions . . . . . . . . . . . . . . . 236
Subdivision 2 Transfer of management rights
201Z Code contravention notice . . . . . . . . . . . . . . . . . . . . . 236
201ZA Grounds for requiring transfer . . . . . . . . . . . . . . . . . . 237
201ZB Requirement for transfer. . . . . . . . . . . . . . . . . . . . . . . 238
201ZC Transfer--letting agent's choice of transferee. . . . . . . 238
201ZD Giving financier copy of transfer notice . . . . . . . . . . . 239
201ZE Transfer--body corporate's choice of transferee . . . . 239
201ZF Terms of service contract on transfer . . . . . . . . . . . . . 240
Subdivision 3 Replacement of letting agent authorisation and
service contract
201ZG Replacement of letting agent authorisation and
service contract in particular circumstances . . . . . . . 241
Subdivision 4 Reviewing terms of letting agent's service
contract
201ZH Reviewing terms of service contract. . . . . . . . . . . . . . 242
201ZI Review criteria . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 243
201ZJ Giving copy of review advice to letting agent and
prospective buyer of management rights . . . . . . . . . . 244
Subdivision 5 Disputes about transfer of management rights
201ZK QCAT jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . 244
Division 4 Disputes about contractual matters
201ZL QCAT jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . 244
Division 5 Termination of appointment, engagement or
authorisation
201ZM Termination for failure to comply with remedial
action notice [SM, s 131] . . . . . . . . . . . . . . . . . . . . . . 245
284 Amendment of s 202 (Community development control by-laws) 248
285 Amendment of s 204 (Application of community development
control by-laws and community activities by-laws) . . . . . . . . . . . . 248
286 Amendment of s 205 (Minor noncompliance with community
development by-laws or community activities by-laws) . . . . . . . . 248
287 Amendment of s 208 (Precinct development control by-laws) . . . 249
288 Amendment of s 210 (Application of precinct development
control and precinct activities by-laws) . . . . . . . . . . . . . . . . . . . . . 249
289 Amendment of s 211 (Minor noncompliance with precinct
development by-laws or precinct activities by-laws) . . . . . . . . . . . 249
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290 Insertion of new pt 11, div 1 hdg . . . . . . . . . . . . . . . . . . . . . . . . . 250
291 Replacement of s 214A (Dealing with disputes). . . . . . . . . . . . . . 250
Division 2 Resolution of particular disputes
214A Dealing with particular disputes under Building
Units and Group Titles Act 1980 . . . . . . . . . . . . . . . . 250
214B Dealing with matter relating to community
development control by-law ................. 250
214C Dealing with matter relating to precinct development
control by-law ............................ 251
214D Internal dispute resolution processes to be used
before application . . . . . . . . . . . . . . . . . . . . . . . . . . . . 252
Division 3 Other matters
214E Associates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 253
292 Insertion of new pt 14 and schs 1-5. . . . . . . . . . . . . . . . . . . . . . . 254
Part 14 Transitional provisions for Local Government
Electoral Act 2011
Division 1 Preliminary
224 Definitions for pt 14. . . . . . . . . . . . . . . . . . . . . . . . . . . 255
Division 2 Bodies corporate
225 Deferred application of particular provisions . . . . . . . 255
226 Application of code of conduct for existing voting
members of executive committees . . . . . . . . . . . . . . . 255
227 Auditing accounts for first annual general meeting
after evaluation day . . . . . . . . . . . . . . . . . . . . . . . . . . 256
Division 3 Body corporate managers, service contractors
and letting agents
228 Deferred application of particular provisions . . . . . . . 256
229 Application of code of conduct for existing body
corporate managers and caretaking service
contractors ............................. 256
230 Application of code of conduct for existing letting
agents .............................. 257
Schedule 1 Election of executive committee members of
bodies corporate
1 Definitions for sch 1 . . . . . . . . . . . . . . . . . . . . . . . . . . 258
2 Election of members of executive committee
[SM, s 15] ........................... 259
3 Nomination procedures for election of executive
committee other than at first annual general meeting
[SM, s 16] ............................. 259
4 Requirements for nominations [SM, s 18] . . . . . . . . . 260
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5 Conduct of elections for executive committee by
secret ballot [SM, s 21]. . . . . . . . . . . . . . . . . . . . . . . . 261
6 Conduct of elections for executive committee by
open ballot [SM, s 22]. . . . . . . . . . . . . . . . . . . . . . . . . 264
7 Election of ordinary members of executive
committee [SM, s 23] . . . . . . . . . . . . . . . . . . . . . . . . . 266
8 Conduct of ballot--general requirements [SM, s 24] . 266
9 Conduct of ballot--scrutiny of votes [SM, s 25] . . . . . 267
10 Conduct of ballot--deciding executive member
positions [SM, s 26] . . . . . . . . . . . . . . . . . . . . . . . . . . 268
11 Conduct of ballot--deciding ordinary member
positions [SM, s 27] . . . . . . . . . . . . . . . . . . . . . . . . . . 269
12 Conduct of ballot--declaration of voting results
[SM, s 28] ............................. 271
Schedule 2 Code of conduct for voting members of
executive committees
1 Commitment to acquiring understanding of Act,
including this code . . . . . . . . . . . . . . . . . . . . . . . . . . . 272
2 Honesty, fairness and confidentiality . . . . . . . . . . . . . 272
3 Acting in best interests of body corporate and
persons with estate or interest in lots . . . . . . . . . . . . . 273
4 Complying with Act and this code . . . . . . . . . . . . . . . 273
5 Conflict of interest. . . . . . . . . . . . . . . . . . . . . . . . . . . . 273
Schedule 3 Code of conduct for body corporate managers
and caretaking service contractors
1 Knowledge of Act, including code . . . . . . . . . . . . . . . 274
2 Honesty, fairness and professionalism . . . . . . . . . . . . 274
3 Skill, care and diligence . . . . . . . . . . . . . . . . . . . . . . . 274
4 Acting in body corporate's best interests . . . . . . . . . . 275
5 Keeping body corporate informed of developments . . 275
6 Ensuring employees comply with Act and code . . . . . 275
7 Fraudulent or misleading conduct . . . . . . . . . . . . . . . 275
8 Unconscionable conduct . . . . . . . . . . . . . . . . . . . . . . 275
9 Conflict of duty or interest. . . . . . . . . . . . . . . . . . . . . . 276
10 Goods and services to be supplied at competitive
prices ............................. 276
11 Body corporate manager to demonstrate keeping of
particular records . . . . . . . . . . . . . . . . . . . . . . . . . . . . 276
Schedule 4 Code of conduct for letting agents
1 Honesty, fairness and professionalism . . . . . . . . . . . . 277
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Local Government Electoral Bill 2011
Contents
2 Skill, care and diligence . . . . . . . . . . . . . . . . . . . . . . . 277
3 Acting in body corporate's and individual lot owner's
best interests . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 277
4 Ensuring employees comply with Act and code . . . . . 277
5 Fraudulent or misleading conduct . . . . . . . . . . . . . . . 278
6 Unconscionable conduct . . . . . . . . . . . . . . . . . . . . . . 278
7 Nuisance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 278
8 Goods and services to be supplied at competitive
prices ............................. 278
Schedule 5 Dictionary
Division 11 Amendment of Neighbourhood Disputes Resolution Act
2011
293 Act amended . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 279
294 Amendment of s 9 (Non-application of provisions to barrier of
regulated pool) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 279
Division 12 Amendment of Public Trustee Act 1978
295 Act amended . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 280
296 Amendment of s 17A (Priority etc. of fees and charges) . . . . . . . 280
297 Amendment of s 98 (Definitions) . . . . . . . . . . . . . . . . . . . . . . . . . 280
298 Amendment of s 99A (Public trustee's register of unclaimed
moneys) ........................................ 280
Division 13 Amendment of Queensland Civil and Administrative
Tribunal Act 2009
299 Act amended . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 281
300 Amendment of s 12 (When jurisdiction for minor civil dispute
exercised) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 281
301 Amendment of s 13 (Deciding minor civil dispute generally) . . . . 282
302 Amendment of sch 3 (Dictionary) . . . . . . . . . . . . . . . . . . . . . . . . . 282
Division 14 Amendment of Sanctuary Cove Resort Act 1985
303 Act amended . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 282
304 Replacement of s 4B (Meaning of proposed use plan of the site
or adjacent site) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 283
4B Meaning of proposed use plan of the site and
adjacent site ............................. 283
305 Amendment of s 7 (Proposed use plan of the site) . . . . . . . . . . . 284
306 Insertion of new s 8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 284
8 Amendment of proposed use plan for minor
boundary variation . . . . . . . . . . . . . . . . . . . . . . . . . . . 284
307 Amendment of s 10 (Initial subdivision within the site). . . . . . . . . 285
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Local Government Electoral Bill 2011
Contents
308 Amendment of s 12C (Proposed use plan of the adjacent site) . . 286
309 Insertion of new s 12D . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 286
12D Amendment of proposed use plan for minor
boundary variation . . . . . . . . . . . . . . . . . . . . . . . . . . . 286
310 Amendment of s 12F (Initial subdivision within the adjacent site) 287
311 Amendment of s 12I (Amendment applications) . . . . . . . . . . . . . 287
312 Amendment of s 12P (Approval of amendment of relevant plan) . 288
313 Amendment of s 15A (Plan of survey where variation of
boundary approved) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 288
314 Amendment of s 114 (References to proposed use plan of site) . 288
315 Amendment of s 115 (References to proposed use plan of
adjacent site) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 289
316 Amendment of sch 9 (Dictionary) . . . . . . . . . . . . . . . . . . . . . . . . . 289
Division 15 Amendment of State Penalties Enforcement Act 1999
317 Act amended . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 289
318 Amendment of s 63 (Issue of enforcement warrant) . . . . . . . . . . 289
319 Amendment of s 73J (Accountability for, and distribution of,
money received) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 291
320 Insertion of new pt 10, div 7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 292
Division 7 Transitional provision for Local Government
Electoral Act 2011
183 Effect of regulation amendment . . . . . . . . . . . . . . . . . 292
Division 16 Amendment of State Penalties Enforcement Regulation
2000
321 Regulation amended . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 292
322 Insertion of new s 6A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 292
6A Administering authority for Local Government
Electoral Act 2011 . . . . . . . . . . . . . . . . . . . . . . . . . . . 292
323 Amendment of sch 1 (Consumer related legislation) . . . . . . . . . . 293
324 Amendment of sch 5 (Other legislation) . . . . . . . . . . . . . . . . . . . . 293
Schedule Dictionary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 294
Page 20
2011
A Bill
for
An Act relating to local government elections, to amend this
Act, to amend the Animal Management (Cats and Dogs) Act
2008, the Building Act 1975, the City of Brisbane Act 2010, the
Local Government Act 2009, the Mixed Use Development Act
1993, the Neighbourhood Disputes Resolution Act 2011, the
Public Trustee Act1978, the Queensland Civil and
Administrative Tribunal Act 2009, the Sanctuary Cove Resort
Act 1985, the State Penalties Enforcement Act 1999 and the
State Penalties Enforcement Regulation 2000 for particular
purposes and to make consequential and minor amendments
to the Electoral Act 1992, the Criminal Code and the
Information Privacy Act 2009
Local Government Electoral Bill 2011
Part 1 Preliminary
[s 1]
The Parliament of Queensland enacts-- 1
Part 1 Preliminary 2
1 Short title 3
This Act may be cited as the Local Government Electoral Act 4
2011. 5
2 Commencement 6
(1) Part 12, division 4, other than sections 224, 228 and 236, 7
commences on 1 September 2011. 8
(2) The following provisions commence on a day to be fixed by 9
proclamation-- 10
· part 12, divisions 2, 3, 10, 11, 13 and 15 11
· sections 296 and 323. 12
3 Purpose of this Act 13
The purpose of this Act is to ensure the transparent conduct of 14
elections of councillors of Queensland's local governments. 15
4 Definitions 16
The dictionary in the schedule defines particular words used 17
in this Act. 18
5 Particular references in this Act 19
In a provision of this Act about an election-- 20
(a) a reference to the returning officer is a reference to the 21
returning officer for the election; and 22
Page 22
Local Government Electoral Bill 2011
Part 1 Preliminary
[s 6]
(b) a reference to an assistant returning officer is a reference 1
to an assistant returning officer for the election; and 2
(c) a reference to an issuing officer is a reference to an 3
issuing officer for the election; and 4
(d) a reference to polling day is a reference to polling day 5
for the election; and 6
(e) a reference to the nomination day is a reference to the 7
nomination day for the election; and 8
(f) a reference to a ballot paper is a reference to a ballot 9
paper for the election; and 10
(g) a reference to a candidate is a reference to a candidate 11
for the election; and 12
(h) a reference to a nominee is a reference to a nominee for 13
the election; and 14
(i) a reference to the mayor or another councillor is a 15
reference to the mayor or other councillor of the local 16
government for which the election is held; and 17
(j) a reference to a local government is a reference to the 18
local government for which the election is held. 19
6 References to divisions includes wards 20
(1) In a provision of this Act, a reference to a division of a local 21
government area includes a reference to a ward of Brisbane. 22
(2) In this section-- 23
ward, of Brisbane, means one of 26 divisions of the local 24
government area of the Brisbane City Council established for 25
the election of councillors or a councillor. 26
7 Meaning of conclusion of local government election 27
The conclusion of the election of a councillor is-- 28
(a) if the councillor is elected at an election of all 29
councillors of the local government--the day on which 30
Page 23
Local Government Electoral Bill 2011
Part 2 Administration
[s 8]
the last declaration of a poll conducted in the election is 1
displayed at the office of the returning officer as 2
required by this Act; or 3
(b) if the councillor is elected at a by-election and-- 4
(i) a poll is conducted--the day on which the 5
declaration of the poll is displayed at the office of 6
the returning officer as required by this Act; or 7
(ii) a poll is not conducted--the day after the 8
nomination day for the by-election; or 9
(c) if, because the number of candidates nominated for 10
election is the same or less than the number of 11
councillors to be elected, the councillor is elected (other 12
than at a by-election) and-- 13
(i) 1 or more polls are conducted in the local 14
government area--the day on which the last 15
declaration of a poll conducted in the local 16
government area is displayed at the office of the 17
returning officer as required by this Act; or 18
(ii) no poll is conducted in the local government 19
area--6p.m. on the day that a poll would otherwise 20
have been required to be conducted under this Act. 21
Part 2 Administration 22
Division 1 Electoral commission 23
8 Additional functions and powers of electoral commission 24
For the purpose of this Act, the functions of the electoral 25
commission include conducting quadrennial elections, 26
by-elections or fresh elections for local governments. 27
Page 24
Local Government Electoral Bill 2011
Part 2 Administration
[s 9]
Division 2 Electoral officers for local 1
government elections 2
9 Returning officers 3
(1) The returning officer is responsible for the proper conduct of 4
an election. 5
(2) The electoral commission may appoint a person as the 6
returning officer for an election unless the person is-- 7
(a) a minor; or 8
(b) a member of a political party; or 9
(c) the chief executive officer of the local government for 10
which the election is to be held. 11
(3) However, if the chief executive officer is the only person with 12
experience conducting elections who is reasonably available 13
to be appointed as the returning officer, the chief executive 14
officer may be appointed as the returning officer if the officer 15
is not a member of a political party. 16
(4) A returning officer must comply with a direction given by the 17
commission if it would be consistent with this Act to do so. 18
10 Assistant returning officers 19
(1) An assistant returning officer is responsible for helping the 20
returning officer in performing the returning officer's 21
responsibilities under this Act. 22
(2) The electoral commission may appoint a person as an 23
assistant returning officer for an election unless the person 24
is-- 25
(a) a minor; or 26
(b) a member of a political party. 27
(3) The electoral commission may appoint 1 or more assistant 28
returning officers for an election. 29
Page 25
Local Government Electoral Bill 2011
Part 2 Administration
[s 11]
11 Presiding officers 1
(1) A presiding officer at a polling booth is responsible for the 2
proper conduct of a poll at the polling booth and for carrying 3
out the other duties for an election that are required by the 4
returning officer. 5
(2) The returning officer-- 6
(a) may be presiding officer at a polling booth; and 7
(b) must appoint an adult as presiding officer at each polling 8
booth other than the booth at which the returning officer 9
is the presiding officer. 10
(3) If a person can not act as presiding officer at a polling booth, 11
the returning officer, or someone else with the returning 12
officer's approval, may appoint an adult as presiding officer at 13
the booth while the person can not act. 14
(4) An appointment under subsection (2) or (3) must be in the 15
approved form. 16
12 Issuing officers 17
An issuing officer is a member of the electoral commission's 18
staff who is responsible for-- 19
(a) giving ballot papers and declaration envelopes to 20
electors; and 21
(b) performing the other duties for an election that are 22
required by the returning officer. 23
13 Membership of a political party ends particular 24
appointments 25
(1) A person's appointment as a returning officer or assistant 26
returning officer ends if the person becomes a member of a 27
political party. 28
(2) Subsection (1) does not limit the ways in which a person's 29
appointment as a returning officer or assistant returning 30
officer may end. 31
Page 26
Local Government Electoral Bill 2011
Part 2 Administration
[s 14]
14 Obligation to notify of membership of a political party 1
A returning officer or assistant returning officer must 2
immediately notify the electoral commission if the officer 3
becomes a member of a political party, unless the person has a 4
reasonable excuse. 5
Maximum penalty--40 penalty units. 6
15 Returning officer may act through other officers 7
If-- 8
(a) the returning officer may, under this Act, do a thing; and 9
(b) the returning officer authorises an assistant returning 10
officer, presiding officer or issuing officer to do the 11
thing; and 12
(c) the assistant returning officer, presiding officer or 13
issuing officer does the thing; 14
the thing is taken to have been done by the returning officer. 15
Examples-- 16
1 For an election, if the returning officer authorises an assistant 17
returning officer to conduct the election in a division, and the 18
assistant returning officer does so, the returning officer is taken to 19
have conducted the election in the division. 20
2 For an election, if the returning officer authorises an assistant 21
returning officer to carry out the functions of the returning officer 22
under section 95, and the assistant returning officer carries out the 23
functions, the returning officer is taken to have carried out the 24
functions. 25
3 Under section 72, declaration envelopes are to be posted or given to 26
the returning officer. For an election, the returning officer could 27
authorise an issuing officer to receive declaration envelopes, to 28
remove the declaration envelopes containing the ballot papers from 29
the return address envelopes and place the declaration envelopes in 30
a ballot box. 31
Page 27
Local Government Electoral Bill 2011
Part 3 Voters rolls
[s 16]
16 Assistant returning officer may act through other officers 1
If-- 2
(a) an assistant returning officer may, under this Act, do a 3
thing; and 4
(b) the assistant returning officer authorises a presiding 5
officer or an issuing officer to do the thing; and 6
(c) the presiding officer or the issuing officer does the 7
thing; 8
the thing is taken to have been done by the assistant returning 9
officer. 10
Part 3 Voters rolls 11
17 Returning officer must compile voters roll 12
(1) The returning officer must compile a roll of persons entitled to 13
vote at an election (the voters roll). 14
(2) The voters roll must consist of the persons enrolled on an 15
electoral roll for an electoral district, or a part of an electoral 16
district, included-- 17
(a) for an election for all of a local government's area--in 18
the area; or 19
(b) for an election for a division of a local government's 20
area--in the division. 21
(3) An electoral registrar under the Electoral Act 1992 must give 22
the returning officer the assistance the officer reasonably 23
requires to compile a voters roll for an election. 24
18 Cut off day for compiling voters roll 25
(1) A voters roll for a quadrennial election must be compiled at 26
31 January in the year of the election. 27
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Local Government Electoral Bill 2011
Part 3 Voters rolls
[s 19]
(2) A voters roll for a by-election must be compiled at least 5 1
days, but not more than 7 days, after the publication in a 2
newspaper, under section 24(3), of notice of the day of the 3
by-election. 4
19 Requirements of voters roll 5
(1) A voters roll for an election must-- 6
(a) show the names of all persons entitled to vote at the 7
election; and 8
(b) be in the form of the electoral roll used for elections of 9
the Legislative Assembly. 10
(2) The returning officer must not include in a voters roll an 11
elector's address that, under the Electoral Act 1992, is 12
excluded from the publicly available part of an electoral roll. 13
20 Inspection of voters roll 14
(1) The electoral commission must ensure the most recent version 15
of all voters rolls is available for inspection by members of the 16
public at the commission's public office. 17
(2) The electoral commission may also make available, for 18
inspection by any person, a copy of the most recent version of 19
a voters roll at any place that the commission considers 20
appropriate. 21
21 Supply of voters roll to candidates 22
If a poll is to be conducted in an election, the returning officer 23
must give a copy of the voters roll to each candidate as soon as 24
practicable after the nomination day. 25
Page 29
Local Government Electoral Bill 2011
Part 4 Local government elections
[s 22]
Part 4 Local government elections 1
Division 1 Local government elections 2
22 Types of elections 3
(1) An election of the mayor of a local government is an election 4
for all of the local government's area. 5
(2) A quadrennial or fresh election for a councillor (other than the 6
mayor) of a local government is-- 7
(a) if the local government's area does not have 8
divisions--an election for all of the area; or 9
(b) if the local government's area has divisions--an election 10
for each division of the area. 11
(3) A by-election to fill a vacancy in the office of a councillor 12
(other than the mayor) of a local government is an election for 13
its area, or the division of its area, for which the councillor 14
was elected. 15
23 Date of quadrennial elections 16
(1) A quadrennial election must be held in, and every fourth year 17
after, 2012. 18
(2) A quadrennial election must be held on the last Saturday in 19
March. 20
(3) However, a regulation may fix a different day for a 21
quadrennial election for a particular year. 22
24 Date of by-elections 23
(1) A by-election to fill a vacancy in the office of a councillor is 24
to be held on the day fixed by the returning officer. 25
(2) The day fixed must be within 12 weeks after the vacancy 26
happens. 27
Page 30
Local Government Electoral Bill 2011
Part 4 Local government elections
[s 25]
(3) As soon as practicable after fixing the day for holding a 1
by-election, the returning officer must-- 2
(a) publish, in a newspaper circulating generally in the local 3
government area and in the other ways that the officer 4
may consider appropriate, notice of-- 5
(i) the day fixed; and 6
(ii) the cut-off day for the voters roll for the 7
by-election under section 18(2); and 8
(b) take the steps required by this Act for holding the 9
by-election. 10
Division 2 Candidates for local government 11
elections 12
Subdivision 1 Nominations of candidates 13
25 Calling for nominations 14
(1) The returning officer must publish notice of an election in a 15
newspaper circulating generally in the local government area, 16
or division of the local government area, for which the 17
election is to be held. 18
(2) The notice must-- 19
(a) be in the approved form; and 20
(b) state a day as the nomination day-- 21
(i) not less than 10, or more than 21, days after the 22
day of publication of the notice; and 23
(ii) not less than 21, or more than 42, days before the 24
day on which the election is to be held; and 25
(c) state the nominations must be given to the returning 26
officer; and 27
(d) invite nominations of candidates. 28
Page 31
Local Government Electoral Bill 2011
Part 4 Local government elections
[s 26]
(3) The place of nomination must be-- 1
(a) the office of the returning officer; or 2
(b) a place in the local government's area convenient 3
generally to persons in the area. 4
26 Who may be nominated 5
(1) A person may be nominated as a candidate, or for 6
appointment, as a councillor only if the person is qualified to 7
be a councillor under the-- 8
(a) for a councillor of the Brisbane City Council--City of 9
Brisbane Act 2010, section 152; or 10
(b) for a councillor of another local government--Local 11
Government Act 2009, section 152. 12
(2) However, a person who is a candidate for election as a 13
member of an Australian Parliament, can not be nominated for 14
election or appointment as a councillor until-- 15
(a) for an election under the Electoral Act 1992--the day 16
the electoral commission is notified, under section 17
131(1) of that Act, of the candidate elected for the 18
electoral district for which the person is a candidate; or 19
(b) for an election under the Commonwealth Electoral Act 20
1918 (Cwlth)-- 21
(i) the day the result of the election and the candidates 22
elected are declared under section 283 of that Act; 23
or 24
(ii) the day the candidate elected for the division for 25
which the person is a candidate is declared under 26
section 284 of that Act. 27
(3) To remove any doubt, it is declared that, a person is not 28
disqualified from being nominated as a candidate, or for 29
appointment, as a councillor only because the person is a 30
member of the Legislative Assembly or a local government 31
employee. 32
Page 32
Local Government Electoral Bill 2011
Part 4 Local government elections
[s 27]
Example-- 1
A person who is a member of the Legislative Assembly may nominate 2
as a candidate for election as a councillor but must resign on becoming a 3
candidate. 4
27 How and when nomination takes place 5
(1) A person who wishes to be a candidate in an election may 6
only be nominated by-- 7
(a) the registered officer of a registered political party that 8
has endorsed the person as a candidate for the election; 9
or 10
(b) at least 6 electors for the local government area, or 11
division of the local government area, for which the 12
election is to be held. 13
(2) A nomination must be-- 14
(a) in the approved form; and 15
(b) given to the returning officer after the nominations are 16
invited for the election but before noon on the 17
nomination day. 18
(3) A nomination is of no effect if section 39 is not complied with 19
for the nomination. 20
28 Grounds for deciding a person is not properly nominated 21
(1) The returning officer may decide that a person who has 22
changed his or her name is not properly nominated as a 23
candidate in an election because the nomination name-- 24
(a) is a party name; or 25
(b) so nearly resembles a party name that it is likely to be 26
confused with or mistaken for the party name; or 27
(c) includes the word `independent'; or 28
(d) is a public body name; or 29
Page 33
Local Government Electoral Bill 2011
Part 4 Local government elections
[s 28]
(e) so nearly resembles a public body name that it is likely 1
to be confused with or mistaken for the public body 2
name; or 3
(f) is obscene or offensive. 4
(2) The returning officer may also decide that a person who has 5
changed his or her name is not properly nominated as a 6
candidate in an election if the returning officer considers the 7
name could cause confusion. 8
Example of subsection (2)-- 9
If a person's name is `Informal', the returning officer may consider that 10
the name could cause confusion to electors. 11
(3) If the returning officer decides a person is not properly 12
nominated as a candidate in an election, the returning officer 13
must give the person a notice stating-- 14
(a) the decision; and 15
(b) the reasons for the decision; and 16
(c) the person's right to apply for an injunction. 17
Note-- 18
For a person's right to apply for an injunction, see section 200. 19
(4) In this section-- 20
nomination name means the name proposed by a candidate to 21
be used on a ballot paper as the candidate's name under 22
section 55(2). 23
parliamentary party means an organisation-- 24
(a) whose object or activity, or 1 of whose objects or 25
activities, is the promotion of the election to an 26
Australian parliament of a candidate or candidates 27
endorsed by it or by a body or organisation of which it 28
forms a part; and 29
(b) of which at least 1 member is a member of an Australian 30
parliament. 31
party name means the name, or an abbreviation or acronym of 32
the name of-- 33
Page 34
Local Government Electoral Bill 2011
Part 4 Local government elections
[s 29]
(a) a parliamentary party; or 1
(b) a political party; or 2
(c) an organisation or group whose object or activity, or 1 of 3
whose objects or activities, is the promotion of the 4
election of a candidate or candidates endorsed by it or 5
by a body or organisation of which it forms a part to-- 6
(i) an Australian parliament; or 7
(ii) an office of councillor of a local government. 8
public body name means the name, or an abbreviation or 9
acronym of the name, of a prominent public body. 10
29 Effect of multiple nominations 11
(1) A person can not, at the same time, be a candidate for election 12
as-- 13
(a) mayor of a local government and as another councillor 14
of the same local government; or 15
(b) a councillor of a local government for more than 1 16
division of the local government's area. 17
(2) If, at noon on the nomination day, a person is nominated as a 18
candidate in contravention of subsection (1), each of the 19
nominations is of no effect. 20
30 Withdrawal of consent to nomination 21
(1) A person nominated as a candidate in an election may 22
withdraw the person's agreement to the nomination by signed 23
notice given to the returning officer before noon on the 24
nomination day. 25
(2) If a person acts under subsection (1)-- 26
(a) the nomination is of no effect; and 27
(b) the person's deposit must be refunded to the person who 28
paid the deposit. 29
Page 35
Local Government Electoral Bill 2011
Part 4 Local government elections
[s 31]
31 Certification of nominations 1
(1) If the returning officer is satisfied a person has been properly 2
nominated for an election, the returning officer must-- 3
(a) certify the nomination in the approved form; and 4
(b) give a copy of the certificate to the person. 5
(2) The certificate must state the time, day and place proposed for 6
a draw, if necessary, for the order of listing of candidates' 7
names on the ballot paper. 8
(3) For subsection (1), a person is properly nominated for election 9
if-- 10
(a) sections 27 and 39 have been complied with, or have 11
been substantially complied with apart from a mere 12
formal defect or error in the nomination; and 13
(b) section 29 does not apply to the person's nomination; 14
and 15
(c) the nomination has not been withdrawn. 16
(4) Also, the returning officer is not obliged to look beyond-- 17
(a) the form of nomination and payment of the deposit; and 18
(b) the voters roll; and 19
(c) documentary evidence produced by the nominee or 20
nominator that at the time the voters roll is compiled for 21
the election-- 22
(i) the nominator is an elector for the election or the 23
registered officer of a registered political party; or 24
(ii) the nominee is, under the Electoral Act 1992, an 25
elector for an electoral district, or part of an 26
electoral district, included in the local 27
government's area. 28
(5) If a nomination is wrongly certified by the returning officer, 29
the certification, or the issue of a copy of the certificate, does 30
not validate the nomination. 31
Page 36
Local Government Electoral Bill 2011
Part 4 Local government elections
[s 32]
32 Announcement of nominations 1
(1) As soon as practicable after the returning officer has certified 2
the nomination of a person for an election under section 31, 3
the returning officer must display a copy of the nomination in 4
a conspicuous position at the office of the returning officer. 5
(2) The display of a copy of the nomination must-- 6
(a) start as soon as practicable after noon on the nomination 7
day; and 8
(b) continue until the conclusion of the election. 9
33 Death of candidate 10
If a person nominated as a candidate in an election dies before 11
noon on the nomination day-- 12
(a) the nomination is of no effect; and 13
(b) the person's deposit must be refunded to-- 14
(i) if the deposit was paid by someone other than the 15
person--the other person; or 16
(ii) otherwise--the person's personal representative. 17
34 Procedure if number of candidates not more than number 18
required 19
(1) If the number of candidates properly nominated for an 20
election is only equal to the number required to be elected-- 21
(a) the nominees are taken to have been elected; and 22
(b) the returning officer must, as soon as practicable after 23
the nomination day, publish a notice in the approved 24
form in a newspaper circulating generally in the local 25
government area, or division of the local government 26
area, for which the election was to be held, that the 27
nominees are taken to have been elected. 28
(2) If-- 29
(a) no-one is nominated as a candidate in an election; or 30
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(b) the number of candidates nominated is less than the 1
number required to be elected; 2
the Governor in Council may, by gazette notice, appoint as 3
councillors of the local government, the number of persons 4
necessary to constitute fully the local government. 5
(3) Each person appointed under subsection (2) must be qualified 6
to be elected as a councillor of the local government for the 7
local government area, or division of the local government 8
area, for which the election was to be held. 9
(4) Persons appointed under subsection (2) are taken to have been 10
properly elected as councillors of the local government for 11
which they are appointed. 12
35 Procedure if number of candidates exceeds number 13
required 14
(1) If the number of candidates properly nominated for an 15
election exceeds the number required to be elected, a poll 16
must be conducted under this part. 17
(2) The returning officer must give public notice that a poll will 18
be conducted. 19
(3) The notice must-- 20
(a) be in the approved form; and 21
(b) state-- 22
(i) the day the poll will be conducted; and 23
(ii) the names of all candidates properly nominated for 24
election in the order decided under section 57; and 25
(iii) the location of all ordinary polling booths to be 26
used for taking the ballot in the poll; and 27
(iv) that the ordinary voting hours are from 8a.m. to 28
6p.m; and 29
(c) be displayed in a conspicuous position at the office of 30
the returning officer; and 31
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[s 36]
(d) be published in a newspaper circulating generally in the 1
local government area, or division of the local 2
government area, for which the poll will be conducted. 3
(4) Display of a notice under subsection (3)(c) must-- 4
(a) start as soon as practicable after noon on the nomination 5
day; and 6
(b) continue until the close of the poll. 7
36 Procedure on death of candidate when poll to be 8
conducted 9
(1) If a poll is to be conducted and a candidate dies after noon on 10
the nomination day but before the polling day for an 11
election-- 12
(a) for a candidate for mayor--the proceedings for the 13
election of the mayor must start again; and 14
(b) for a candidate for councillor (other than mayor) if the 15
local government's area is undivided--the proceedings 16
for the election of the councillors must start again; and 17
(c) for a candidate for councillor (other than mayor) for a 18
division of a local government's area--the proceedings 19
for the election of councillors for the division must start 20
again. 21
(2) The deceased candidate's deposit must be refunded to-- 22
(a) if the deposit was paid by someone other than the 23
candidate--the other person; or 24
(b) otherwise--the candidate's personal representative. 25
(3) The deposits of other candidates must be refunded to the 26
persons who paid the deposits. 27
(4) If proceedings for an election are started again, the electoral 28
commission must, by gazette notice, fix a new polling day for 29
the election. 30
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37 If successful candidate dies 1
If a candidate who is successful at an election dies before the 2
final result of the poll is declared, the candidate must be 3
declared elected to the office for which the person was a 4
candidate. 5
Note-- 6
The effect of this section would be that a new vacancy exists in the 7
office of the councillor. 8
38 Extension of times 9
(1) This section applies if a returning officer publishes-- 10
(a) notice of a nomination day under section 25; or 11
(b) notice of the day a poll will be conducted under section 12
35. 13
(2) The electoral commission may, by gazette notice, fix a later 14
day as the nomination day or polling day if the day is likely to 15
be affected by an emergency. 16
(3) If the electoral commission fixes a later day under subsection 17
(2), the returning officer-- 18
(a) may give any necessary directions to candidates, and to 19
electors, about the procedures to be followed; and 20
(b) must publish a notice detailing the directions in a 21
newspaper circulating generally in the local government 22
area, or division of the local government area, for which 23
the election is to be held. 24
Subdivision 2 Deposits accompanying nomination 25
39 Deposit to accompany nomination 26
(1) At the same time as a nomination is given to the returning 27
officer under section 27, the nominee, or another person on 28
behalf of the nominee, must deposit $250 with the returning 29
officer. 30
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Part 4 Local government elections
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(2) The deposit must be paid-- 1
(a) in cash; or 2
(b) by a cheque drawn by a financial institution. 3
40 Disposal of deposits generally 4
(1) As soon as practicable after the conclusion of an election, 5
each candidate's deposit must be refunded to the person who 6
paid the deposit if-- 7
(a) the candidate is elected; or 8
(b) if the system of voting at the election is 9
optional-preferential voting--the number of formal 10
first-preference votes received by the candidate is more 11
than 4% of the total number of formal first-preference 12
votes cast in the election; or 13
(c) if the system of voting at the election is 14
first-past-the-post voting--the number of formal votes 15
received by the candidate is more than 4% of the total 16
number of formal votes cast in the election. 17
(2) However, a candidate's deposit must not be refunded until-- 18
(a) if, under section 117(1), the candidate is required to give 19
a return under the section for the candidate's disclosure 20
period for the election--the candidate gives the return; 21
or 22
(b) if, under section 117(3), the candidate is not required to 23
give a return under the section for the candidate's 24
disclosure period for the election--the end of the 25
disclosure period. 26
(3) Also, if a deposit is to be refunded to a person, it may be 27
refunded to someone else with the written authority of the 28
person. 29
(4) All other candidates' deposits become the property of the 30
State when the outcome of the election is decided unless 31
section 30, 33 or 36 applies. 32
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Local Government Electoral Bill 2011
Part 4 Local government elections
[s 41]
Subdivision 3 Recording of membership and 1
agents for group of candidates 2
41 Record of membership in group of candidates 3
(1) This section applies to a group of candidates in an election. 4
(2) The group must give a record of the membership of the group 5
to the returning officer after the candidates in the group are 6
nominated for the election but before noon on the last day for 7
the receipt of nominations for candidates in the election. 8
(3) The record must-- 9
(a) be in the approved form; and 10
(b) state the names of the candidates who are the members 11
of the group; and 12
(c) be signed by each of the candidates who are the 13
members of the group. 14
(4) As soon as practicable after the returning officer receives the 15
record, the returning officer must ensure a copy of the record 16
is displayed at the office of the returning officer. 17
42 Appointment of agent for group of candidates 18
(1) A group of candidates in an election must appoint an adult as 19
an agent for the group for the election. 20
(2) The instrument appointing the agent must-- 21
(a) be in the approved form; and 22
(b) state the name and address of the person appointed as 23
agent; and 24
(c) be signed by each of the candidates who are the 25
members of the group; and 26
(d) be signed by the person appointed as agent, and include 27
or be accompanied by-- 28
(i) the person's signed agreement to being appointed 29
as the group's agent; and 30
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Part 4 Local government elections
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(ii) the person's signed declaration that the person is 1
eligible to be appointed as the group's agent. 2
(3) A copy of the instrument appointing the agent must be given 3
to the returning officer at the same time the record is given to 4
the returning officer under section 41. 5
43 Register of group agents 6
(1) The returning officer must keep a register (the register of 7
group agents) that records the name and address of each 8
person who is appointed as the agent for a group of candidates 9
in an election. 10
(2) The appointment of an agent for a group of candidates-- 11
(a) is not effective under this Act until the appointment has 12
been recorded in the register of group agents; and 13
(b) ceases to be effective when the person's name is 14
removed from the register. 15
(3) The name of a person may be removed from the register only 16
if-- 17
(a) the person gives the returning officer a written notice, 18
signed by the person, stating that he or she has resigned 19
the appointment as agent; or 20
(b) the group of candidates gives the returning officer a 21
written notice, signed by all members of the group, 22
stating that the person has ceased to be the group's 23
agent. 24
(4) If the name of a person is removed from the register under 25
subsection (3), the group of candidates may, under section 42, 26
appoint another agent. 27
(5) If no agent is currently recorded for a group of candidates in 28
the register of group agents, all obligations under this Act 29
applying to an agent (including liability for any offence) apply 30
to each member of the group of candidates as if each 31
candidate was the agent for the group. 32
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Local Government Electoral Bill 2011
Part 4 Local government elections
[s 44]
Division 3 Arrangements for local government 1
elections 2
Subdivision 1 Polls by ballots 3
44 Poll by ballot 4
A poll must be conducted by ballot taken under this part. 5
45 Direction that poll be conducted by postal ballot 6
(1) A local government may apply to the Minister for a poll to be 7
conducted by postal ballot if the local government's area 8
includes a large rural sector, large remote areas or extensive 9
island areas. 10
(2) The Minister must decide to approve or not to approve the 11
application. 12
(3) The approval may be given for-- 13
(a) all the local government's area; or 14
(b) 1 or more divisions of its area; or 15
(c) a part of its area marked on a map. 16
(4) If the approval is given for a part of a local government's area, 17
the local government must-- 18
(a) ensure that the public may inspect the relevant map-- 19
(i) at the local government's public office; and 20
(ii) on the local government's website; and 21
(b) publish details of the approval in a newspaper 22
circulating generally in the part of the local 23
government's area. 24
(5) Decisions of the Minister under subsection (2) are not subject 25
to appeal. 26
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Part 4 Local government elections
[s 46]
Subdivision 2 Polling booths 1
46 Kinds of polling booths 2
(1) There are 3 kinds of polling booths-- 3
(a) ordinary polling booths; and 4
(b) mobile polling booths; and 5
(c) early polling booths. 6
(2) An ordinary polling booth is a building or other structure, or 7
a part of a building or other structure, that a returning officer 8
arranges to be available on polling day for an election to 9
enable electors in general to vote. 10
(3) A mobile polling booth is-- 11
(a) all or part of an institution made available as a mobile 12
polling booth under section 49(1); or 13
(b) all or part of a place made available as a mobile polling 14
booth under section 49(2). 15
(4) An early polling booth means a place arranged under section 16
50 as a polling booth for electors to cast a pre-poll vote. 17
47 Polling booths--general 18
(1) The returning officer for an election-- 19
(a) may arrange for a polling booth within or outside the 20
local government area, or division of the local 21
government area, to be used for the election; and 22
(b) may arrange for 2 or more polling booths at any place if 23
the number of electors likely to vote at the place is 24
greater than could conveniently vote in 1 booth at the 25
place; and 26
(c) must ensure that each polling booth is provided with 27
enough ballot boxes, ballot papers and materials to 28
enable electors to mark the ballot papers. 29
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(2) A place on or from which liquor may lawfully be sold can not 1
be used as a polling booth. 2
(3) However, a civic or cultural centre, community hall or similar 3
place under a local government's control, may be used as a 4
polling booth if-- 5
(a) the floor area for taking the ballot is designated in the 6
polling notice; and 7
(b) the local government ensures that no liquor will be sold 8
or supplied in that area during the taking of the ballot. 9
(4) The returning officer may arrange for all polling booths, or 10
only particular polling booths, for an election to be used for 11
any other election conducted at the same time for the one local 12
government area. 13
48 Provision of ordinary polling booths 14
(1) For taking a ballot in an election, the returning officer must 15
arrange for places, or parts of places, to be used on polling day 16
as ordinary polling booths to enable electors in general to 17
vote. 18
(2) The returning officer may-- 19
(a) less than 3 days before polling day, arrange for an 20
ordinary polling booth to be used; or 21
(b) less than 6 days before polling day, cancel arrangements 22
for the use of an ordinary polling booth; 23
only if it is necessary because of circumstances beyond the 24
returning officer's control. 25
(3) If, after publication of the polling notice, the returning officer 26
arranges for the use of an ordinary polling booth, the officer 27
must also publish notice-- 28
(a) of the location of the booth; and 29
(b) that the ordinary voting hours of the booth are from 30
8a.m. to 6p.m. 31
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Part 4 Local government elections
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(4) If the returning officer cancels arrangements for the use of an 1
ordinary polling booth, the officer must also publish notice of 2
the cancellation. 3
(5) The notice under subsection (3) or (4) is to be given in the 4
way the returning officer considers is the best way to inform 5
electors generally. 6
49 Declaration of mobile polling booths 7
(1) If the returning officer is satisfied residents in an institution 8
should be able to vote at the institution in a poll, the returning 9
officer may arrange for all or a part of the institution to be 10
available as a mobile polling booth to enable residents in the 11
institution to vote there in the poll. 12
(2) If the returning officer is satisfied a part of the local 13
government area or division of the local government area does 14
not have enough electors to justify the use of an ordinary 15
polling booth, the returning officer may arrange for any place 16
in the part to be available as a mobile polling booth to enable 17
electors in the part to vote in the poll. 18
(3) If the returning officer acts under subsection (1) or (2), the 19
officer must-- 20
(a) fix the times, during the period starting 11 days before 21
the polling day and ending at 6p.m. on the polling day, 22
when the mobile polling booth may be used for voting; 23
and 24
(b) publish a notice, in the approved form, in a newspaper 25
circulating generally in the relevant part of the local 26
government area-- 27
(i) declaring all or part of the institution or the place 28
as a mobile polling booth for the election; and 29
(ii) stating the times at which votes may be cast at the 30
booth. 31
(4) The returning officer also must give written notice to 32
candidates of the declaration of the mobile polling booth and 33
the times at which votes may be cast at the booth. 34
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Part 4 Local government elections
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(5) On the declaration of a mobile polling booth, the electors 1
resident in the institution or the electors resident in the part of 2
the local government area in which the mobile polling booth 3
is situated, may vote at the booth during the times stated for 4
the booth in the notice published under subsection (3)(b). 5
50 Declaration of early polling booths 6
(1) The returning officer must arrange at least 1 of the following 7
places as a polling booth for an election to enable electors to 8
cast a pre-poll vote-- 9
(a) the public office, or a part of the public office, of the 10
local government for which the election is to be held; 11
(b) another office used by the local government to receive 12
rate payments; 13
(c) another convenient place in the local government's area. 14
(2) Also, the returning officer must-- 15
(a) fix the times, during the period starting 11 days before 16
the polling day and ending at 6p.m. on the day 17
immediately before polling day, when the polling booth 18
may be used for voting; and 19
(b) publish a notice, in the approved form, in a newspaper 20
circulating generally in the local government's area-- 21
(i) declaring the place as a polling booth for the 22
election to enable electors to cast a pre-poll vote; 23
and 24
(ii) stating the times at which votes may be cast at the 25
booth. 26
(3) In addition, the returning officer must give written notice to 27
candidates of the declaration of the polling booth and the 28
times at which votes may be cast at the booth. 29
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51 Duty of person in charge of institution 1
(1) If the returning officer arranges for all or part of an institution 2
to be used as an ordinary polling booth for an election, the 3
person in charge of the institution must allow electors and 4
issuing officers to have access to the booth whenever votes 5
may be cast at the booth. 6
(2) If the returning officer declares all or part of an institution as a 7
mobile polling booth for an election, the person in charge of 8
the institution must allow residents in the institution and 9
issuing officers to have access to the booth whenever votes 10
may be cast at the booth. 11
52 Privacy for electors casting votes at polling booths 12
The returning officer must ensure that each polling booth for 13
an election is provided with enough voting compartments, or 14
other suitable facilities, to allow the casting of votes in private. 15
53 Adjournment of poll 16
(1) A returning officer may adjourn the poll at a polling booth if 17
the taking of the poll is, or is likely to be, interrupted by an 18
emergency. 19
(2) The presiding officer for a polling booth may adjourn the poll 20
at the polling booth if the taking of the poll is, or is likely to 21
be, interrupted by an emergency. 22
(3) If a poll is adjourned under subsection (1) or (2), the returning 23
officer must fix a day (no later than 34 days after the day on 24
which the poll is adjourned) for conducting the adjourned 25
poll. 26
(4) The returning officer must publish notice of the day fixed-- 27
(a) in a newspaper circulating generally in the relevant part 28
of the local government area; and 29
(b) in other ways the returning officer considers 30
appropriate. 31
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Subdivision 3 Ballot boxes, ballot papers and 1
other documents 2
54 Ballot boxes generally 3
(1) A ballot box used in a poll must-- 4
(a) have an opening of a size adequate to allow folded ballot 5
papers and declaration envelopes to be put in the box; 6
and 7
(b) be under the scrutiny and effective control of an issuing 8
officer. 9
(2) Issuing officers, candidates and scrutineers for the poll, may 10
inspect a ballot box before the box is locked or sealed for 11
receipt of ballot papers. 12
55 Requirements of ballot papers 13
(1) A ballot paper must-- 14
(a) be in the approved form; and 15
(b) be of material that, when folded, the vote recorded on it 16
is effectively concealed; and 17
(c) be attached to a butt that-- 18
(i) is not part of the ballot paper; and 19
(ii) is perforated to allow the ballot paper to be easily 20
detached from the butt; and 21
(iii) is numbered in regular arithmetical sequence, 22
starting with the numeral 1 and proceeding by 23
intervals of one whole numeral, so that each butt 24
for the local government area, or division of the 25
local government area, for which the poll is 26
conducted has a unique number; and 27
(d) show the name of each candidate as required by 28
subsection (2); and 29
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(e) if the names of 2 or more candidates are so similar as to 1
be likely to cause confusion to electors--contain an 2
appropriate description or addition, in the returning 3
officer's opinion, to distinguish the persons' names; and 4
(f) if a candidate endorsed by a political party was 5
nominated under section 27(1)(a)--contain, printed 6
adjacent to the candidate's name, the name of the 7
political party; and 8
(g) if a candidate is a member of a group of 9
candidates--contain, printed adjacent to the candidate's 10
name, the name of the group. 11
(2) The name of a candidate must be shown on a ballot paper-- 12
(a) only once by showing first the surname followed by the 13
given name or names of the candidate; and 14
(b) in the order decided under section 57. 15
(3) A ballot paper must not contain the name of anyone who is 16
not a candidate. 17
56 Ballot papers for separate polls 18
(1) This section applies if a poll for election of mayor of a local 19
government is to be conducted when a poll for election of 20
another councillor of the local government is conducted. 21
(2) The returning officer may decide to use separate ballot papers 22
or a combined ballot paper for the polls. 23
57 Order of candidates' names on ballot papers 24
(1) The order the names of candidates in an election are to be 25
listed on ballot papers and polling notices is to be decided 26
under this section. 27
(2) The order must be decided by the returning officer as soon as 28
practicable after noon on the nomination day. 29
(3) The returning officer must, in the presence of 2 witnesses-- 30
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(a) write the name of each candidate on a separate sheet of 1
paper; and 2
(b) ensure that each piece of paper is of the same kind, 3
shape, size and colour; and 4
(c) put each separate piece of paper in a separate envelope 5
and, if it is necessary to fold the piece of paper to make 6
it fit in the envelope, fold each piece of paper in the 7
same way to make each the same size and thickness; and 8
(d) ensure that each envelope is opaque and of the same 9
kind, shape, size and colour; and 10
(e) after each piece of paper has been placed in an envelope, 11
seal the envelope; and 12
(f) put all the envelopes in a container and shuffle them; 13
and 14
(g) draw out the envelopes, 1 at a time; and 15
(h) as each envelope is drawn out, open it and note the name 16
of the candidate shown on the piece of paper in the 17
envelope. 18
(4) The order in which the names are noted is the order in which 19
the names are to appear on the ballot paper and polling notice. 20
(5) The returning officer must allow any candidate, or the 21
representative of a candidate, to be present when the order of 22
candidates' names is decided. 23
58 Distribution of ballot papers 24
(1) The returning officer must ensure an adequate number of 25
ballot papers is available at all polling booths for an election. 26
(2) The returning officer must prepare a delivery note, in the 27
approved form, in triplicate for each parcel of ballot papers 28
supplied by the returning officer to presiding officers at 29
polling booths. 30
(3) The approved form must-- 31
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[s 58]
(a) show details of the number of ballot papers supplied; 1
and 2
(b) show the range of numbers of the ballot papers; and 3
(c) include a form of acknowledgment of receipt of the 4
ballot papers. 5
(4) Two copies of the delivery note must be included in the parcel 6
of ballot papers. 7
(5) As soon as practicable after a presiding officer receives a 8
parcel of ballot papers, the officer must-- 9
(a) check the contents against the details shown in the 10
delivery note; and 11
(b) complete the particulars prescribed by the delivery note; 12
and 13
(c) sign the form of acknowledgment included in the 14
delivery note. 15
(6) If there is a discrepancy between the details shown in the 16
delivery note and the contents of the parcel, the presiding 17
officer must cause a countercheck to be made by-- 18
(a) if an issuing officer is available--the issuing officer; or 19
(b) if an issuing officer is not available--a responsible 20
person. 21
(7) A discrepancy confirmed by a countercheck must be noted in 22
the form of acknowledgment and the form must be signed by 23
the presiding officer and person who made the countercheck. 24
(8) The presiding officer must return 1 copy of the delivery note 25
to the returning officer and retain the other copy of the 26
delivery note until it is given to the returning officer with the 27
sealed parcels of ballot papers under section 92. 28
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[s 59]
Subdivision 4 Scrutineers 1
59 Candidates' entitlement to scrutineers 2
Each candidate in an election is entitled to have 1 scrutineer 3
present for each issuing officer at a polling booth or at a place 4
for examination of declaration envelopes or counting of 5
votes-- 6
(a) before and at all times when electors may vote in the 7
booth; and 8
(b) at all times during the examination or counting. 9
60 Appointment of scrutineers 10
(1) A candidate in an election may, in the approved form, appoint 11
1 or more adults as scrutineers for the candidate. 12
(2) If a candidate acts under subsection (1), the candidate must 13
give the approved form to the returning officer. 14
61 Proof of identification 15
A scrutineer must-- 16
(a) carry evidence of identification and of the person's 17
appointment as a scrutineer; and 18
(b) on demand, produce the evidence to an issuing officer. 19
62 Powers of scrutineers 20
(1) A scrutineer for a candidate in an election is entitled to be 21
present-- 22
(a) in a polling booth-- 23
(i) to inspect ballot boxes before taking the ballot in 24
the poll starts; and 25
(ii) when electors may vote in the booth; and 26
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Part 4 Local government elections
[s 63]
(b) in a polling booth or other place--to watch the 1
examination of declaration envelopes and counting of 2
votes. 3
(2) A scrutineer may-- 4
(a) object to an issuing officer's decision on a person's 5
entitlement to vote at an election; and 6
(b) object to the acceptance or rejection of a ballot paper by 7
the returning officer or a presiding officer; and 8
(c) record the identification details of a person who votes at 9
the election at a polling booth that the person gives to an 10
issuing officer at the polling booth; and 11
(d) remove from the polling booth the scrutineer's record of 12
identification details mentioned in paragraph (c). 13
Note-- 14
A scrutineer may record the name and address, as given to an issuing 15
officer, of a person voting at an election but may not record details of 16
how the person voted at the election. See section 192(3). 17
Subdivision 5 Errors, omissions or delays 18
63 Correction of errors, omissions or delays 19
If there is an error, omission or delay in or relating to the 20
preparation, issue, sending or return of any voters roll, ballot 21
paper or other document relevant to the conduct of an 22
election, it may be corrected by a gazette notice by the 23
electoral commission setting out what is to be done. 24
Division 4 Who may vote 25
64 Who may vote 26
(1) The following persons are the only persons entitled to vote at 27
an election-- 28
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[s 65]
(a) persons enrolled on the voter roll for-- 1
(i) for an election for all the local government's 2
area--the area; or 3
(ii) for an election for a division of the local 4
government's area--the division; 5
(b) persons whose names are not on the voter roll for the 6
area or division because of official error. 7
(2) A person is not entitled to vote-- 8
(a) more than once at the same election; or 9
(b) at 2 or more divisions of the same local government 10
area. 11
(3) Also, a person who is serving a sentence of imprisonment is 12
not entitled to vote at an election. 13
Division 5 How voting takes place 14
Subdivision 1 System of voting 15
65 System of voting 16
The system of voting at an election is-- 17
(a) for a local government area divided into single-member 18
divisions--optional-preferential voting; and 19
(b) in any other case--first-past-the-post voting. 20
66 Compulsory voting 21
Voting at an election is compulsory for electors. 22
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Part 4 Local government elections
[s 67]
Subdivision 2 Casting votes 1
67 Ways in which to cast votes 2
(1) In an election, other than a postal ballot election, an elector 3
may-- 4
(a) cast their vote at an ordinary or mobile polling booth on 5
polling day (an ordinary vote); or 6
(b) cast their vote at an early polling booth before polling 7
day (a pre-poll vote); or 8
(c) cast their vote using posted voting papers (a postal vote). 9
(2) In a postal ballot election, an elector must cast a postal vote. 10
68 Who may cast votes in particular ways 11
(1) Any elector may cast an ordinary vote in an election, other 12
than a postal ballot election. 13
(2) Any elector may cast a pre-poll vote in an election, other than 14
a postal ballot election. 15
(3) Any elector may cast an absentee vote in an election, other 16
than a postal ballot election, if the local government is divided 17
into divisions. 18
(4) An elector may only cast a postal vote in an election, other 19
than a postal ballot election, if-- 20
(a) the elector will not be within 8km, by the nearest 21
practicable route, from a polling booth during ordinary 22
voting hours on polling day; or 23
(b) the elector will be working or travelling under 24
conditions that prevent voting at a polling booth during 25
ordinary voting hours on polling day; or 26
(c) the elector will be prevented from voting at a polling 27
booth because of illness, disability or advanced 28
pregnancy; or 29
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(d) the elector will be prevented from voting at a polling 1
booth because the elector is caring for a person who is 2
ill, has a disability or is pregnant; or 3
(e) the elector will be prevented from voting at a polling 4
booth for all, or most, of the ordinary voting hours on 5
polling day because of membership of a religious order 6
or because of religious beliefs. 7
(5) All electors must cast a postal vote in a postal ballot election. 8
(6) In this section-- 9
absentee vote means a vote cast by an elector at a polling 10
booth in any division of a local government area other than the 11
division of the local government area for which the elector is 12
enrolled on the voters roll. 13
Note-- 14
There is no provision under this Act for electors to cast their vote at a 15
polling booth located in a different local government area to the one in 16
which the elector is enrolled on the voters roll. 17
69 Who must complete a declaration envelope 18
(1) An elector must complete a declaration envelope for an 19
election if-- 20
(a) the elector is casting a postal vote; or 21
(b) the elector's name is not on the voters roll apparently 22
because of an official error; or 23
(c) the elector appears, from a record apparently made in 24
error, to have already voted in the election; or 25
(d) the elector is serving a sentence of imprisonment on the 26
cut-off day for the election, but is not serving a sentence 27
of imprisonment on the polling day for the election; or 28
(e) the elector's address has been omitted from a voters 29
roll-- 30
(i) because of the Electoral Act 1992, section 58; or 31
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(ii) under an arrangement under the Electoral Act 1
1992, section 62 because of the Commonwealth 2
Electoral Act 1918 (Cwlth), section 104. 3
(2) Also, an elector who an issuing officer informs must complete 4
a declaration envelope because the issuing officer suspects, on 5
reasonable grounds, that the elector is not entitled to vote at 6
the election, must complete a declaration envelope. 7
70 Casting an ordinary vote 8
(1) To cast an ordinary vote in an election, an elector must follow, 9
in order, each of subsections (2) to (7) that applies to the 10
elector. 11
(2) The elector must attend a polling booth in the local 12
government area during voting hours for the booth. 13
(3) At the polling booth, the elector must give the elector's full 14
name and address to an issuing officer at the booth. 15
(4) The elector may be asked questions by the issuing officer in 16
order for the issuing officer to decide the following-- 17
(a) whether the elector is entitled to vote at the election; 18
(b) whether the elector must complete a declaration 19
envelope. 20
(5) If the elector has a declaration envelope for the election but is 21
not required to complete a declaration envelope when casting 22
their vote, the elector must give the declaration envelope to 23
the issuing officer at the booth. 24
(6) If the elector must complete a declaration envelope when 25
casting their vote, the elector must sign the appropriate 26
declaration on the declaration envelope before an issuing 27
officer and have the officer sign the envelope as witness. 28
(7) On being given the ballot paper and declaration envelope (if 29
any), the elector must, without delay-- 30
(a) go alone into an unoccupied voting compartment in the 31
polling booth; and 32
(b) there, in private, record a vote on the ballot paper; and 33
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(c) fold the ballot paper, concealing the vote, and-- 1
(i) if the elector completed a declaration 2
enevelope--put the folded ballot paper in the 3
envelope, seal the envelope and put the sealed 4
envelope in the appropriate ballot box at the 5
polling booth; or 6
(ii) otherwise--put the folded ballot paper in the 7
appropriate ballot box at the polling booth; and 8
(d) leave the polling booth. 9
71 Casting a pre-poll vote 10
(1) To cast a pre-poll vote in an election, an elector must follow, 11
in order, each of subsections (2) to (7) that applies to the 12
elector. 13
(2) The elector must attend an early polling booth in the local 14
government area during voting hours for the booth. 15
(3) At the polling booth, the elector must give the elector's full 16
name and address to an issuing officer at the booth. 17
(4) The elector may be asked questions by the issuing officer in 18
order for the issuing officer to decide the following-- 19
(a) whether the elector is entitled to vote at the election; 20
(b) whether the elector must complete a declaration 21
envelope. 22
(5) If the elector has a declaration envelope for the election but is 23
not required to complete a declaration envelope when casting 24
their vote, the elector must give the declaration envelope to 25
the issuing officer at the booth. 26
(6) If the elector must complete a declaration envelope when 27
casting their vote, the elector must sign the appropriate 28
declaration on the declaration envelope before an issuing 29
officer and have the officer sign the envelope as witness. 30
(7) On being given the ballot paper and declaration envelope (if 31
any), the elector must, without delay-- 32
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(a) go alone into an unoccupied voting compartment in the 1
polling booth; and 2
(b) there, in private, record a vote on the ballot paper; and 3
(c) fold the ballot paper, concealing the vote, and-- 4
(i) if the elector completed a declaration 5
enevelope--put the folded ballot paper in the 6
envelope, seal the envelope and put the sealed 7
envelope in the appropriate ballot box at the 8
polling booth; or 9
(ii) otherwise--put the folded ballot paper in the 10
appropriate ballot box at the polling booth; and 11
(d) leave the polling booth. 12
72 Casting a postal vote 13
(1) To cast a postal vote in an election, an elector must follow, in 14
order, each of subsections (2) to (5) that applies to the elector. 15
(2) The elector must apply to the returning officer for a 16
declaration envelope and a ballot paper with which to cast a 17
postal vote if-- 18
(a) the election is not a postal ballot election; or 19
Note-- 20
See section 79 for the relevant application. 21
(b) the election is a postal ballot election and the elector has 22
not been given a ballot paper or declaration envelope. 23
Note-- 24
See section 81 for the relevant application. 25
(3) After being given a ballot paper and a declaration envelope, 26
the elector must, before 6p.m. on polling day-- 27
(a) record a vote on the ballot paper; and 28
(b) fold the ballot paper, put it in the declaration envelope 29
and seal the envelope. 30
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(4) The elector must sign the declaration on the declaration 1
envelope in the presence of an adult, and have the adult sign 2
the envelope as witness. 3
Note-- 4
For the duty of a witness in signing declaration envelopes, see section 5
194. 6
(5) The elector must put the sealed declaration envelope in the 7
reply paid post envelope that accompanied the declaration 8
envelope and post or give the envelope to the returning officer. 9
Note-- 10
The ballot paper must be received by the returning officer no later than 11
10 days after the polling day. See section 86(4) or 87(4). 12
73 Voting hours for polling booths 13
(1) The voting hours for an ordinary polling booth are between 14
8a.m. and 6p.m. on polling day. 15
(2) The voting hours for a mobile polling booth are the times 16
fixed for the booth by the returning officer. 17
(3) The voting hours for an early polling booth are the times, 18
during the pre-polling period, notified by the returning officer 19
under section 50(2). 20
(4) If an elector is in a polling booth at the time of close of voting 21
for the booth and for the purpose of casting a vote, the elector 22
must be allowed to vote. 23
(5) In this section-- 24
pre-polling period, for an election, means the period-- 25
(a) starting no earlier than-- 26
(i) 14 days before polling day; or 27
(ii) the longer period that the returning officer fixes 28
and notifies in a newspaper circulating generally in 29
the local government area, or division of the local 30
government area; and 31
(b) ending no later than the day before polling day. 32
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74 Particular responsibilities of returning officer when 1
electors cast postal votes 2
(1) This section applies if the returning officer for an election 3
receives a sealed envelope under section 72(5). 4
(2) The returning officer must put the sealed envelope in the 5
appropriate ballot box. 6
75 Particular responsibilities of issuing officers when 7
electors cast ordinary or pre-poll votes 8
(1) This section applies if an elector attends a polling booth, 9
during voting hours for the booth, to cast an ordinary or 10
pre-poll vote in an election. 11
(2) An issuing officer at the polling booth must give the elector a 12
ballot paper if-- 13
(a) the elector gives the issuing officer the elector's full 14
name and address; and 15
(b) the issuing officer is satisfied the elector is entitled to 16
vote at the election. 17
(3) The issuing officer may ask the elector questions to decide the 18
following-- 19
(a) whether the elector is entitled to vote at the election; 20
(b) whether the elector must complete a declaration 21
envelope. 22
(4) Subsection (5) applies if, because of the elector's answers to 23
the questions under subsection (3)-- 24
(a) the issuing officer suspects, on reasonable grounds, that 25
the elector is not entitled to vote at the election; or 26
(b) the issuing officer is satisfied the elector must complete 27
a declaration envelope. 28
(5) The issuing officer must-- 29
(a) inform the elector that the elector must complete a 30
declaration envelope; and 31
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(b) give the elector the declaration envelope to complete. 1
(6) An issuing officer must-- 2
(a) keep a record of the ballot papers and declaration 3
envelopes given to electors under this section; and 4
(b) sign the record. 5
Subdivision 3 Special arrangements for particular 6
voters 7
76 Arrangements for electors at hospitals etc. 8
(1) If a polling booth is a hospital or part of a hospital, an issuing 9
officer may visit patients and residents in the hospital to 10
enable them to vote. 11
(2) The electoral commission may direct that declaration 12
envelopes be completed by electors voting under this section 13
if, in the opinion of the electoral commission, the size of the 14
voters roll for an election would be impracticable to be used in 15
a portable way. 16
(3) Before taking action under subsection (1), the issuing officer 17
must inform the scrutineers present of the proposed action. 18
(4) When visiting patients and residents in a hospital who are 19
electors, the issuing officer must-- 20
(a) take to the elector-- 21
(i) a ballot paper and, if directed by the electoral 22
commission, a declaration envelope; and 23
(ii) a ballot box; and 24
(iii) anything else necessary to enable the elector to 25
vote; and 26
(b) be accompanied by any scrutineer who wishes to 27
accompany the issuing officer. 28
(5) The issuing officer must ensure that, as far as practicable-- 29
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(a) if the electoral commission has directed that declaration 1
envelopes be completed--the elector completes the 2
declaration envelope when casting their vote, including 3
signing the appropriate declaration on the declaration 4
envelope before the issuing officer and having the 5
officer sign the envelope as witness; and 6
(b) the elector, in private, records a vote on the ballot paper 7
and folds the ballot paper, concealing the vote; and 8
(c) the elector puts the folded ballot paper-- 9
(i) if the electoral commission has directed that 10
declaration envelopes be completed--in the 11
declaration envelope, seals the envelope and puts 12
the sealed envelope in the ballot box; or 13
(ii) otherwise--in the ballot box. 14
(6) In this section-- 15
hospital includes any of the following-- 16
(a) a convalescent home; 17
(b) a nursing home; 18
(c) a home for the aged; 19
(d) a hostel for the aged or infirm. 20
77 Arrangements for electoral visitor voting 21
(1) Each of the following electors is entitled to be an electoral 22
visitor voter-- 23
(a) an elector who, because of illness, disability or 24
advanced pregnancy, will be prevented from voting at a 25
polling booth; 26
(b) an elector who, because the elector is caring for a person 27
who is ill, has a disability or is pregnant, will be 28
prevented from voting at a polling booth. 29
(2) An elector who is entitled to be an electoral visitor voter may 30
apply to the returning officer to vote as an electoral visitor 31
voter. 32
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(3) The application must be in the approved form. 1
(4) If the application is received no later than 6p.m. on the 2
Wednesday before polling day, the returning officer must 3
direct an issuing officer to visit the elector to enable the 4
elector to vote. 5
(5) As soon as practicable after the returning officer has directed 6
an issuing officer to visit electors, the returning officer must 7
inform each candidate of-- 8
(a) the place from which the issuing officer proposes to start 9
making visits; and 10
(b) the time or times on the day or days when the issuing 11
officer proposes to start making visits. 12
(6) The issuing officer must visit an elector at a reasonable hour 13
before 6p.m. on polling day. 14
(7) When visiting an elector, the issuing officer must-- 15
(a) take to the elector-- 16
(i) a ballot paper; and 17
(ii) a ballot box; and 18
(iii) anything else necessary to enable the elector to 19
vote; and 20
(b) be accompanied by any scrutineer who wishes to 21
accompany the issuing officer. 22
(8) The issuing officer must ensure that, as far as practicable-- 23
(a) the elector, in private, records a vote on the ballot paper 24
and folds the ballot paper, concealing the vote; and 25
(b) the elector puts the folded ballot paper in the ballot box. 26
78 Help for electors voting 27
(1) If an elector satisfies an issuing officer that the elector can not 28
vote without help, the elector may be accompanied into an 29
unoccupied voting compartment in a polling booth, or be 30
otherwise helped, by someone chosen by the elector. 31
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(2) The person may help the elector in any of the following 1
ways-- 2
(a) if asked by the elector--stating the names of candidates; 3
(b) acting as interpreter; 4
(c) explaining the ballot paper and the requirements of 5
subdivision 5 about its marking; 6
(d) marking, or helping to mark, the ballot paper in the way 7
the elector wishes; 8
(e) folding the ballot paper and putting it into a ballot box 9
or a declaration envelope; 10
(f) sealing a declaration envelope or putting it into a ballot 11
box. 12
(3) Subsections (1) and (2) apply to all types of voting. 13
(4) This section applies despite any of the following provisions-- 14
· section 70(7)(a) and (b) 15
· section 71(7)(a) and (b). 16
Subdivision 4 Distribution of ballot papers 17
79 Applications to cast postal votes in local government 18
elections that are not postal ballot elections 19
(1) This section applies to an application made by an elector to 20
the returning officer to cast a postal vote in an election that is 21
not a postal ballot election. 22
Note-- 23
Only particular electors are entitled to cast a postal vote in an election. 24
See section 68. 25
(2) The application-- 26
(a) must be in the approved form signed by the elector; and 27
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Note-- 1
The signature of the elector on the application must match the 2
signature on the declaration envelope completed by the elector 3
when casting a postal vote. See section 86(3) and 87(3). 4
(b) must state the address to which the ballot paper and 5
declaration envelope for the elector is to be posted, 6
delivered or sent; and 7
(c) may be posted, faxed or given to the returning officer by 8
any person; and 9
(d) must be received by the returning officer for the election 10
no later than 6p.m. on the Wednesday before polling 11
day. 12
(3) Subsection (4) applies if-- 13
(a) the application complies with subsection (2); and 14
(b) the returning officer is satisfied the applicant is an 15
elector who is entitled to cast a postal vote in the 16
election. 17
(4) The returning officer must, as soon as practicable after 18
receiving the application, give the applicant-- 19
(a) a ballot paper and a declaration envelope; and 20
(b) written instructions on how to cast a postal vote. 21
(5) The things given to an elector under subsection (4) must be 22
accompanied by an unsealed reply paid post envelope 23
addressed to the returning officer and bearing the words 24
`Ballot paper--(insert name of local government area and, if 25
any, division number or name)'. 26
(6) However, the unsealed envelope need not be reply paid post if 27
it is to be sent to an address outside of Australia. 28
(7) The returning officer must keep a record of the ballot papers 29
and declaration envelopes posted to electors under this 30
section. 31
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80 Distribution of ballot papers to electors for postal ballot 1
elections 2
(1) For a postal ballot election, the returning officer must post the 3
following things to each elector for the election as soon as 4
practicable after the nomination day-- 5
(a) a ballot paper; 6
(b) a declaration envelope; 7
(c) written instructions on how a vote may be cast. 8
(2) The things given to an elector under subsection (1) must-- 9
(a) be accompanied by an unsealed reply paid post 10
envelope addressed to the returning officer and bearing 11
the words `Ballot paper--(insert name of local 12
government area and, if any, division number or name)'; 13
and 14
(b) be posted to the elector's address stated in the voters roll 15
or an electoral roll mentioned in the Electoral Act 1992, 16
section 58(3). 17
(3) However, the unsealed envelope need not be reply paid post if 18
it is to be sent to an address outside of Australia. 19
(4) The returning officer must keep a record of the ballot papers 20
and declaration envelopes posted to electors under this 21
section. 22
81 Applications to cast postal votes in postal ballot 23
elections 24
(1) This section applies if a person believes they are entitled to 25
vote in a postal ballot election but the person is not given a 26
ballot paper and declaration envelope under section 80(1). 27
(2) The person may apply to the returning officer to cast a postal 28
vote in the postal ballot election. 29
(3) The application-- 30
(a) must be in the approved form signed by the person; and 31
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Note-- 1
The signature of the elector on the application must match the 2
signature on the declaration envelope completed by the elector 3
when casting a postal vote. See section 86(3) and 87(3). 4
(b) must state the address to which the ballot paper and 5
declaration envelope for the person is to be posted, 6
delivered or sent; and 7
(c) may be posted, faxed or given to the returning officer by 8
any person; and 9
(d) must be received by the returning officer for the election 10
no later than 6p.m. on the Wednesday before polling 11
day. 12
(4) Subsection (5) applies if-- 13
(a) the application complies with subsection (3); and 14
(b) the returning officer is satisfied the person is an elector 15
who is entitled to cast a postal vote in the election. 16
(5) The returning officer must, as soon as practicable after 17
receiving the application, give the person-- 18
(a) a ballot paper and a declaration envelope; and 19
(b) written instructions on how to cast a postal vote. 20
(6) The things given to a person under subsection (5) must be 21
accompanied by an unsealed reply paid post envelope 22
addressed to the returning officer and bearing the words 23
`Ballot paper--(insert name of local government area and, if 24
any, division number or name)'. 25
(7) However, the unsealed envelope need not be reply paid post if 26
it is to be sent to an address outside of Australia. 27
(8) The returning officer must keep a record of the ballot papers 28
and declaration envelopes posted to electors under subsection 29
(5). 30
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82 Distribution of ballot papers to particular electors whose 1
address has been omitted from a voters roll 2
(1) As soon as practicable after the nomination day for an 3
election, the returning officer must post the following things 4
to an elector mentioned in section 69(1)(e)-- 5
(a) a ballot paper; 6
(b) a declaration envelope; 7
(c) written instructions on how a vote may be cast; 8
(d) an unsealed reply paid post envelope addressed to the 9
returning officer and bearing the words `Ballot 10
paper--(insert name of local government area and, if 11
any, division number or name)'. 12
(2) However, the unsealed envelope need not be reply paid post if 13
it is to be posted to an address outside Australia. 14
(3) The returning officer must keep a record of the ballot papers 15
and declaration envelopes posted to electors under subsection 16
(1). 17
Subdivision 5 Recording a vote on ballot papers 18
83 How electors must record a vote on a ballot 19
paper--optional-preferential voting 20
(1) This section applies if the system of voting at an election is 21
optional-preferential voting. 22
(2) An elector records a vote on a ballot paper by-- 23
(a) to record a first-preference vote--writing on the ballot 24
paper the numeral 1, or a tick or a cross, in the square 25
opposite the name of the candidate for whom the elector 26
wishes to cast a first-preference vote; and 27
(b) to record a preference vote--writing the numerals 2, 3, 28
and so on (in regular arithmetical sequence by intervals 29
of 1 whole numeral) in other squares to record the order 30
of the elector's preferences for the other candidates. 31
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(3) An elector is only required to record a first-preference vote on 1
a ballot paper but may also record preference votes for 1 or 2
more, but not necessarily all, of the candidates. 3
84 How electors must record a vote on a ballot 4
paper--first-past-the-post voting 5
(1) This section applies if the system of voting at an election is 6
first-past-the-post voting. 7
(2) For an election of a mayor, an elector records a vote on a 8
ballot paper by writing on the ballot paper the numeral 1, or a 9
tick or a cross, in the square opposite the name of the 10
candidate whom the elector prefers. 11
(3) For an election of other councillors, an elector records a vote 12
on a ballot paper by writing on the ballot paper-- 13
(a) if 1 candidate is to be elected--the numeral 1, or a tick 14
or cross, in the square opposite the name of the 15
candidate whom the elector prefers; or 16
(b) if 2 or more candidates are to be elected-- 17
(i) the numeral 1, or a tick or a cross, in the square 18
opposite the name of 1 candidate for whom the 19
elector wishes to vote; and 20
(ii) the numerals 2, 3 and so on in the squares opposite 21
the names of the other candidates for whom the 22
elector wishes to vote, up to the number of 23
candidates to be elected. 24
85 Replacement ballot papers 25
(1) If, while voting at a polling booth or voting under section 77, 26
a ballot paper given to an elector is accidentally defaced or 27
destroyed, an issuing officer must give the elector a 28
replacement ballot paper for use in the poll. 29
(2) However, before a replacement ballot paper can be given-- 30
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(a) the ballot paper it replaces (the replaced ballot paper) 1
must not have been already put in a ballot box in use in 2
the poll; and 3
(b) the elector must declare, in the approved form, before 4
the issuing officer that-- 5
(i) the replaced ballot paper has been accidentally 6
defaced or destroyed; and 7
(ii) the elector has not voted in the election; and 8
(c) if the replaced ballot paper has been accidentally 9
defaced--the elector must give the defaced ballot paper 10
to the issuing officer; and 11
(d) if the replaced ballot paper has been accidentally 12
destroyed--the elector must give to the issuing officer, 13
if practicable, the remains of the ballot paper; and 14
(e) the issuing officer must put the defaced ballot paper, or 15
any remains of the destroyed ballot paper, in an 16
envelope, seal the envelope and set it aside in the 17
officer's custody for separate identification under 18
section 92(9)(b). 19
(3) If a ballot paper given to an elector under section 79, 80 or 82 20
is lost in transit or is accidentally defaced or destroyed, the 21
returning officer for the election must, before 6p.m. on polling 22
day, give the elector a replacement ballot paper and a 23
declaration envelope for use in the election. 24
(4) However, before a replacement ballot paper can be given-- 25
(a) the elector must declare, in the approved declaration 26
form, before the issuing officer or an adult witness 27
that-- 28
(i) the ballot paper it replaces (also the replaced ballot 29
paper) has not been received by the elector or has 30
been accidentally defaced or destroyed; and 31
(ii) the elector has not voted in the election; and 32
(b) if the replaced ballot paper has been accidentally 33
defaced--the elector must put the defaced ballot paper 34
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into the elector's original declaration envelope or a 1
replacement declaration envelope, seal the envelope and 2
give the envelope to the issuing officer; and 3
(c) if the replaced ballot paper has been accidentally 4
destroyed--the elector must, if practicable, put the 5
remains of the destroyed ballot paper into the elector's 6
original declaration envelope or a replacement 7
declaration envelope, seal the envelope and give the 8
envelope to the issuing officer; and 9
(d) the issuing officer must set aside the elector's 10
declaration envelope in the officer's custody for separate 11
identification under section 92(9)(b). 12
(5) The returning officer must record, in the approved form, the 13
name and place of residence of each person to whom a 14
replacement ballot paper is given. 15
Division 6 Formal and informal votes 16
86 Formal and informal ballot 17
papers--optional-preferential voting 18
(1) This section applies to an election if the system of voting is 19
optional-preferential voting. 20
(2) A ballot paper has effect as recording a vote in the election 21
only if the ballot paper-- 22
(a) is completed under section 83; and 23
(b) does not contain any writing or mark (other than as 24
permitted by this Act) by which the elector can, in the 25
returning officer's opinion, be identified; and 26
(c) has been put into a ballot box as required by this Act. 27
(3) Also, if the ballot paper is sealed in a declaration envelope, as 28
required by this Act, the envelope must have been signed, and 29
the signature witnessed, as required by section 72. 30
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(4) Also, if the ballot paper is sealed in a declaration envelope as 1
a postal vote-- 2
(a) the ballot paper must be received by the returning 3
officer no later than 10 days after polling day; and 4
(b) for an elector who made an application under section 79 5
or 81 to cast a postal vote in the election--the signature 6
on the declaration envelope must match the elector's 7
signature on the application. 8
(5) If a ballot paper shows 2 or more squares in which the same 9
numeral is marked, those numerals and any higher numerals 10
marked in other squares must be disregarded. 11
(6) If a ballot paper shows a break in the sequence of numerals 12
marked in the squares on the ballot paper to indicate 13
preferences, the numeral that breaks the sequence and any 14
higher numerals marked in other squares must be disregarded. 15
(7) A ballot paper that has effect to record a vote under this 16
section is a formal ballot paper. 17
(8) A ballot paper that has no effect to record a vote under this 18
section is an informal ballot paper. 19
87 Formal and informal ballot papers--first-past-the-post 20
voting 21
(1) This section applies to an election if the system of voting is 22
first-past-the-post voting. 23
(2) A ballot paper has effect as recording a vote in the election 24
only if the ballot paper-- 25
(a) is completed under section 84; and 26
(b) does not contain any writing or mark (other than as 27
permitted by this Act) by which the elector can, in the 28
returning officer's opinion, be identified; and 29
(c) has been put into a ballot box as required by this Act. 30
(3) Also, if the ballot paper is sealed in a declaration envelope, as 31
required by this Act, the envelope must have been signed, and 32
the signature witnessed, as required by section 72. 33
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(4) Also, if the ballot paper is sealed in a declaration envelope as 1
a postal vote-- 2
(a) the ballot paper must be received by the returning 3
officer no later than 10 days after polling day; and 4
(b) for an elector who made an application under section 79 5
or 81 to cast a postal vote in the election--the signature 6
on the declaration envelope must match the elector's 7
signature on the application. 8
(5) A ballot paper that complies with section 84 must not be 9
rejected merely because it indicates the elector's intention to 10
vote for a number of candidates greater than the number to be 11
elected. 12
(6) A ballot paper that has effect to record a vote under this 13
section is a formal ballot paper. 14
(7) A ballot paper that has no effect to record a vote under this 15
section is an informal ballot paper. 16
88 Ballot paper partly formal and partly informal 17
(1) This section applies if-- 18
(a) an election for mayor of a local government and an 19
election for the other councillors of the local 20
government are held at the same time and 1 ballot paper 21
is used for both elections; and 22
(b) the ballot paper, as completed for 1 of the elections, is 23
informal but, as completed for the other election, is 24
formal. 25
(2) The informal part of the ballot paper must be rejected and the 26
formal part of the ballot paper must be counted under division 27
7. 28
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Division 7 Counting of votes 1
Subdivision 1 Processing declaration envelopes 2
89 Preliminary processing of declaration 3
envelopes--general 4
(1) This section applies to an election, other than a postal ballot 5
election. 6
(2) After 8a.m. on polling day, the returning officer may open all 7
ballot boxes containing only sealed declaration envelopes and 8
examine the envelopes to decide whether the ballot papers in 9
the envelopes are to be accepted for counting. 10
(3) As soon as practicable after 6p.m. on polling day, the 11
returning officer may open all other ballot boxes containing 12
sealed declaration envelopes and examine the envelopes to 13
decide whether the ballot papers in the envelopes are to be 14
accepted for counting. 15
(4) As soon as practicable after receipt by the returning officer of 16
a parcel of sealed declaration envelopes from a polling booth, 17
the returning officer may open the parcel and examine the 18
envelopes to decide whether the ballot papers in the envelopes 19
are to be accepted for counting. 20
90 Preliminary processing of declaration envelopes--postal 21
ballot election 22
(1) This section applies to a postal ballot election. 23
(2) After 8a.m. on the day before polling day, the returning 24
officer may open all ballot boxes and examine the declaration 25
envelopes to decide whether the ballot papers in the envelopes 26
are to be accepted for counting. 27
91 Procedure for processing declaration envelopes 28
(1) The returning officer must-- 29
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(a) inform all candidates for election of the times when, and 1
the places where, declaration envelopes will be 2
examined by the returning officer; and 3
(b) allow the candidates, or their scrutineers, to attend at the 4
processing of declaration envelopes. 5
(2) On examining the declaration envelopes, if the returning 6
officer is satisfied the declaration has been properly 7
completed, the envelope is sealed and the declarant on the 8
envelope is entitled to cast a vote, the returning officer must-- 9
(a) detach the elector's declaration from the envelope; and 10
(b) either-- 11
(i) place a mark in ink against the declarant's name on 12
the voters roll; or 13
(ii) if the voters roll is kept in an electronic 14
form--record in a way approved by the returning 15
officer that the declarant has voted; and 16
(c) place the envelope containing the ballot paper (the 17
accepted envelope) in a locked or sealed ballot box; and 18
(d) keep the accepted envelope in the ballot box until dealt 19
with under subsection (3) and section 95. 20
(3) The returning officer may take the accepted envelopes from 21
the locked or sealed ballot box and remove the ballot papers 22
from the envelopes, without unfolding them, or allowing 23
anyone else to unfold them, and keep them in a locked or 24
sealed ballot box until dealt with under section 95. 25
(4) The returning officer must-- 26
(a) put all ballot papers (not in declaration envelopes) that 27
are in a ballot box opened under section 89(3) into a 28
locked or sealed ballot box, without unfolding them, or 29
allowing anyone else to unfold them; and 30
(b) keep them there until they are dealt with in the official 31
counting of votes. 32
(5) If a declaration envelope is rejected, the returning officer must 33
set it aside in the officer's custody for separate identification. 34
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(6) The returning officer must seal up in separate parcels, and 1
keep in the officer's custody for separate identification, all 2
rejected declaration envelopes, accepted envelopes from 3
which ballot papers have been removed and elector's 4
declarations that have been removed from declaration 5
envelopes. 6
Subdivision 2 Preliminary counts 7
92 Preliminary counting of ordinary votes 8
(1) The presiding officer of a polling booth must follow, in order, 9
the procedures stated in subsections (3) to (11)-- 10
(a) as soon as practicable after the end of ordinary voting 11
hours for the polling booth; and 12
(b) at a place nominated by the officer; and 13
(c) in the presence of issuing officers and any candidates 14
and scrutineers who wish to attend. 15
(2) However, the presiding officer may do anything required 16
under subsections (3) to (10) through an issuing officer 17
authorised by the presiding officer for that purpose. 18
(3) Open all ballot boxes used at the polling booth. 19
(4) Identify, and keep in a separate parcel, all declaration 20
envelopes. 21
(5) Examine all ballot papers that are not in declaration 22
envelopes, and-- 23
(a) identify, and keep in a separate parcel, all informal 24
ballot papers; and 25
(b) if the system of voting is first-past-the-post 26
voting--count the number of votes for each candidate 27
marked on all formal ballot papers, and keep the ballot 28
papers in a separate parcel; and 29
(c) if the system of voting is optional-preferential 30
voting--arrange all formal ballot papers under the 31
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names of the candidates by putting in a separate parcel 1
all formal ballot papers on which a first-preference vote 2
is recorded for the same candidate. 3
(6) Prepare a written statement, in the approved form, that-- 4
(a) states in words and numerals-- 5
(i) if the system of voting is first-past-the-post 6
voting--the number of votes for each candidate; or 7
(ii) if the system of voting is optional-preferential 8
voting--the number of first-preference votes for 9
each candidate; and 10
(b) states the number of declaration envelopes and informal 11
ballot papers; and 12
(c) is signed by the presiding officer, and the issuing officer 13
and any scrutineers who are present and wish to sign. 14
(7) Seal up in separate parcels all formal and informal ballot 15
papers, declaration envelopes and unused ballot papers. 16
(8) Endorse on each parcel a description of its contents, sign the 17
endorsement and allow any scrutineers, who wish to do so, to 18
countersign the endorsement. 19
(9) Put the following into separate parcels and endorse on each 20
parcel a description of its contents-- 21
(a) the voters roll and all books and papers used by the 22
presiding officer in the poll with 1 copy of the statement 23
prepared under subsection (6); 24
(b) all ballot papers or remains of ballot papers set aside, 25
under section 85(2)(e) or (4)(d), for separate 26
identification. 27
(10) Endorse the following on each parcel, and sign each 28
endorsement-- 29
(a) the name of the local government area, or division of the 30
local government area, for which the election was held; 31
(b) the name of the polling booth from which the parcel has 32
come. 33
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(11) The presiding officer must, as soon as practicable, give each 1
of the following things to the returning officer or a person 2
nominated by the returning officer-- 3
(a) the parcels mentioned in subsections (3) to (10); 4
(b) a copy of the statement prepared under subsection (6), 5
other than the copy mentioned in subsection (9)(a); 6
(c) a reconciliation statement, in the approved form, for all 7
ballot papers given out at the polling booth and all votes 8
put in ballot boxes at the booth. 9
93 Objections by scrutineers during preliminary count 10
(1) If, while a presiding officer is complying with section 92(5), a 11
candidate or scrutineer objects to the treatment of a particular 12
ballot paper as informal, the officer must mark on the back of 13
it `formal' or `informal' according to whether the officer's 14
decision is to treat it as formal or informal. 15
(2) If, while a presiding officer is complying with section 92(5), a 16
candidate or scrutineer objects to the counting of a vote for a 17
particular candidate, the officer must mark on the back of the 18
relevant ballot paper the name of the candidate for whom it is 19
counted. 20
94 Receipt of things given to returning officer 21
(1) This section applies if the returning officer or another person 22
receives things from the presiding officer under section 23
92(11). 24
(2) The returning officer, or other person, must give a receipt for 25
the things to the presiding officer. 26
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Subdivision 3 Official count 1
95 Official counting of votes 2
(1) The returning officer must follow, in order, the procedures 3
stated in subsection (2) to (6)-- 4
(a) as soon as practicable after close of the poll in an 5
election; and 6
(b) in the presence of the candidates or scrutineers who 7
wish to attend. 8
(2) The returning officer must work out from the statements of 9
presiding officers under section 92(6)-- 10
(a) if the system of voting is first-past-the-post voting--the 11
number of votes cast for each candidate; or 12
(b) if the system of voting is optional-preferential 13
voting--the number of first-preference votes cast for 14
each candidate. 15
(3) The returning officer must-- 16
(a) open all sealed parcels of ballot papers given to the 17
returning officer under section 92(11) or sealed by the 18
returning officer if the returning officer conducted the 19
preliminary count under section 92; and 20
(b) examine all ballot papers that are not in declaration 21
envelopes and-- 22
(i) if the system of voting is first-past-the-post 23
voting--count the number of votes cast for each 24
candidate on formal ballot papers, and keep the 25
ballot papers in a separate parcel; or 26
(ii) if the system of voting is optional-preferential 27
voting--arrange all formal ballot papers under the 28
names of the candidates by putting in a separate 29
parcel the formal ballot papers on which a 30
first-preference vote is indicated for the same 31
candidate, and count the number of first-preference 32
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votes for each candidate on the formal ballot 1
papers. 2
(4) The returning officer must-- 3
(a) open all other ballot boxes on hand; and 4
(b) open all accepted envelopes mentioned in section 5
91(2)(d) that have not yet been opened and remove the 6
ballot papers; and 7
(c) identify, and keep in a separate parcel, all informal 8
ballot papers; and 9
(d) examine all formal ballot papers and-- 10
(i) if the system of voting is first-past-the-post 11
voting--count the number of votes cast for each 12
candidate on the ballot papers, and keep the ballot 13
papers in a separate parcel; or 14
(ii) if the system of voting is optional-preferential 15
voting--arrange the ballot papers under the names 16
of the candidates by putting in a separate parcel the 17
ballot papers on which a first-preference vote is 18
recorded for the same candidate, and count the 19
number of first-preference votes for each candidate 20
on the ballot papers. 21
(5) The returning officer must add together-- 22
(a) if the system of voting is first-past-the-post voting--the 23
number counted under subsections (3)(b)(i) and 24
(4)(d)(i); or 25
(b) if the system of voting is optional-preferential 26
voting--the number counted under subsections 27
(3)(b)(ii) and (4)(d)(ii). 28
(6) The returning officer must reapply subsections (4) and (5) as 29
more declaration envelopes are received by the returning 30
officer under section 72 after close of the poll. 31
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96 Objections by scrutineers during official count 1
(1) If, while the returning officer is complying with section 95, a 2
candidate or scrutineer objects to the treatment of a particular 3
ballot paper as informal, the officer must mark on the back of 4
it `formal' or `informal' according to whether the officer's 5
decision is to treat it as formal or informal. 6
(2) If, while the returning officer is complying with section 95, a 7
candidate or scrutineer objects to the counting of a vote for a 8
particular candidate, the officer must mark on the back of the 9
relevant ballot paper the name of the candidate for whom it is 10
counted. 11
Subdivision 4 Deciding results of local 12
government elections 13
97 Counting of votes for optional-preferential system 14
(1) This section applies for counting votes in an election in which 15
the system of voting is optional-preferential voting. 16
(2) If, after final counting under section 95, an absolute majority 17
of formal first-preference votes are for 1 candidate, that 18
candidate is elected. 19
(3) Alternatively, if there is no absolute majority of the formal 20
first-preference votes for 1 candidate, a further count 21
assigning preference votes must be conducted and, if 22
necessary, repeated until an absolute majority of the 23
remaining votes are for 1 candidate. 24
(4) For subsection (3), a further count assigning preference votes 25
is conducted by-- 26
(a) excluding the candidate with the fewest votes in a 27
previous count; and 28
(b) excluding all ballot papers on which there is not 29
recorded a preference vote for a candidate who has not 30
been excluded for the count or a previous count; and 31
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(c) assigning each preference vote recorded on the 1
remaining ballot papers to the candidate who-- 2
(i) is next in the order of an elector's preference on the 3
ballot paper; and 4
(ii) has not been excluded; and 5
(d) counting the number of votes (first-preference votes for 6
a candidate together with any preference votes assigned 7
to the candidate) for each candidate who has not been 8
excluded. 9
(5) If, after final counting under subsection (4), an absolute 10
majority of the votes remaining in the count are for 1 11
candidate, that candidate is elected. 12
(6) If subsection (4)(a) can not be applied because 2 or more 13
candidates (1 of whom must be excluded) have an equal 14
number of votes, the candidate to be excluded is-- 15
(a) if there has been an earlier count--the candidate who 16
had the fewest votes at the last count at which the 17
candidates did not have an equal number of votes; or 18
(b) if there has not been an earlier count or the candidates 19
had an equal number of votes at all earlier counts--the 20
candidate whose name is on a slip chosen under 21
subsection (7). 22
(7) For subsection (6)(b), the returning officer must, in the 23
presence of any candidates, or their representative, who wish 24
to attend-- 25
(a) write the names of the candidates who have an equal 26
number of votes on similar slips of paper; and 27
(b) fold the slips, concealing the names; and 28
(c) put the slips in an opaque container and shuffle them; 29
and 30
(d) raise the container so that its contents can not be seen 31
and choose a slip at random. 32
(8) If, under subsection (6), the candidates who have an equal 33
number of votes are the only candidates remaining in the 34
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count, then, despite subsection (6), the candidate whose name 1
is recorded under subsection (9)(g) is elected. 2
(9) The returning officer must, in the presence of 2 witnesses-- 3
(a) prepare a list of the candidates; and 4
(b) assign a different number or colour to each candidate; 5
and 6
(c) place only the marbles, balls or other similar things 7
(marbles), complying with subsection (10), in an 8
opaque container large enough to allow the marbles in it 9
to move about freely when it is rotated; and 10
(d) rotate the container and permit another person present 11
who wishes to do so to rotate it; and 12
(e) raise the container so that its contents can not be seen; 13
and 14
(f) while the container is raised, take 1 of the marbles out of 15
it or allow 1 of the marbles to come out of it; and 16
(g) record the name of the candidate assigned the numbered 17
or coloured marble that, under paragraph (f), is taken or 18
allowed to come out of the container. 19
(10) For subsection (9)(c), the marbles must be-- 20
(a) the same size and weight; and 21
(b) the same colours or numbers as the colours or numbers 22
assigned under subsection (9)(b) to the candidates. 23
(11) The returning officer must allow each of the 2 candidates, or 24
their representative, to be present for the process mentioned in 25
subsection (9). 26
(12) In this section-- 27
absolute majority means more than 50% of votes. 28
98 Counting of votes for first-past-the-post system 29
(1) This section applies for counting votes in an election in which 30
the system of voting is first-past-the-post voting. 31
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(2) If only 1 person is to be elected (as mayor or another 1
councillor), the candidate who receives the majority of votes 2
is elected. 3
(3) If subsection (2) can not be applied because 2 or more 4
candidates have an equal number of votes, the candidate 5
whose name is recorded under subsection (7)(g) is elected. 6
(4) If 2 or more persons are to be elected (as councillors)--the 7
candidates elected are-- 8
(a) the candidate who receives the majority of votes; and 9
(b) the candidates who receive the next highest number of 10
votes, up to the number of persons to be elected. 11
(5) If-- 12
(a) subsection (4) can not be applied because 2 or more 13
candidates (the tied candidates) have an equal number 14
of votes; and 15
(b) the number of tied candidates, together with any 16
candidates already elected under subsection (4), is more 17
than the number of persons to be elected; 18
the candidate whose name is recorded under subsection (7)(g) 19
is elected. 20
(6) To remove any doubt, it is declared that, if-- 21
(a) subsection (4) can not be applied there are tied 22
candidates; and 23
(b) the number of tied candidates, together with any 24
candidates already elected under subsection (4), is not 25
more than the number of persons to be elected; 26
the tied candidates are elected. 27
Example for subsection (6)-- 28
If three persons remain to be elected and the 2 candidates with the 29
highest number of votes have an equal number of votes, the candidates 30
are elected and then only 1 person would remain to be elected. 31
(7) The returning officer must, in the presence of 2 witnesses-- 32
(a) prepare a list of the candidates; and 33
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(b) assign a different number or colour to each candidate; 1
and 2
(c) place only the marbles, balls or other similar things 3
(marbles), complying with subsection (8), in an opaque 4
container large enough to allow the marbles in it to 5
move about freely when it is rotated; and 6
(d) rotate the container and permit another person present 7
who wishes to do so to rotate it; and 8
(e) raise the container so that its contents can not be seen; 9
and 10
(f) while the container is raised, take 1 of the marbles out of 11
it or allow 1 of the marbles to come out of it; and 12
(g) record the name of the candidate assigned the numbered 13
or coloured marble that, under paragraph (f), is taken or 14
allowed to come out of the container. 15
(8) For subsection (7)(c), the marbles must be-- 16
(a) the same size and weight; and 17
(b) the same colours or numbers as the colours or numbers 18
assigned under subsection (7)(b) to the candidates. 19
(9) The returning officer must allow each of the candidates, or 20
their representative, to be present for the process mentioned in 21
subsection (7). 22
99 Returning officer's duty after counting votes 23
(1) When the result of the poll for the election is known, the 24
returning officer must-- 25
(a) seal up all of the formal ballot papers, informal ballot 26
papers, rejected declaration envelopes, accepted 27
envelopes from which ballot papers have been removed, 28
electors' declarations that have been removed from 29
declaration envelopes, defaced ballot papers, remains of 30
destroyed ballot papers, unused ballot papers, books and 31
papers (other than the voters roll) of each presiding 32
officer used in the poll; and 33
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(b) endorse on each parcel a description of its contents and 1
sign the endorsement; and 2
(c) allow any scrutineers, who wish to do so, to countersign 3
the endorsement. 4
(2) The returning officer must then-- 5
(a) examine the voters rolls used in the election and marked 6
by issuing officers to ascertain whether any elector has 7
voted more than once; and 8
(b) make a list in the approved form of the names and 9
numbers on the voters roll of all electors who appear to 10
have voted more than once in the election, enclose the 11
original of the list with the voters rolls in a sealed up 12
parcel, and give a copy of the list to each person who 13
was a candidate in the election. 14
Division 8 Notifying the results of local 15
government elections etc. 16
100 Notifying the results of an election 17
(1) As soon as practicable after the result of a poll for an election 18
is known, the electoral commission must, by notice in the 19
approved form, declare-- 20
(a) the result of the poll; and 21
(b) the names of each candidate who has been elected. 22
(2) The electoral commission must-- 23
(a) ensure the notice is displayed in a conspicuous place in 24
the office of the returning officer; and 25
(b) publish the notice in a newspaper circulating generally 26
in the local government area, or the division of the local 27
government area, for which the election was held. 28
(3) The returning officer must ensure the notice is published on 29
the website of the local government for which the election 30
was held. 31
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(4) The electoral commission must not delay complying with 1
subsection (1) or (2) merely because some ballot papers have 2
not been received by the returning officer, if it is clear the 3
votes recorded on the ballot papers could not affect the result 4
of the election. 5
101 Notice of results of poll to candidates 6
The electoral commission must give notice of the final result 7
of the poll to each candidate as soon as practicable after-- 8
(a) all ballot papers used in the poll have been examined; 9
and 10
(b) all votes cast in the poll on ballot papers that appear to 11
be formal have been counted. 12
102 Storage and disposal of material resulting from election 13
(1) As soon as practicable after the electoral commission gives 14
notice of the final result of a poll for an election under section 15
101, the returning officer for the election must-- 16
(a) destroy all unused ballot papers; and 17
(b) seal up in packets all other parcels sealed up under 18
section 99; and 19
(c) endorse the following on each packet and sign the 20
endorsement-- 21
(i) a description of its contents; 22
(ii) the name of the local government area, or division 23
of a local government area, for which the election 24
was held; 25
(iii) the polling day; and 26
(d) give each packet to the electoral commission. 27
(2) The electoral commission must keep the packets in safe 28
custody until the next quadrennial election. 29
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(3) At the end of the period under subsection (2), the electoral 1
commission must-- 2
(a) destroy all ballot papers contained in the packets; and 3
(b) dispose of the other contents of the packets in the way 4
the commission considers appropriate. 5
103 Notice to electors whose ballot papers are not accepted 6
(1) This section applies if-- 7
(a) in an election, a person casts a vote in the election and 8
completes a declaration envelope for the vote; and 9
(b) the person's ballot paper is not accepted for counting 10
under section 91 because the returning officer is not 11
satisfied that the declarant on the declaration envelope is 12
entitled to cast a vote in the election. 13
(2) As soon as practicable after the election, the electoral 14
commission must send a notice in the approved form to the 15
person advising the person why the ballot paper was not 16
accepted for counting. 17
104 Notice to electoral commission of error in electoral roll 18
As soon as practicable after an election, the returning officer 19
must give to the electoral commission notice of the names and 20
addresses of all persons permitted to vote at the election 21
whose names are not on the voters roll, apparently because of 22
official error, if the error relates to the keeping of an electoral 23
roll under the Electoral Act 1992. 24
Part 5 Fresh elections 25
105 Arrangements for fresh election 26
(1) This section applies if-- 27
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(a) under the Local Government Act 2009, section 123(3) a 1
regulation directs that a fresh election of councillors of a 2
local government be held; or 3
Note-- 4
The direction under the Local Government Act 2009, section 5
123(3) may be given only after the ratification of the dissolution 6
of the local government by the Legislative Assembly. 7
(b) a regulation directs that a fresh election of councillors of 8
a local government, or a division of a local government, 9
be held to implement a local government change under 10
the Local Government Act 2009, chapter 2, part 3. 11
(2) The day on which a fresh election is to be held must be a 12
Saturday. 13
(3) The provisions of part 4 apply, with all necessary changes and 14
any changes prescribed by regulation, to the fresh election as 15
if the election were a quadrennial election. 16
Part 6 Electoral funding and financial 17
disclosure 18
Division 1 Preliminary 19
106 Definitions for pt 6 20
In this part-- 21
candidate's disclosure period means the disclosure period 22
applying to the candidate under division 2, subdivision 1. 23
gift see section 107(1) and (2). 24
gifts register see section 128(1). 25
group's disclosure period means the disclosure period for the 26
group of candidates under section 116. 27
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person acting on behalf of a candidate see section 111(1). 1
person acting on behalf of a group of candidates see section 2
111(2). 3
political activity means any of the following-- 4
(a) publication by any means (including radio or television) 5
of election material; 6
(b) public expression of views on an issue in an election; 7
(c) a gift to a political party; 8
(d) a gift to a candidate in an election; 9
(e) a gift to a person on the understanding that the person or 10
someone else will apply, either directly or indirectly, the 11
whole or a part of the gift for a purpose mentioned in 12
paragraph (a), (b), (c) or (d). 13
registered industrial organisation means an organisation 14
registered under a law of the State, another State or the 15
Commonwealth about the registration of industrial 16
organisations. 17
relevant details, for a gift, see section 109. 18
third party see section 123. 19
value, of a gift, see section 108. 20
107 Meaning of gifts 21
(1) A gift is-- 22
(a) the disposition of property or the provision of a service, 23
without consideration or for a consideration that is less 24
than the market value, but does not include-- 25
(i) transmission of property under a will; or 26
(ii) provision of a service by volunteer labour; or 27
(b) payment for attendance at or participation in a 28
fundraising activity. 29
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(2) However, the disposition of property or provision of a service 1
to a candidate is not a gift if it is made in a private capacity, 2
for the candidate's personal use, and the candidate does not 3
use, and does not intend to use, it solely or substantially for a 4
purpose related to any election. 5
(3) In this section-- 6
disposition of property means a conveyance, transfer, 7
assignment, settlement, delivery, payment or other alienation 8
of property, including, for example-- 9
(a) the allotment of shares in a corporation; and 10
(b) the creation of a trust in property; and 11
(c) the grant or creation of a lease, mortgage, charge, 12
servitude, licence, power, partnership or interest in 13
property; and 14
(d) the release, discharge, surrender, forfeiture or 15
abandonment, at law or in equity, of a debt, contract or 16
chose in action, or of an interest in property; and 17
(e) the exercise by a person of a general power of 18
appointment of property in favour of someone else; and 19
(f) a transaction by a person with intent to diminish, 20
directly or indirectly, the value of the person's own 21
property and to increase the value of someone else's 22
property. 23
108 Meaning of value of gifts 24
The value, of a gift, is-- 25
(a) if the gift is money--the amount of money; or 26
(b) if the gift is property other than money-- 27
(i) the market value of the property; or 28
(ii) if a regulation prescribes principles under which 29
the value of the property is to be decided--the 30
value decided under the principles; or 31
(c) if the gift is the provision of a service-- 32
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(i) the amount that would reasonably be charged for 1
providing the service if the service were provided 2
on a commercial basis; or 3
(ii) if a regulation prescribes principles under which 4
the amount that would reasonably be charged for 5
providing the service is to be decided--the amount 6
decided under the principles; and 7
(d) if the gift is a payment for attendance at, or participation 8
in, a fundraising activity--the gross amount of the 9
payment, regardless of the value of anything received in 10
consideration for the payment. 11
109 Meaning of relevant details for gifts 12
The relevant details, for a gift, are the value of the gift and 13
when the gift was made and-- 14
(a) for a gift purportedly made on behalf of the members of 15
an unincorporated association-- 16
(i) the association's name; and 17
(ii) unless the association is a registered industrial 18
organisation--the names and residential or 19
business addresses of the members of the executive 20
committee, however described, of the association; 21
or 22
(b) for a gift purportedly made out of a trust fund or out of 23
the funds of a foundation-- 24
(i) the names and residential or business addresses of 25
the trustees of the fund or other persons 26
responsible for the funds of the foundation; and 27
(ii) the title or other description of the trust fund or the 28
name of the foundation; and 29
(iii) if the gift is made out of a trust account of a lawyer 30
or accountant under the instructions of a person 31
who is in substance the giver of the gift--the name 32
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and residential or business address of the person; 1
or 2
(c) for a gift not mentioned in paragraph (a) or (b)--the 3
name and residential or business address of the person 4
who gave the gift. 5
110 References to candidates 6
A person who is a candidate in an election is taken, for this 7
part, to remain a candidate for the entire period of the 8
candidate's disclosure period for the election. 9
111 Agents and campaign committees 10
(1) A person acting on behalf of a candidate includes a 11
committee formed to help the candidate's election campaign 12
in an election but does not include a committee that is 13
recognised by a political party as forming part of the political 14
party. 15
(2) A person acting on behalf of a group of candidates includes 16
a committee formed to help the election campaign of 17
members of the group in an election. 18
112 Related corporations 19
For this part-- 20
(a) a body corporate and any other body corporate related to 21
it are taken to be the 1 body corporate; and 22
(b) whether a body corporate is related to another body 23
corporate must be decided in the same way a body 24
corporate is decided to be related to another body 25
corporate under the Corporations Act. 26
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Division 2 Disclosure periods 1
Subdivision 1 Disclosure period for candidates 2
113 Disclosure period for candidates who are councillors 3
(1) This section applies to a candidate for an election if the 4
candidate is a councillor of a local government when 5
nominating as a candidate for the election. 6
(2) The candidate's disclosure period for the election-- 7
(a) starts the day the candidate was most recently elected or 8
appointed a councillor; and 9
(b) ends 30 days after the conclusion of the election. 10
Example-- 11
If the conclusion of the election was 31 March, the disclosure period 12
ends at the end of 30 April. 13
114 Disclosure period for candidates who were previously 14
candidates in a local government election 15
(1) This section applies to a candidate for an election (the current 16
election) if, within 5 years before the polling day for the 17
current election, the candidate was a candidate for another 18
election (a previous election). 19
(2) However, this section does not apply to the candidate if 20
section 113 applies to the candidate. 21
(3) The candidate's disclosure period for the current election-- 22
(a) starts 30 days after the conclusion of the most recently 23
held election for which the candidate was also a 24
candidate; and 25
Example-- 26
If the conclusion of the most recently held election was 15 March, the 27
disclosure period would start at the beginning of 15 April. 28
(b) ends 30 days after the conclusion of the current election. 29
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Example-- 1
If the conclusion of the current election was 31 March, the disclosure 2
period ends at the end of 30 April. 3
115 Disclosure period for new candidates 4
(1) This section applies to a candidate for an election if section 5
113 or 114 does not apply to the candidate. 6
(2) The candidate's disclosure period for the election-- 7
(a) starts the day the first of the following happens or, if 8
they happen at the same time, when they happen-- 9
(i) the person announces the person is to be a 10
candidate in the election; 11
(ii) the person nominates as a candidate in the election; 12
and 13
(b) ends 30 days after the conclusion of the election. 14
Example-- 15
If the conclusion of the election was 31 March, the disclosure period 16
ends at the end of 30 April. 17
Subdivision 2 Disclosure period for groups of 18
candidates 19
116 Disclosure period for groups of candidates 20
The disclosure period, for an election (the current election), 21
for a group of candidates is the period-- 22
(a) starting 30 days after the conclusion of the most recent 23
quadrennial elections to have been held before the 24
current election; and 25
Example-- 26
If the conclusion of the most recently held quadrennial election was 15 27
March, the disclosure period would start at the beginning of 15 April. 28
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(b) ending 30 days after the conclusion of the current 1
election. 2
Example-- 3
If the conclusion of the election was 31 March, the disclosure period 4
ends at the end of 30 April. 5
Division 3 Disclosure by candidates 6
117 Gifts to candidates 7
(1) A candidate for an election, other than a candidate who is a 8
member of a group of candidates for the election, must, within 9
15 weeks after the conclusion of the election, give the 10
electoral commission a return about gifts. 11
(2) The return under subsection (1) must be in the approved form 12
and state-- 13
(a) whether the candidate, or a person acting on behalf of 14
the candidate, received any gifts during the candidate's 15
disclosure period for the election; and 16
(b) if so-- 17
(i) the total value of all the gifts; and 18
(ii) how many persons made the gifts; and 19
(iii) the relevant details for each gift made by a person 20
to the candidate, if the total value of all gifts made 21
by the person to the candidate during the 22
candidate's disclosure period is $200 or more. 23
(3) A candidate need not comply with subsection (1) if-- 24
(a) the candidate-- 25
(i) gives a return, in the approved form, to the 26
electoral commission before making the 27
declaration of office under the Local Government 28
Act 2009, section 169 and the return states the 29
candidate-- 30
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(A) does not expect to receive gifts in the 1
candidate's disclosure period for the election 2
after giving the return; and 3
(B) will give a return under this section if gifts 4
are received during the candidate's 5
disclosure period for the election after giving 6
the return; and 7
(ii) does not receive gifts during the candidate's 8
disclosure period for the election after giving the 9
return; or 10
(b) the candidate is a member of a group of candidates to 11
which section 118 applies and the group's agent has 12
complied with that section. 13
(4) If the electoral commission receives a return under subsection 14
(1) from a candidate who is successful in an election, the 15
electoral commission must give a copy of the return to the 16
chief executive officer of the local government for which the 17
election was held. 18
118 Gifts to groups of candidates 19
(1) This section applies if a member of a group of candidates, or a 20
person acting on behalf of the group, receives a gift for the 21
election during the group's disclosure period for the election. 22
(2) The group's agent must, within 15 weeks after the conclusion 23
of the election, give the electoral commission a return about 24
the gifts. 25
(3) The return under subsection (2) must be in the approved form 26
and state-- 27
(a) the names of the candidates forming the group; and 28
(b) the name, if any, of the group; and 29
(c) the total value of all of the gifts made to members of the 30
group; and 31
(d) how many persons made the gifts; and 32
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(e) the relevant details for each gift made by a person to the 1
group if the total value of all gifts made by the person to 2
the group during the group's disclosure period is $200 3
or more. 4
(4) The agent need not comply with subsection (2) if-- 5
(a) each candidate who is a member of the group gives a 6
return, in the approved form, to the electoral 7
commission before making the declaration of office 8
under the Local Government Act 2009, section 169 and 9
the return states-- 10
(i) the candidate does not expect the group to receive 11
further gifts during the group's disclosure period 12
for the election after giving the return; and 13
(ii) the group's agent will give a return under this 14
section if further gifts are received during the 15
group's disclosure period for the election after 16
giving the return; and 17
(b) the group does not receive further gifts during the 18
group's disclosure period for the election after giving 19
the return. 20
(5) If the electoral commission receives a return under subsection 21
(2) from the agent of a group of candidates, any of whom are 22
successful in an election, the electoral commission must give 23
a copy of the return to the chief executive officer of the local 24
government for which the election was held. 25
119 Particular gifts not to be received 26
(1) A candidate for an election, or a person acting on behalf of the 27
candidate, must not, during the candidate's disclosure period 28
for the election, receive a prescribed gift made to, or for the 29
benefit of, the candidate unless-- 30
(a) the relevant details for the gift are known to the person 31
receiving the gift; or 32
(b) when the gift is made-- 33
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(i) the entity giving the gift gives to the person 1
receiving the gift details of the gift; and 2
(ii) the person receiving the gift has no reasonable 3
grounds to believe that the details given are not the 4
correct relevant details for the gift. 5
(2) A group of candidates for an election, or a person acting on 6
behalf of the group, must not, during the group's disclosure 7
period for the election, receive a prescribed gift made to, or 8
for the benefit of, the group of candidates unless-- 9
(a) the relevant details for the gift are known to the group or 10
person receiving the gift; or 11
(b) when the gift is made-- 12
(i) the entity making the gift gives the group or person 13
receiving the gift details of the gift; and 14
(ii) the group or person receiving the gift has no 15
reasonable grounds to believe that the details given 16
are not the correct relevant details for the gift. 17
(3) If a person or group receives a gift in contravention of this 18
section, an amount equal to the value of the gift-- 19
(a) is payable by the person or group to the State; and 20
(b) may be recovered by the State as a debt owing to the 21
local government. 22
(4) For this section, 2 or more gifts made by the same person to, 23
or for the benefit of, a candidate or group of candidates, are 24
taken to be 1 gift. 25
(5) In this section-- 26
prescribed gift means a gift with a value of at least $200. 27
120 Loans to candidates or groups of candidates 28
(1) A candidate must, within 15 weeks after the conclusion of an 29
election, give the electoral commission a return about all loans 30
received by the candidate from a person, other than a financial 31
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institution, during the candidate's disclosure period for the 1
election. 2
(2) The agent for a group of candidates must, within 15 weeks 3
after the conclusion of an election, give the electoral 4
commission a return about all loans received by the group 5
from a person, other than a financial institution, during the 6
group's disclosure period for the election. 7
(3) A return under subsection (1) or (2) must be in the approved 8
form and state-- 9
(a) the total value of the loans; and 10
(b) the number of persons who made the loans. 11
(4) Also, the return must state the following for each loan with a 12
value of $200 or more-- 13
(a) the date on which the loan was made; 14
(b) for a loan from the members of an unincorporated 15
association-- 16
(i) the association's name; and 17
(ii) unless the association is a registered industrial 18
organisation--the names and residential or 19
business addresses of the members of the executive 20
committee, however described, of the association; 21
(c) for a loan purportedly made out of a trust fund or out of 22
the funds of a foundation-- 23
(i) the names and residential or business addresses of 24
the trustees of the fund or other persons 25
responsible for the funds of the foundation; and 26
(ii) the title or other description of the trust fund or the 27
name of the foundation; and 28
(iii) if the loan is made out of a trust account of a 29
lawyer or accountant under the instructions of a 30
person who is in substance the lender--the name 31
and residential or business address of the person; 32
(d) if neither paragraph (b) nor (c) apply to the loan--the 33
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name and residential or business address of the person 1
who made the loan; 2
(e) the terms of the loan. 3
121 Particular loans not to be received 4
(1) A candidate for an election, or person acting on behalf of the 5
candidate, must not receive a loan of $200 or more from a 6
person, other than a financial institution, during the 7
candidate's disclosure period for the election unless the 8
candidate or person keeps a record of the loan. 9
(2) A group of candidates for an election, or person acting on 10
behalf of the group of candidates, must not receive a loan of 11
$200 or more from a person, other than a financial institution, 12
during the group's disclosure period for the election unless the 13
group or person keeps a record of the loan. 14
(3) The record under subsection (1) or (2) must state the 15
following-- 16
(a) the terms of the loan; 17
(b) if the loan was received from a registered industrial 18
organisation other than a financial institution-- 19
(i) the name of the organisation; and 20
(ii) the names and addresses of the members of the 21
executive committee, however described, of the 22
organisation; 23
(c) if the loan was received from an unincorporated 24
association-- 25
(i) the name of the association; and 26
(ii) unless the association is a registered industrial 27
organisation--the names and residential or 28
business addresses of the members of the executive 29
committee, however described, of the association; 30
(d) if the loan was paid out of a trust fund or out of the 31
funds of a foundation-- 32
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(i) the names and residential or business addresses of 1
the trustees of the fund or other persons 2
responsible for the funds of the foundation; and 3
(ii) the title or other description of the trust fund, or the 4
name of the foundation; and 5
(iii) if the loan is made out of a trust account of a 6
lawyer or accountant under the instructions of a 7
person who is in substance the lender--the name 8
and residential or business address of the lender; 9
(e) if none of paragraphs (b), (c) and (d) applies--the name 10
and residential or business address of the person. 11
(4) If a candidate, group or person receives a loan in 12
contravention of subsection (1) or (2), an amount equal to the 13
amount or value of the loan-- 14
(a) is payable by the candidate, group or person to the State; 15
and 16
(b) may be recovered by the State from the candidate, group 17
or person as a debt. 18
122 Electoral commission to give reminder notice to 19
candidates 20
(1) The electoral commission must, within 10 weeks after the 21
conclusion of an election, give written notice to a candidate or 22
agent for a group of candidates if-- 23
(a) the candidate has not given the return the candidate is 24
required, under section 117(1), to give the electoral 25
commission for the election; or 26
(b) the agent has not given the return the agent is required, 27
under section 118(1), to give the electoral commission 28
for the election. 29
(2) The notice must state-- 30
(a) the candidate is required to give the return within 15 31
weeks after the conclusion of the election; and 32
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(b) the following provisions, or a general outline of them, to 1
the extent they may be relevant to the candidate-- 2
· the Local Government Act 2009, section 153 and 3
the City of Brisbane Act 2010, section 153 4
· section 40(2) 5
· section 117 6
· section 118 7
· section 120 8
· section 195 9
· section 197. 10
(3) To remove any doubt, it is declared that-- 11
(a) this section does not apply because of subsection (1)(a) 12
if, under section 117(3), the candidate is not required to 13
give the return. 14
(b) this section does not apply because of subsection (1)(b) 15
if, under section 118(3), the agent is not required to give 16
the return. 17
Division 4 Disclosure by third parties 18
123 Definition for div 4 19
In this division-- 20
third party, for an election, means any entity other than-- 21
(a) a political party, an associated entity or a candidate; or 22
(b) persons appointed to form a committee to help the 23
election campaign of a candidate who has been 24
nominated for election by the registered officer of a 25
registered political party, if the committee is recognised 26
by the political party as forming part of the political 27
party; or 28
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(c) a person who is a member of a committee for the 1
election of a candidate or members of a group of 2
candidates for the election. 3
124 Third party expenditure for political activity 4
(1) This section applies to a third party for an election if-- 5
(a) the third party incurs expenditure for a political activity 6
relating to the election during the disclosure period for 7
the election; and 8
(b) the total amount of all the third party's expenditure for 9
the political activities during the disclosure period is 10
$200 or more. 11
(2) The third party must, within 15 weeks after the conclusion of 12
the election, give the electoral commission a return about the 13
expenditure. 14
(3) The return under subsection (2) must be in the approved form 15
and state the following details about the expenditure-- 16
(a) the total value of the expenditure; 17
(b) when the expenditure was incurred; 18
(c) the particular purpose of the expenditure. 19
(4) For subsection (1), a third party that incurs expenditure for a 20
political activity relating to 2 or more elections is taken to 21
have incurred expenditure for a political activity relating to 22
each election. 23
(5) In this section-- 24
disclosure period, for an election, means the period-- 25
(a) starting on the day after the day the returning officer 26
publishes notice of the election in a newspaper under 27
section 25; and 28
(b) ending at 6p.m. on the polling day for the election. 29
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125 Gifts received by third parties to enable expenditure for 1
political activity 2
(1) This section applies-- 3
(a) to a gift-- 4
(i) intended by the person who gives it to be used by 5
the person who receives it (the receiver), either 6
wholly or in part, to enable the receiver to incur 7
expenditure for a political purpose or to reimburse 8
the receiver for incurring expenditure for a political 9
purpose; and 10
(ii) the value of which is $1000 or more; and 11
(b) if a third party for an election-- 12
(i) receives the gift during the disclosure period for 13
the election; and 14
(ii) applies the gift, either wholly or in part, to a 15
political activity relating to the election. 16
(2) The third party who receives the gift must, within 15 weeks 17
after the conclusion of the election, give the electoral 18
commission a return about the gift. 19
(3) The return under subsection (2) must be in the approved form 20
and state the relevant details for all gifts received by the third 21
party during the disclosure period for the election. 22
(4) For subsection (1)(a)(ii), 2 or more gifts made to a third party, 23
during the disclosure period for an election, by the same 24
person are taken to be 1 gift. 25
(5) In this section-- 26
disclosure period, for an election (the current election), 27
means the period-- 28
(a) starting 30 days after the polling day for the most recent 29
quadrennial elections to have been held before the 30
current election; and 31
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Example-- 1
If the polling day for the most recently held quadrennial election was 15 2
March, the disclosure period would start at the beginning of 15 April. 3
(b) ending 30 days after the polling day for the current 4
election. 5
Example-- 6
If the polling day for the election was 31 March, the disclosure period 7
would end at the end of 30 April. 8
Division 5 Operation of accounts 9
126 Requirement for candidate to operate dedicated account 10
(1) This section applies to a candidate for an election. 11
(2) The candidate must operate an account with a financial 12
institution if the candidate receives an amount mentioned in 13
subsection (3) or pays an amount mentioned in subsection (4). 14
(3) All amounts received by the candidate, or a person on behalf 15
of the candidate, during the candidate's disclosure period for 16
the election for the conduct of the candidate's election 17
campaign, including all gifts received by the candidate for the 18
election, and all amounts received as loans to the candidate, 19
must be placed in the account. 20
(4) All amounts paid by the candidate, or a person on behalf of 21
the candidate, during the candidate's disclosure period for the 22
election for the conduct of the candidate's election campaign 23
must be paid out of the account. 24
(5) The account must not be used other than for receiving and 25
paying amounts under subsections (3) and (4). 26
(6) The candidate must take all reasonable steps to ensure the 27
requirements of subsections (2) to (5) are complied with. 28
Maximum penalty for subsection (6)--100 penalty units. 29
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(7) Amounts mentioned in subsections (3) and (4) do not include 1
amounts received or paid out by a group of candidates for the 2
election of which the candidate is a member. 3
127 Requirement for group of candidates to operate 4
dedicated account 5
(1) This section applies if a candidate is a member of a group of 6
candidates for an election. 7
(2) The group must operate an account with a financial institution 8
if the group receives an amount mentioned in subsection (3) 9
or pays an amount mentioned in subsection (4). 10
(3) All amounts received by the group, or a person on behalf of 11
the group, during the group's disclosure period for the 12
election for the conduct of the group's election campaign, 13
including all gifts received by the group for the election, and 14
all amounts received as loans to the group, must be placed in 15
the account. 16
(4) All amounts paid by the group, or a person on behalf of the 17
group, during the group's disclosure period for the election for 18
the conduct of the group's election campaign must be paid out 19
of the account. 20
(5) The account must not be used other than for receiving and 21
paying amounts under subsections (3) and (4). 22
(6) Each candidate who is a member of the group must take all 23
reasonable steps to ensure the requirements of subsections (2) 24
to (5) are complied with. 25
Maximum penalty for subsection (6)--100 penalty units. 26
Division 6 Gifts register 27
128 Register of gifts 28
(1) The electoral commission must keep a register of gifts for an 29
election (the gifts register). 30
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(2) The gifts register must include the following-- 1
(a) all returns given to the electoral commission under this 2
part; 3
(b) applications made to the electoral commission under 4
section 132; 5
(c) copies of information given by the electoral commission 6
under section 130(2); 7
(d) statutory declarations given to the electoral commission 8
under section 130(5); 9
(e) copies of notices given by the electoral commission 10
under section 131(2); 11
(f) particulars given to the electoral commission after a 12
request made under section 131(2); 13
(g) notices given to the electoral commission under section 14
198(2). 15
129 Access to gifts register 16
(1) The electoral commission must ensure that the public may 17
inspect the gifts register-- 18
(a) at the commission's public office; and 19
(b) on the commission's website. 20
(2) A person must not knowingly disclose information obtained 21
from the register if it is not a true copy, or a fair summary, of 22
particulars in the register. 23
Maximum penalty for subsection (2)--20 penalty units. 24
130 Queries on contents of gifts register 25
(1) A person who suspects or believes, on reasonable grounds, 26
that a return given to the electoral commission under this part 27
has an error or omission may, in writing, inform the electoral 28
commission of the suspicion or belief. 29
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(2) The electoral commission must immediately, after being 1
informed under subsection (1), take reasonable steps to 2
inform, in writing, the person who gave the return about the 3
suspicion or belief. 4
(3) The person who gave the return must, within 30 days after 5
being informed under subsection (2), establish whether the 6
return should be amended to make it a true record of fact. 7
(4) If the person establishes that the return should be amended, 8
the person must apply, under section 132, to the electoral 9
commission to amend the return to correct the error or 10
omission. 11
(5) If the person establishes the return does not need to be 12
amended, the person must-- 13
(a) complete a statutory declaration to the effect that the 14
particulars in the return are a true record of fact; and 15
(b) give the statutory declaration to the electoral 16
commission. 17
Division 7 Miscellaneous 18
131 Statement about returns 19
(1) A person who gives a return under this part must state on the 20
return whether it is complete as required by this part and, if 21
not complete, state-- 22
(a) the nature and type of particulars the person has not 23
been able to obtain; and 24
(b) the reasons why the person has not been able to obtain 25
the particulars; and 26
(c) if the person believes, on reasonable grounds, that 27
another person whose name and address the person 28
knows can give the particulars--that belief and the 29
reasons for it and the name and address of the other 30
person. 31
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Part 6 Electoral funding and financial disclosure
[s 132]
(2) If a return under this part contains a statement mentioned in 1
subsection (1)(c), the electoral commission must give a 2
written notice to the person named in the statement asking the 3
person to give the returning officer the particulars the person 4
knows. 5
132 Amendment of returns 6
(1) A person who has given a return under this part to the 7
electoral commission may at any time apply to the electoral 8
commission to amend the return to correct an error or 9
omission. 10
(2) The application under subsection (1) must-- 11
(a) be signed by the applicant; and 12
(b) state the particulars of the amendment. 13
(3) The electoral commission must-- 14
(a) allow the applicant to amend the return as stated in the 15
application; and 16
(b) record in the gifts register particulars of the date and 17
time of the amendment. 18
(4) The amendment of a return under this section does not affect 19
the liability of a person to be convicted of an offence under 20
section 195(2) committed before the amendment. 21
133 Things taken to be done by political party 22
(1) This section applies to a political party that is not a body 23
corporate. 24
(2) For this part, things done by or with the authority of members 25
or officers of the party on behalf of the party are done by or 26
for the political party. 27
134 Noncompliance with part does not affect election 28
(1) A failure of a person to comply with a provision of this part 29
for an election does not invalidate the election. 30
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Part 7 Disputed results
[s 135]
(2) Without limiting subsection (1), if a candidate who is elected 1
at an election fails to comply with a provision of this part for 2
the election, the failure does not invalidate the election of the 3
candidate. 4
Note-- 5
A conviction of an offence under this part may disqualify a person from 6
being a councillor. See the Local Government Act 2009, section 153(3) 7
and the City of Brisbane Act 2010, section 153(3). 8
Part 7 Disputed results 9
Division 1 Disputing local government 10
elections 11
135 Definitions for div 1 12
In this division-- 13
applicant means a person who files an application. 14
application means an application about disputing an election 15
under section 138. 16
136 Local government election may be disputed under this 17
part 18
(1) The election of a person under this Act may be disputed by an 19
application to the Court of Disputed Returns under this part. 20
(2) The election may not be disputed in any other way. 21
137 Who may dispute an election 22
An election may be disputed by-- 23
(a) a candidate in the division, if any, of the local 24
government for which the election is held; or 25
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[s 138]
(b) an elector in the division, if any, of the local government 1
for which the election is held; or 2
(c) the electoral commission; or 3
(d) a person who the returning officer decided, under 4
section 28, was not properly nominated for the election. 5
138 Requirements for an application to be effective 6
(1) An application must-- 7
(a) state the facts relied on to dispute the election; and 8
(b) state the order sought from the court; and 9
(c) be signed by-- 10
(i) for an application by the electoral 11
commission--the electoral commissioner; or 12
(ii) otherwise--the applicant before a witness; and 13
(d) if paragraph (c)(ii) applies--contain the signature, 14
occupation and address of the witness. 15
(2) The applicant must-- 16
(a) file the application with the Supreme Court registry in 17
Brisbane within 7 days after the conclusion of the 18
election to which the application relates; and 19
(b) when filing the application, deposit $400 with the court. 20
(3) Subsection (1) does not stop the amendment of an application. 21
139 Copies of application to be given to elected candidate 22
and electoral commission 23
The registrar of the Supreme Court must give a copy of an 24
application filed under section 138(2) to-- 25
(a) the successful candidate in the election to which the 26
application relates; and 27
(b) the electoral commission, unless the electoral 28
commission filed the application. 29
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[s 140]
140 Application to court for order relating to documents etc. 1
(1) An applicant may apply to the Court of Disputed Returns for 2
an order requiring the electoral commission or a returning 3
officer to give the court stated documents or other things held 4
by the electoral commission or a returning officer that relate 5
to an election. 6
(2) The court may make the order about an application it 7
considers appropriate. 8
141 Parties to application 9
(1) The parties to an application are the person who filed it and 10
any respondent under this section. 11
(2) The electoral commission is a respondent to any application 12
filed by another person under this division. 13
(3) The successful candidate in an election to which an 14
application relates is a party to the application if the 15
candidate, within 7 days after receiving a copy of the 16
application under section 139, files a notice with the Supreme 17
Court registry in Brisbane stating that the candidate wishes to 18
be a respondent. 19
142 How application is to be dealt with by the court 20
(1) The Court of Disputed Returns may conduct hearings and 21
other proceedings for an application. 22
(2) The court is not bound by technicalities, legal forms or rules 23
of evidence. 24
(3) The court must deal with an application as quickly as is 25
reasonable in the circumstances. 26
(4) In giving effect to subsection (3), the court must use its best 27
efforts to ensure that-- 28
(a) the proceeding begins within 28 days after the 29
application is filed; and 30
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[s 143]
(b) the court's final orders are given within 14 days after the 1
end of the proceeding. 2
(5) Despite subsections (3) and (4), the court must give all parties 3
to the proceeding at least 10 days notice before it begins the 4
proceeding. 5
(6) The rules of court of the Supreme Court may include 6
provision, not inconsistent with this division, about the 7
practices and procedures of the Court of Disputed Returns. 8
(7) Without limiting subsection (6), the rules of court may make 9
provision about the withdrawal of applications, the 10
consequences of the death of applicants and the substitution of 11
applicants in these circumstances. 12
143 Application for dismissal of application disputing 13
election 14
(1) The electoral commission may apply to the Court of Disputed 15
Returns for an order dismissing an application on the ground 16
that there has been excessive delay by the applicant in relation 17
to the application. 18
(2) The court may make the order on the application under 19
subsection (1) that the court considers appropriate. 20
144 Powers of the court 21
(1) Subject to sections 145 and 146, the Court of Disputed 22
Returns may make any order or exercise any power relating to 23
an application that the court considers just and equitable. 24
(2) The orders may include any of the following-- 25
(a) an order to the effect that a candidate elected at an 26
election is taken not to have been elected; 27
(b) an order to the effect that a new election must be held; 28
(c) an order to the effect that a candidate, other than the one 29
elected at an election, is taken instead to have been 30
elected; 31
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[s 145]
(d) an order to dismiss or uphold an application in whole or 1
part. 2
(3) To remove doubt, it is declared that the court may order the 3
opening of a sealed declaration envelope. 4
(4) However, the court must ensure, as far as is reasonably 5
practicable, the secrecy of a ballot is maintained. 6
145 Restrictions on particular orders 7
(1) The Court of Disputed Returns must not make an order 8
mentioned in section 144(2) because of a delay in-- 9
(a) the announcement of nominations under section 32; or 10
(b) complying with the requirements of part 4, division 5, 6 11
or 7. 12
(2) Also, the court must not make an order under section 144(2) 13
(other than an order to dismiss the application)-- 14
(a) because of an absence or error of, or omission by, any 15
member of the electoral commission's staff that appears 16
unlikely to have had the effect that a candidate elected at 17
an election would not have been elected; or 18
(b) because incorrect information an elector gives to an 19
issuing officer is written on a declaration envelope the 20
elector signed. 21
(3) In deciding whether the requirements of subsection (2) are 22
met, the court must not, if it finds that an elector was 23
prevented from voting at an election by absence, error or 24
omission, take into account any evidence of the way in which 25
the elector had intended to vote. 26
(4) The court must not make an order mentioned in section 144(2) 27
because-- 28
(a) the names of candidates were not stated on a ballot 29
paper in the order required by section 55(2); or 30
(b) a name or other word that was required by section 31
55(1)(f) to be printed on a ballot paper adjacent to a 32
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[s 146]
candidate's name was not so printed or was misspelt, 1
inaccurate or incorrect; or 2
(c) a name or other word that was not authorised by section 3
55(1)(f) was printed on a ballot paper adjacent to a 4
candidate's name. 5
146 Restriction on particular evidence and inquiries 6
(1) In a proceeding for an application, the Court of Disputed 7
Returns must not take into account evidence by any person 8
that the person was not permitted to vote during voting hours 9
for a polling booth, unless the court is satisfied that, so far as 10
the person was permitted to do so, the person did everything 11
required by this Act to enable the person to vote. 12
(2) In a proceeding in relation to an application, the court-- 13
(a) may inquire whether persons voting were enrolled on 14
the voters roll for the local government or division of a 15
local government area concerned and whether votes 16
were correctly treated as formal or informal during the 17
counting of votes; but 18
(b) must not inquire whether the voters roll, or any copy 19
used at an election, was in accordance with this Act. 20
147 Copy of final court orders 21
The registrar of the Supreme Court must arrange for a copy of 22
the Court of Disputed Returns's final orders to be sent to the 23
Minister, the electoral commission and the local government 24
to which the appeal relates as soon as practicable after they 25
are made. 26
148 Costs 27
(1) The Court of Disputed Returns may order an unsuccessful 28
party to an application to pay the reasonable costs of the other 29
parties to the application. 30
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[s 149]
(2) If costs are awarded against an applicant, the deposit filed 1
with the application must be applied towards payment of the 2
costs. 3
(3) If not, the deposit must be returned to the applicant. 4
149 Decisions and orders to be final 5
A decision of, or order made by, the Court of Disputed 6
Returns that relates to an application is not subject to appeal 7
other than an appeal under division 3. 8
150 Right of electoral commission and returning officer to 9
have access to documents 10
Unless the Court of Disputed Returns otherwise orders, the 11
filing of an application does not deprive the electoral 12
commission or a returning officer of any right to have access 13
to a document for the purpose of performing the commission's 14
or officer's functions. 15
Division 2 Appeals 16
151 Appeal to Court of Appeal on question of law 17
An appeal lies to the Court of Appeal from any decision of, or 18
order made by, the Court of Disputed Returns only on a 19
question of law. 20
152 Time for appealing 21
The notice of appeal starting the appeal must-- 22
(a) be filed within 7 days after the date of the decision or 23
order appealed from; and 24
(b) be served as soon as practicable on all other parties to 25
the appeal. 26
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[s 153]
153 Electoral commission is a party to appeal 1
The electoral commission is a party to the appeal, whether or 2
not it is the appellant. 3
154 How appeal is dealt with by Court of Appeal 4
(1) In deciding the appeal, the Court of Appeal-- 5
(a) is not bound by technicalities, legal forms or rules of 6
evidence; and 7
(b) may use the procedures, whether usual or otherwise, 8
that it considers necessary to enable the appeal to be 9
decided quickly and properly; and 10
(c) has all the powers given to it by the Uniform Civil 11
Procedure Rules 1999. 12
(2) The court must use its best efforts to ensure that the appeal is 13
heard, and the court's final decision is made or order is given, 14
as quickly as is reasonable in the circumstances. 15
155 Application for dismissal of appeal 16
(1) A party, other than the appellant, may apply to the Court of 17
Appeal for an order dismissing the appeal on the ground that 18
there has been excessive delay by the appellant in relation to 19
the appeal. 20
(2) The court may make an order on the application it considers 21
appropriate. 22
156 Copy of final court orders 23
The registrar of the Supreme Court must arrange for a copy of 24
the Court of Appeal's final orders to be sent to the Minister, 25
the electoral commission and the local government to which 26
the appeal relates as soon as practicable after they are made. 27
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Part 8 Legal provisions
[s 157]
157 Right of electoral commission and returning officer to 1
have access to documents 2
Unless the Court of Appeal otherwise orders, the filing of the 3
notice of appeal does not deprive the electoral commission or 4
a returning officer of any right to have access to a document 5
for the purpose of performing the commission's or officer's 6
functions. 7
Part 8 Legal provisions 8
158 Decisions not subject to appeal 9
(1) If a provision of this Act declares a decision to be not subject 10
to appeal, the decision-- 11
(a) can not be appealed against, challenged, reviewed, 12
quashed, set aside, or called into question in any way, 13
including, for example, under the Judicial Review Act 14
1991; and 15
(b) is not subject to any writ or order of a court on any 16
ground. 17
Examples-- 18
1 A person may not bring any proceedings for an injunction to 19
stop conduct that is authorised by the decision. 20
2 A person may not bring any proceedings for a declaration 21
about the validity of conduct that is authorised by the 22
decision. 23
(2) Subsection (1) does not limit section 149. 24
(3) In this section-- 25
court includes a tribunal or another similar entity. 26
decision includes-- 27
(a) conduct related to making the decision; and 28
(b) a failure to make a decision. 29
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[s 159]
159 Postal vote presumed valid until contrary proved 1
If a declaration envelope and ballot paper to which section 72 2
applies is received by a returning officer by post, it must be 3
presumed that section 72(3) to (5) has been complied with in 4
relation to the declaration on the envelope until the contrary is 5
proved. 6
160 Evidentiary value of list under s 164 7
In a proceeding, a document purporting to be a list, or a copy 8
of or extract from a list, made under section 164, and certified 9
by the returning officer who made the list is evidence of the 10
matters contained in the document. 11
161 Ballot papers as evidence 12
In a proceeding, a ballot paper apparently used at an election 13
and identified by evidence as 1 of the ballot papers held by the 14
electoral commission under section 102 is evidence of the 15
vote or votes cast in the election as recorded on the ballot 16
paper. 17
162 Allegations of false or misleading information or 18
document 19
In a proceeding for an offence against this Act defined as 20
involving false or misleading information, or a false or 21
misleading document, it is enough for a charge to state the 22
information or document was, without specifying which, 23
`false or misleading'. 24
163 Evidentiary provisions 25
In a proceeding for an offence against this Act, a certificate 26
purporting to be signed by a member of the electoral 27
commission and stating any of the following matters is 28
evidence of the matter-- 29
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[s 164]
(a) a stated document is an application, declaration, notice 1
or return given or kept under this Act or the Electoral 2
Act 1992, or a copy of it; 3
(b) on a stated day, a stated person was given a stated 4
notice, under this Act. 5
Part 9 Enforcement 6
Division 1 Failure to vote 7
164 List of electors failing to vote 8
(1) The returning officer for an election must make a list of the 9
names and addresses, and the numbers shown on the voters 10
roll, of all-- 11
(a) electors who have not been given ballot papers for the 12
election; and 13
(b) postal voters who have not given their ballot papers to 14
the returning officer. 15
(2) The returning officer must certify the list by declaration in the 16
approved form and give the certified list to the electoral 17
commission. 18
(3) The list is to be held by the electoral commission. 19
165 Notice about failure to vote 20
(1) As soon as practicable after the conclusion of an election the 21
electoral commission must-- 22
(a) send a notice to each elector shown on the list made 23
under section 164; and 24
(b) record on the list, against the elector's name, the fact 25
that the notice has been given. 26
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[s 165]
(2) The notice under subsection (1)(a) must-- 1
(a) be sent to the elector's address shown on the list; and 2
(b) show the elector's full name and address and number on 3
the voters roll; and 4
(c) state that-- 5
(i) the elector appears to have failed to vote at the 6
election; and 7
(ii) it is an offence to fail, without a valid and sufficient 8
reason, to vote at an election; and 9
(iii) the elector may, if the elector considers the elector 10
has committed the offence, pay one-half of a 11
penalty unit (the penalty) to the electoral 12
commission by a stated day (the appropriate day) 13
and, if the electoral commission receives the 14
payment by the appropriate day, no further steps 15
will be taken against the elector about the offence; 16
and 17
(d) require the elector-- 18
(i) if the elector intends paying the penalty by the 19
appropriate day--to sign the approved form about 20
payment of the penalty included in or with the 21
notice and post or give the form, together with the 22
amount of the penalty, to the electoral commission 23
so it is received by the appropriate day; or 24
(ii) if the elector does not intend paying the penalty by 25
the appropriate day--to state, in the approved form 26
included in or with the notice, whether the elector 27
voted and, if not, the reason for failing to vote and 28
to sign the form and post or give it to the electoral 29
commission so it is received by the appropriate 30
day. 31
Note-- 32
The elector must comply with the requirements of the notice. See 33
section 168(1)(b). 34
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Part 9 Enforcement
[s 166]
(3) If-- 1
(a) the elector is absent, or unable, because of physical 2
incapacity, to comply with the requirements of the 3
notice; and 4
(b) another elector who has personal knowledge of the facts 5
complies with the requirements and in doing so also has 6
his or her signature on the form witnessed; 7
the first elector is taken to have complied with the notice's 8
requirements. 9
(4) The appropriate day decided by the electoral commission 10
must be at least 21 days after an elector receives a notice 11
under subsection (1)(a). 12
166 Payments for failure to vote 13
(1) If the electoral commission sends a person a notice under 14
section 165 for an election and the person makes the payment 15
mentioned in section 165(2)(c)(iii) to the electoral 16
commission, the electoral commission must-- 17
(a) accept the payment; and 18
(b) give the person a receipt for the payment; and 19
(c) not take any proceeding against the elector for failing to 20
vote at the election. 21
(2) In this section-- 22
proceeding includes serving an infringement notice under the 23
State Penalties Enforcement Act 1999. 24
167 Recording response to notice 25
The electoral commission must record against the name of an 26
elector who is given a notice under section 165 on the list 27
made under section 164 whether the elector-- 28
(a) has complied with the requirements of the notice under 29
section 165(2)(d); and 30
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[s 168]
(b) had a valid and sufficient reason for failing to vote at the 1
election. 2
168 Failure to vote 3
(1) An elector for an election must not-- 4
(a) fail to vote at the election without valid and sufficient 5
reason; or 6
(b) fail to comply with the requirements of a notice given to 7
the elector under section 165; or 8
(c) when complying with the requirements of the notice, 9
make a statement the elector knows to be false or 10
misleading in a material particular. 11
Maximum penalty--1 penalty unit. 12
(2) An elector's belief that it is part of the elector's religious duty 13
not to vote at elections is valid and sufficient reason for the 14
elector's failure to vote in a particular election. 15
Division 2 Corrupt and improper practices 16
affecting local government 17
elections 18
169 False or misleading information 19
(1) A person must not give information under this Act to a 20
returning officer or the electoral commission, including 21
information in a document, that the person knows is false or 22
misleading in a material particular. 23
Maximum penalty--1 year imprisonment. 24
(2) Subsection (1) does not apply to-- 25
(a) a person giving a document if, when giving the 26
document, the person-- 27
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[s 170]
(i) informs the returning officer or electoral 1
commission, to the best of the person's ability, how 2
it is false or misleading; and 3
(ii) if the person has, or can reasonably obtain, the 4
correct information--gives the returning officer or 5
electoral commission the correct information; or 6
(b) a return required to be given to the electoral commission 7
under part 6. 8
170 Bribery 9
(1) A person must not-- 10
(a) ask for or receive; or 11
(b) offer, or agree, to ask for or receive; 12
a benefit of any kind (whether for the person or someone else) 13
on the understanding that the person's election conduct will be 14
influenced or affected. 15
Maximum penalty--7 years imprisonment. 16
(2) A person must not, in order to influence or affect another 17
person's election conduct, give, or promise or offer to give, a 18
benefit of any kind to anyone. 19
Maximum penalty--7 years imprisonment. 20
(3) In this section-- 21
election conduct of a person means-- 22
(a) the way in which the person votes at an election; or 23
(b) the person's nominating as a candidate for an election; 24
or 25
(c) the person's support of, or opposition to, a candidate or 26
a political party at an election. 27
171 Assisting illegal payments 28
A person must not knowingly give an amount for-- 29
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[s 172]
(a) a benefit to which section 170(1) or (2) applies; or 1
(b) the purpose of replacing any amount that has been spent 2
to give a benefit mentioned in paragraph (a). 3
Maximum penalty--2 years imprisonment. 4
172 Improperly influencing electoral officers 5
A person must not improperly influence an electoral officer in 6
the performance of the officer's functions under this Act. 7
Maximum penalty--35 penalty units or 1 year's 8
imprisonment. 9
173 Obstructing electors 10
A person must not obstruct the free exercise or performance, 11
by an elector, of a right or responsibility under this Act that 12
relates to an election. 13
Maximum penalty--20 penalty units or 6 months 14
imprisonment. 15
174 Obstructing electoral officers etc. 16
A person must not-- 17
(a) wilfully obstruct or disturb any proceeding at an 18
election; or 19
(b) prevent a scrutineer from entering or leaving a polling 20
booth-- 21
(i) during voting hours for the polling booth; or 22
(ii) while votes are being counted at the polling booth; 23
or 24
(c) obstruct, intimidate or wilfully mislead an electoral 25
officer in the performance of a function under this Act. 26
Maximum penalty--10 penalty units. 27
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[s 175]
175 Forged electoral papers 1
(1) A person must not-- 2
(a) forge an electoral paper; or 3
(b) use a forged electoral paper knowing it to be forged. 4
Maximum penalty--10 years imprisonment. 5
(2) A person must not make someone else's signature on an 6
electoral paper. 7
Maximum penalty--10 years imprisonment. 8
176 Wilful neglect etc. of electoral officers 9
An electoral officer must not wilfully neglect or fail to 10
perform the officer's functions under this Act. 11
Maximum penalty--20 penalty units. 12
Division 3 Offences relating to electoral 13
advertising 14
177 Author of election material must be named 15
(1) A person must not, during the election period for an 16
election-- 17
(a) print, publish, distribute or broadcast; or 18
(b) allow or authorise another person to print, publish, 19
distribute or broadcast; 20
any advertisement, handbill, pamphlet or notice containing 21
election material unless there appears, or is stated, at its end 22
the advertisement authorisation. 23
Maximum penalty-- 24
(a) for an individual--20 penalty units; or 25
(b) for a corporation--85 penalty units. 26
(2) Subsection (1) does not apply to an advertisement that-- 27
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[s 178]
(a) is printed, published or distributed on a car sticker, 1
T-shirt, lapel badge, pen, pencil or balloon; or 2
(b) is of a kind prescribed by regulation. 3
(3) Also, subsection (1) does not apply to distributing, or allowing 4
or authorising another person to distribute, a how-to-vote 5
card. 6
(4) In this section-- 7
advertisement authorisation, of an advertisement, handbill, 8
pamphlet or notice, means the name and address, other than a 9
post office box, of the person who authorised the 10
advertisement, handbill, pamphlet or notice. 11
178 Distribution of how-to-vote cards 12
(1) During the election period for an election, a person must not 13
distribute, or allow or authorise another person to distribute, a 14
how-to-vote card that does not comply with subsections (2) to 15
(5). 16
Maximum penalty-- 17
(a) for an individual--20 penalty units; or 18
(b) for a corporation--85 penalty units. 19
(2) A how-to-vote card must state the name and address of the 20
person who authorised the card. 21
(3) A how-to-vote card must also state-- 22
(a) if the card is authorised for a political party or a 23
candidate endorsed by a political party--the party's 24
name; or 25
Example for paragraph (a)-- 26
`Authorised P. Smith, 123 Main Street Brisbane for [name of 27
political party]'. 28
(b) if paragraph (a) does not apply and the card is 29
authorised for a group of candidates or for a candidate 30
who is a member of a group of candidates--the group's 31
name; or 32
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[s 178]
Example for paragraph (b)-- 1
`Authorised M. Taylor, 99 King Street Port Douglas for [name of 2
group]'. 3
(c) otherwise--the candidate's name and the word 4
`candidate'. 5
Example for paragraph (c)-- 6
`Authorised R. Jones, 88 Queen Street Brisbane for R. Jones 7
(candidate)'. 8
(4) For subsection (2)-- 9
(a) the address must not be a post office box; and 10
(b) if the card is authorised for a group of candidates or for 11
a candidate who is a member of a group of candidates, 12
the authorising person must be a member of the group. 13
(5) The particulars mentioned in subsections (2) and (3) must 14
appear-- 15
(a) at the end of each side of the how-to-vote card that 16
contains print; and 17
(b) in prominent and legible characters in print no smaller 18
than-- 19
(i) if the card is not larger than A6--10 point; or 20
(ii) if the card is larger than A6 but not larger than 21
A3--14 point; or 22
(iii) if the card is larger than A3--20 point. 23
(6) During the election period for an election, a person must not 24
distribute, or allow or authorise another person to distribute, a 25
how-to-vote card if the person knows, or ought reasonably to 26
know, that the particulars, or any of the particulars, mentioned 27
in subsections (2) and (3) on the card are false. 28
Maximum penalty-- 29
(a) for an individual--20 penalty units; or 30
(b) for a corporation--85 penalty units. 31
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[s 179]
179 Giving of how-to-vote cards to returning officer 1
(1) The person who authorised a how-to-vote card for a political 2
party, or for a candidate endorsed by a political party, for an 3
election must, no later than 5p.m. on the Friday that is at least 4
7 days before the polling day for the election, give the 5
returning officer for the election-- 6
(a) the required number of the how-to-vote cards; and 7
(b) a statutory declaration relating to any financial 8
contribution received from another political party or 9
another candidate, whether directly or from someone 10
else on behalf of the party or candidate, in relation to the 11
production of the how-to-vote card that states-- 12
(i) who the financial contribution was received from 13
or on behalf of; and 14
(ii) the nature and amount of the financial contribution. 15
(2) The person who authorised a how-to-vote card for a candidate 16
or a group of candidates for an election, other than a candidate 17
or group of candidates endorsed by a political party for the 18
election, must, by 5p.m. on the Friday that is at least 7 days 19
before the polling day for the election, give the returning 20
officer for the election-- 21
(a) the required number of the how-to-vote cards; and 22
(b) a statutory declaration relating to any financial 23
contribution received from a political party or another 24
candidate, whether directly or from someone else on 25
behalf of the party or candidate, in relation to the 26
production of the how-to-vote card that states-- 27
(i) who the financial contribution was received from 28
or on behalf of; and 29
(ii) the nature and amount of the financial contribution. 30
Example for subsections (1) and (2)-- 31
If polling day is Saturday, 25 March, the how-to-vote cards and statutory 32
declaration must be lodged by 5p.m. on Friday, 17 March. 33
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[s 180]
(3) The returning officer must reject a how-to-vote card received 1
under subsection (1) or (2) that does not comply with section 2
178. 3
(4) Before polling day, the returning officer must ensure an 4
accepted how-to-vote card is available for public inspection 5
at-- 6
(a) the place of nomination under section 25; and 7
(b) if the place of nomination is not also the public office of 8
the local government for which the election is to be 9
held--the local government's public office. 10
(5) On polling day, the returning officer must, to the extent 11
practicable, make an accepted how-to-vote card available for 12
public inspection at each polling booth for which the 13
how-to-vote card is relevant. 14
(6) An election is not invalid only because the returning officer 15
does not comply with subsection (4) or (5). 16
(7) In this section-- 17
financial contribution means a contribution in the form of 18
money, property or other valuable consideration. 19
required number, of how-to-vote cards, means 12 more than 20
the number of polling booths within the local government's 21
area at which the cards are to be distributed. 22
180 Unauthorised how-to-vote cards 23
(1) A person must not distribute or authorise someone else to 24
distribute, a how-to-vote card to which section 179(1) or (2) 25
applies on polling day for an election unless section 179(1) or 26
(2) has been complied with for the card. 27
Maximum penalty--20 penalty units. 28
(2) If, on polling day for an election, an electoral officer 29
reasonably suspects a person is distributing a how-to-vote 30
card to which section 179(1) or (2) applies and that section 31
179(1) or (2) has not been complied with for the card, the 32
electoral officer may-- 33
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Part 9 Enforcement
[s 181]
(a) require the person to produce the how-to-vote card for 1
inspection; and 2
(b) confiscate any how-to-vote cards that have not been 3
given as required under section 179(1) or (2). 4
(3) A person must not obstruct an electoral officer in the exercise 5
of the power under subsection (2)(b), unless the person has a 6
reasonable excuse. 7
Maximum penalty--20 penalty units. 8
181 Headline to electoral advertisements 9
The proprietor of a newspaper must not print in the newspaper 10
any article, or a paragraph, containing information that relates 11
to an election or a matter debated in the election if-- 12
(a) either-- 13
(i) the insertion of the article or paragraph is, or is to 14
be, paid for; or 15
(ii) any reward or compensation, or promise of reward 16
or compensation, is, or is to be, made for the 17
insertion of the article or paragraph; and 18
(b) the proprietor does not cause the word `advertisement' 19
to be printed as a headline to the article or paragraph in 20
letters not smaller than 10 point or long primer. 21
Maximum penalty-- 22
(a) for an individual--10 penalty units; or 23
(b) for a corporation--40 penalty units. 24
182 Misleading voters 25
(1) During an election period for an election, a person must not 26
print, publish, distribute or broadcast anything that is intended 27
or likely to mislead an elector about the ways of voting at the 28
election. 29
Maximum penalty--40 penalty units. 30
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Part 9 Enforcement
[s 183]
(2) A person must not, for the purpose of affecting the election of 1
a candidate, knowingly publish a false statement of fact about 2
the personal character or conduct of the candidate. 3
Maximum penalty--40 penalty units. 4
(3) During an election period for an election, a person must not 5
print, publish, distribute or broadcast by television anything 6
that purports to be a representation of a ballot paper for use in 7
the election, if it is likely to induce an elector to cast an 8
informal vote. 9
Maximum penalty--40 penalty units. 10
(4) In this section-- 11
publish includes publish on the internet, even if the internet 12
site on which the publication is made is located outside 13
Queensland. 14
183 Offence for group of candidates to advertise or fundraise 15
if particular requirements not complied with 16
(1) This section applies to a candidate for an election who is a 17
member of a group of candidates. 18
(2) The candidate must not, during the candidate's disclosure 19
period for the election, advertise or fundraise for the election 20
unless sections 41 and 42 have been complied with for the 21
group of candidates. 22
Maximum penalty--100 penalty units. 23
(3) The candidate must ensure that, during the candidate's 24
disclosure period for the election, a person does not advertise 25
or fundraise for the election on behalf of the group unless 26
sections 41 and 42 have been complied with for the group of 27
candidates. 28
Maximum penalty--100 penalty units. 29
(4) For subsections (2) and (3), a person advertises for an election 30
if-- 31
(a) the person prints, publishes, distributes or broadcasts, or 32
permits or authorises someone else to print, publish, 33
Page 136
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Part 9 Enforcement
[s 184]
distribute or broadcast, any advertisement, handbill, 1
pamphlet or notice containing election material; and 2
(b) the election material promotes the election of 1 or more 3
of the members of the group. 4
(5) For subsections (2) and (3), a person fundraises for an election 5
if the person conducts an activity directed at collecting 6
amounts to be used for promoting the election of 1 or more 7
members of the group. 8
Examples of fundraising activities-- 9
conducting a social function at which persons are charged for 10
admission, or conducting an auction or a raffle 11
(6) It is a defence to a prosecution for an offence against 12
subsection (3) for the candidate to prove-- 13
(a) the candidate exercised reasonable diligence to ensure 14
no person acted in a way that would cause the candidate 15
to contravene the subsection; or 16
(b) the candidate did not know, and could not reasonably 17
have been expected to know, about the fundraising or 18
advertising done on behalf of the group. 19
(7) In this section-- 20
candidate's disclosure period see section 116. 21
Division 4 Offences relating to voting 22
184 Leave to vote 23
(1) This section applies if-- 24
(a) an employee who is an elector asks his or her employer, 25
before polling day for an election, for leave of absence 26
to vote at the election; and 27
(b) the absence is necessary to enable the employee to vote 28
at the election. 29
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Part 9 Enforcement
[s 185]
(2) The employer must allow the employee leave of absence for a 1
reasonable period, up to 2 hours, to enable the employee to 2
vote at the election, unless the absence is reasonably likely to 3
cause danger or substantial loss to the employer in relation to 4
the employment concerned. 5
Maximum penalty-- 6
(a) for an individual--10 penalty units; or 7
(b) for a corporation--40 penalty units. 8
(3) The employer must not impose any penalty or 9
disproportionate deduction of pay for the leave of absence. 10
Maximum penalty-- 11
(a) for an individual--10 penalty units; or 12
(b) for a corporation--40 penalty units. 13
(4) An employee must not ask for leave of absence under 14
subsection (1) to vote at an election unless the employee 15
genuinely intends to vote at the election. 16
Maximum penalty--10 penalty units. 17
185 Canvassing in or near polling booths 18
(1) Subsection (3) applies to a person, during an election period 19
for an election, at a place that is-- 20
(a) inside a polling booth; or 21
(b) within 6m, or a shorter distance approved under 22
subsection (2), of an entrance to a building if-- 23
(i) the building is, or is part of, a polling booth; and 24
(ii) a ballot box is in the building for use in the election 25
or a person is in the building to cast a vote in the 26
election. 27
(2) The returning officer may approve a shorter distance for an 28
early polling booth for the period in which a pre-poll vote may 29
be cast in the election. 30
(3) The person must not-- 31
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Local Government Electoral Bill 2011
Part 9 Enforcement
[s 186]
(a) canvass for votes; or 1
(b) induce an elector not to-- 2
(i) vote in a particular way; or 3
(ii) vote at all in the election; or 4
(c) loiter. 5
Maximum penalty--10 penalty units. 6
(4) If the returning officer approves a shorter distance under 7
subsection (2), the returning officer must display a notice at 8
the early polling booth stating the shorter distance and 9
mentioning the offence under subsection (3). 10
186 Influencing voting by violence or intimidation 11
A person must not, by violence or intimidation, influence a 12
person's vote at an election. 13
Maximum penalty--2 years imprisonment. 14
187 Party badges not to be worn in polling booths 15
A person must not wear or display any badge or emblem of a 16
political party in a polling booth. 17
Maximum penalty--1 penalty unit. 18
188 Displaying political statements around polling booths 19
(1) A person must not display a political statement-- 20
(a) inside a polling booth; or 21
(b) within 6m of the entrance to a building that is, or is part 22
of, a polling booth. 23
Maximum penalty--1 penalty unit. 24
(2) In this section-- 25
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Part 9 Enforcement
[s 189]
political statement means a statement or design that a 1
reasonable person would associate with a political 2
organisation, cause or belief. 3
189 Voting if not entitled 4
A person must not, at an election-- 5
(a) vote in someone else's name (including a dead or 6
fictitious person); or 7
(b) vote more than once; or 8
(c) cast a vote that the person knows the person is not 9
entitled to cast; or 10
(d) if the person knows another person is not entitled to vote 11
at the election--procure the other person to vote. 12
Maximum penalty--3 years imprisonment. 13
190 Offences about ballot papers 14
(1) A person must not-- 15
(a) wilfully fail to comply with section 70, 71 or 72; or 16
(b) take a ballot paper out of a polling booth other than in 17
compliance with this Act; or 18
(c) place in a ballot box a ballot paper that has not been-- 19
(i) given to an elector under this Act; or 20
(ii) marked by the elector. 21
Maximum penalty--20 penalty units or 6 months 22
imprisonment. 23
(2) A person must not, without lawful excuse, obtain possession 24
of or have in the person's possession-- 25
(a) a ballot paper that has been marked by anyone else; or 26
(b) a declaration envelope that has been signed by anyone 27
else. 28
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Part 9 Enforcement
[s 191]
Maximum penalty--20 penalty units or 6 months 1
imprisonment. 2
191 Failure to post, fax or deliver documents for someone 3
else 4
(1) If a person is given, for delivery or posting to the returning 5
officer, an application by another person to be cast a postal 6
vote, the person must promptly deliver or post it to the 7
returning officer. 8
Maximum penalty--20 penalty units or 6 months 9
imprisonment. 10
(2) If a person is given, for delivery or posting to the returning 11
officer, a declaration envelope that appears to be completed, 12
the person must give or post it to the returning officer, unless 13
the person has a reasonable excuse. 14
Maximum penalty--20 penalty units or 6 months 15
imprisonment. 16
192 Secrecy of voting 17
(1) A person must not examine a ballot paper used in an election 18
to find out the candidates for whom an elector has voted 19
unless required by a court or authorised under this Act to do 20
so. 21
Maximum penalty--20 penalty units or 6 months 22
imprisonment. 23
(2) If, in performing a function for an election, a person has found 24
out the candidates for whom an elector has cast a vote, the 25
person must not disclose, or assist in disclosing, that fact, 26
unless the person is required by law to make the disclosure. 27
Maximum penalty--20 penalty units or 6 months 28
imprisonment. 29
(3) An electoral officer, or scrutineer, must not make a mark, 30
memorandum or note on a voters roll or any other list of 31
voters or otherwise-- 32
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[s 193]
(a) that indicates for whom a person has cast a vote; or 1
(b) that would enable the officer or scrutineer to know or 2
remember for whom a person has cast a vote. 3
Maximum penalty--10 penalty units. 4
193 Breaking seals on parcels 5
A person must not wilfully open or break the seal of a parcel 6
or packet sealed under this Act unless the person is authorised 7
under this Act or ordered by a court to open or break the seal. 8
Maximum penalty--20 penalty units or 6 months 9
imprisonment. 10
194 Duty of witness in signing declaration envelopes 11
A person (the witness) must not sign a declaration envelope as 12
witness under section 72 unless-- 13
(a) the witness is satisfied of the identity of the elector who 14
signs the declaration before the witness; and 15
(b) the witness has seen the elector sign the declaration; and 16
(c) either-- 17
(i) the witness knows that the declaration made by the 18
elector is true; or 19
(ii) the witness is satisfied that the declaration is true 20
because of inquiries of the elector or otherwise. 21
Maximum penalty--20 penalty units or 6 months 22
imprisonment. 23
Page 142
Local Government Electoral Bill 2011
Part 9 Enforcement
[s 195]
Division 5 Offences relating to electoral 1
funding and financial disclosure 2
195 Offences about returns 3
(1) A person must give a return the person is required to give 4
under a provision of part 6 within the time required by the 5
provision. 6
Maximum penalty--20 penalty units. 7
(2) A person must not give a return the person is required to give 8
under part 6 containing particulars that are, to the knowledge 9
of the person, false or misleading in a material particular. 10
Maximum penalty-- 11
(a) if the person is required to give the return as a 12
candidate--100 penalty units; 13
(b) otherwise--50 penalty units. 14
(3) If a candidate is a member of a group of candidates and the 15
group's agent is required under section 118(2) or 120(2) to 16
give a return, the candidate must not allow the agent to give 17
the return if it contains particulars that are, to the knowledge 18
of the candidate, false or misleading in a material particular. 19
Maximum penalty--100 penalty units. 20
(4) A person (the first person) must not give to another person 21
who is required to give a return under part 6 information to 22
which the return relates that is, to the knowledge of the first 23
person, false or misleading in a material particular. 24
Maximum penalty--20 penalty units. 25
(5) A prosecution for an offence against a provision of this 26
section may be started at any time within 4 years after the 27
offence was committed. 28
(6) If a person is found guilty of an offence under subsection (1), 29
a court may, as well as imposing a penalty under the 30
subsection, order the person to give the relevant return within 31
the period stated in the order. 32
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[s 196]
(7) If a person is found guilty of an offence under subsection (2), 1
a court may, as well as imposing a penalty under the 2
subsection, order the person to pay, within the period stated in 3
the order, to the State an amount equal to the amount of the 4
value of any gifts made to, or for the benefit of, the person and 5
not disclosed in a return. 6
196 Records to be kept 7
(1) A person who makes or receives a relevant record for an 8
election must keep the record for at least 5 years after the 9
conclusion of the election unless the record, in the normal 10
course of business or administration, is transferred to 11
someone else. 12
Maximum penalty--20 penalty units. 13
(2) In this section-- 14
gift see section 107. 15
relevant record, for an election, is a document or other thing 16
that is or includes a record about a matter the particulars of 17
which-- 18
(a) are, or could be, required to be stated in a return under 19
part 6 about the election; or 20
(b) evidence that the giver of a gift intended the gift to be 21
used by the receiver, either wholly or in part, to enable 22
the receiver to incur expenditure for a political purpose 23
or to reimburse the receiver for incurring expenditure for 24
a political purpose. 25
197 Obtaining information for returns 26
A person who is required to give a return under part 6 must-- 27
(a) take all reasonable steps to obtain the particulars 28
required to complete the return; and 29
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Part 9 Enforcement
[s 198]
(b) complete the return to the extent practicable with the 1
particulars obtained. 2
Maximum penalty--20 penalty units. 3
198 Further information for incomplete returns 4
(1) This section applies if-- 5
(a) at any time within 5 years after the conclusion of an 6
election, a person who has, under section 131, made a 7
statement that a return about the election is not 8
complete; and 9
(b) the person obtains information or particulars relevant to 10
the return that the person was not able to obtain before 11
completing the return. 12
(2) The person must give to the returning officer to whom the 13
return was given a written notice of the information or 14
particulars obtained. 15
Maximum penalty--20 penalty units. 16
Division 6 Attempts 17
199 Attempts to commit offences 18
(1) A person who attempts to commit an offence against this part 19
commits an offence. 20
Maximum penalty--half the maximum penalty for 21
committing the offence. 22
(2) The Criminal Code, section 4 applies to subsection (1). 23
Page 145
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Part 9 Enforcement
[s 200]
Division 7 Injunctions 1
200 Injunctions 2
(1) An application may be made to the Supreme Court for an 3
injunction if-- 4
(a) either-- 5
(i) a person (the offending party) has engaged, is 6
engaging or proposes to engage in conduct; or 7
(ii) a person (also the offending party) has failed, is 8
failing or proposes to fail to do anything; and 9
(b) the conduct or failure constituted, constitutes or would 10
constitute a contravention of, or an offence against, this 11
part. 12
(2) The application may be made by-- 13
(a) if the conduct or failure relates to an election--a 14
candidate or nominee as a candidate in the election; or 15
(b) in any case--the commission. 16
(3) The court may grant an interim injunction pending 17
determination of the application. 18
(4) If the electoral commission makes the application, the court 19
must not require the commission or anyone else to give an 20
undertaking about damages as a condition of granting an 21
interim injunction. 22
(5) On consideration of the application, the court may-- 23
(a) if subsection (1)(a)(i) applies-- 24
(i) grant an injunction restraining the offending party 25
from engaging in the conduct concerned; and 26
(ii) also require the offending party to do anything to 27
prevent or remedy the contravention; or 28
(b) if subsection (1)(a)(ii) applies--grant an injunction 29
requiring the offending party to do the thing in question. 30
Page 146
Local Government Electoral Bill 2011
Part 10 Miscellaneous
[s 201]
(6) The court may grant the injunction if the court is satisfied-- 1
(a) the offending party has engaged in the conduct, or failed 2
to do the thing, mentioned in subsection (1)--whether 3
or not it appears to the court that the offending party 4
intends-- 5
(i) to engage again or continue to engage in the 6
conduct; or 7
(ii) to fail or continue to fail to do the thing; or 8
(b) that, if the injunction is not granted, it is likely the 9
offending party will engage in the conduct, or fail to do 10
the thing, mentioned in subsection (1), whether or not-- 11
(i) the offending party has previously engaged in the 12
conduct or failed to do the thing; or 13
(ii) there is imminent danger of substantial damage to 14
any person if the offending party engages in the 15
conduct or fails to do the thing. 16
(7) The court may refuse to grant an injunction if the court is 17
satisfied the application was not made to the court at the 18
earliest possible opportunity. 19
(8) The court may discharge or vary the injunction or an interim 20
injunction. 21
(9) The powers conferred on the court by this section are in 22
addition to, and do not limit, other powers of the court. 23
Part 10 Miscellaneous 24
201 Designated election offences and application of Criminal 25
Code 26
(1) An offence (a designated election offence) against any of the 27
following provisions is a crime-- 28
· section 170(1) or (2) 29
Page 147
Local Government Electoral Bill 2011
Part 10 Miscellaneous
[s 202]
· section 171 1
· section 175(1) or (2) 2
· section 186 3
· section 189. 4
(2) The Criminal Code, chapter 58A applies to a designated 5
election offence. 6
(3) Without limiting subsection (2), the chapter applies to a 7
designated election offence as if the offence were an offence 8
under chapter 14, chapter division 2 of the code. 9
202 Local governments responsible for expenditure for 10
conducting local government elections 11
(1) A local government must pay the costs incurred by the 12
electoral commission for conducting an election in its local 13
government area, including the remuneration, allowances and 14
reasonable expenses paid to members or staff of the electoral 15
commission. 16
(2) However, local governments may be required to collectively 17
contribute to the costs of the electoral commission for 18
conducting an election in 2 or more local government areas 19
using a shared and centrally administered service. 20
203 Leave to local government employee to contest local 21
government election 22
(1) A local government employee who nominates as a candidate 23
for an election is entitled to a leave of absence, for a period of 24
not more than 2 months, to contest the election. 25
(2) A local government employee may use any entitlement to 26
accrued leave with pay as leave to which the employee is 27
entitled under subsection (1). 28
(3) A local government employee is not entitled to payment of 29
salary or wages for any period of leave taken under subsection 30
(1) other than any accrued leave with pay that the employee 31
uses during the period. 32
Page 148
Local Government Electoral Bill 2011
Part 10 Miscellaneous
[s 204]
204 Inspection of documents 1
(1) This section applies if a person is authorised under this Act to 2
inspect a document. 3
(2) The person may-- 4
(a) inspect the document; and 5
(b) make copies of, or take extracts from, the document; 6
free of charge at any time when the office in which the 7
document is held is open for business. 8
(3) The entity (the custodian) that has custody of the document is 9
not required to supply any facility or service to the person in 10
making a copy of, or taking an extract from, the document. 11
(4) If the custodian supplies a facility or service to the person for 12
making a copy of, or taking an extract from, the document, the 13
custodian may charge a fee for the facility or service. 14
(5) However, the fee must be no more than the cost to the 15
custodian of making the copy or extract for the person and, if 16
posted to the person, the postage cost. 17
205 Persons serving a sentence of imprisonment 18
For this Act, a person is serving a sentence of imprisonment 19
only if-- 20
(a) the person is in detention on a full-time basis for an 21
offence against a law of the Commonwealth or a State or 22
Territory; and 23
(b) the detention is attributable to the sentence of 24
imprisonment concerned. 25
206 Office of returning officer 26
(1) A returning officer must keep premises for use as a public 27
office for an election. 28
(2) The electoral commission must publish notice of the address 29
of the public office in a newspaper circulating generally in the 30
Page 149
Local Government Electoral Bill 2011
Part 11 Transitional provisions
[s 207]
local government area, or division of the local government 1
area, for which the election is to be held. 2
207 Approved forms 3
(1) The electoral commission may approve forms for use under 4
this Act. 5
(2) A form may be approved for use under this Act that is 6
combined with, or is to be used together with, an approved 7
form under another Act. 8
208 Regulation-making power 9
(1) The Governor in Council may make regulations under this 10
Act. 11
(2) A regulation may be made about the principles under which 12
the value of a gift that is property is to be decided under 13
section 108. 14
Part 11 Transitional provisions 15
209 Transitional regulation-making power 16
(1) A transitional regulation may provide for a matter that-- 17
(a) it is necessary to provide for, to allow or facilitate the 18
doing of anything to achieve the transition from the 19
repealed election provisions to this Act; and 20
(b) this Act does not provide for or sufficiently provide for. 21
(2) A transitional regulation may have retrospective operation to a 22
day that is not earlier than the day on which this section 23
commences. 24
(3) A transitional regulation must declare it is a transitional 25
regulation. 26
Page 150
Local Government Electoral Bill 2011
Part 12 Amendments of Acts and a regulation
[s 210]
(4) This section and any transitional regulation expire 1 year after 1
the day on which this section commences. 2
(5) In this section-- 3
repealed election provisions means-- 4
(a) provisions of the repealed Local Government Act 1993 5
relating to elections that were continued in force under 6
the Local Government Act 2009, section 284; or 7
(b) provisions of the repealed City of Brisbane Act 1924 8
relating to elections that were continued in force under 9
the City of Brisbane Act 2010, section 263. 10
Part 12 Amendments of Acts and a 11
regulation 12
Division 1 Amendment of this Act 13
210 Act amended 14
This division amends this Act. 15
211 Amendment of long title 16
Long title, from `elections, to amend'-- 17
omit, insert-- 18
`elections'. 19
Page 151
Local Government Electoral Bill 2011
Part 12 Amendments of Acts and a regulation
[s 212]
Division 2 Amendment of Animal Management 1
(Cats and Dogs) Act 2008 2
212 Act amended 3
This division amends the Animal Management (Cats and 4
Dogs) Act 2008. 5
213 Amendment of s 103 (Cost of regulated dog 6
enclosure--dividing fence) 7
(1) Section 103-- 8
insert-- 9
`(2A) However, if part of the fence forms part of a pool barrier, the 10
liabilities and rights of adjoining owners relating to that part 11
of the fence forming part of a pool barrier for the cost of 12
building, altering, repairing, replacing or maintaining the 13
fence must be worked out under the Building Act 1975, 14
chapter 8, part 2A.'. 15
(2) Section 103(3), `for which a restricted dog permit is granted, 16
or is to be granted'-- 17
omit, insert-- 18
`that is, or is to be, the relevant place for a regulated dog'. 19
(3) Section 103-- 20
insert-- 21
`(4) In this section-- 22
pool barrier means a pool barrier under the Building Act 23
1975, section 245XA. 24
relevant place, for a regulated dog, means-- 25
(a) if the regulated dog is a declared dangerous dog or a 26
declared menacing dog--the place stated in the 27
registration notice as the address for it; or 28
(b) if the regulated dog is a restricted dog--the place for 29
which a restricted dog permit has been issued.'. 30
Page 152
Local Government Electoral Bill 2011
Part 12 Amendments of Acts and a regulation
[s 214]
(4) Section 103(2A) to (4)-- 1
renumber as section 103(3) to (5). 2
Division 3 Amendments of Building Act 1975 3
relating to pool barriers 4
214 Act amended 5
This division amends the Building Act 1975. 6
215 Amendment of s 231B (What is a regulated pool) 7
Section 231B(3)-- 8
omit, insert-- 9
`(3) Despite subsection (1), other than in part 2A a regulated pool 10
does not include a swimming pool situated on either of the 11
following if an approved pool safety management plan is in 12
force for the pool-- 13
(a) common property in a class 3 building, including a class 14
3 building that is to be constructed; 15
(b) land adjacent to land on which a class 3 building is, or is 16
to be, constructed and that is-- 17
(i) in the same ownership as the building; or 18
(ii) used in association with the building. 19
`(4) Also, a regulated pool does not include a public pool. 20
`(5) In this section-- 21
public pool means a swimming pool open to the public, 22
whether or not on payment of money, and operated by a local 23
government or other statutory body under the Statutory 24
Bodies Financial Arrangements Act 1982.'. 25
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[s 216]
216 Replacement of s 245U (Apportioning cost of 1
constructing etc. dividing fence) 2
Section 245U-- 3
omit, insert-- 4
`245U Interference with barriers for regulated pools 5
`(1) A person must not wilfully interfere with a barrier for a 6
regulated pool to which the pool safety standard applies in a 7
way that renders the pool noncompliant with the standard. 8
Maximum penalty--165 penalty units. 9
`(2) Subsection (1) does not apply to a person-- 10
(a) carrying out fencing work under part 2A, division 3; or 11
(b) attaching a thing to the barrier if attaching the thing does 12
not unreasonably and materially alter or damage the 13
barrier; or 14
(c) altering a wall of a building along a common boundary. 15
`(3) In this section-- 16
fencing work see the Neighbourhood Disputes Act, section 17
16'. 18
217 Renumbering of s 246 (When particular local law has no 19
force or effect for regulated pool) 20
Section 246-- 21
renumber as section 245W. 22
218 Insertion of new pt 2A 23
Chapter 8-- 24
insert-- 25
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[s 218]
`Part 2A Neighbours' rights and 1
responsibilities for particular 2
dividing fences 3
`Division 1 Introduction 4
`245X Overview 5
`(1) A sufficient dividing fence is required between 2 parcels of 6
adjoining land if an adjoining owner requests a dividing fence. 7
Note-- 8
For the responsibilities of neighbours for dividing fences generally, see 9
the Neighbourhood Disputes Act, chapter 2. 10
`(2) This part-- 11
(a) modifies the responsibilities of neighbours under the 12
Neighbourhood Disputes Act in relation to a dividing 13
fence, or a part of a dividing fence, forming part of a 14
pool barrier; and 15
(b) provides for a pool owner to construct a pool barrier 16
along the common boundary of adjoining lands. 17
`(3) This part encourages neighbours to attempt to resolve a 18
dividing fence issue informally. 19
`(4) However, if neighbours can not resolve a dividing fence issue, 20
the dispute may be taken to QCAT for resolution. 21
`Division 2 Interpretation 22
`245XA Definitions for pt 2A 23
`In this part-- 24
adjoining land see the Neighbourhood Disputes Act, section 25
15(3). 26
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[s 218]
adjoining owner see the Neighbourhood Disputes Act, 1
section 15(1) and (2). 2
dividing fence see the Neighbourhood Disputes Act, section 3
12. 4
fence see the Neighbourhood Disputes Act, section 11. 5
fencing work see the Neighbourhood Disputes Act, section 6
16. 7
neighbouring pool, for an adjoining owner, means a regulated 8
pool situated on the adjoining land. 9
notice of proposed fencing work means a notice under section 10
245XM. 11
owner, for land, see the Neighbourhood Disputes Act, section 12
14. 13
pool barrier means a barrier for a regulated pool. 14
Note-- 15
For this part a regulated pool includes other particular swimming pools. 16
See section 231B(3). 17
pool owner means an owner of land on which there is, or is 18
proposed to be, a regulated pool. 19
proposed regulated pool means a swimming pool, the 20
construction of which has not been completed, and may not 21
have been started, but for which the relevant person has a 22
building development approval. 23
special purpose fence means a dividing fence constructed 24
according to a specific design, or using specific materials or 25
dimensions, for the purpose of being an acoustic barrier or 26
complying with any of the following-- 27
(a) a development approval; 28
(b) a condition of a licence granted by a statutory authority; 29
(c) an order of a court or tribunal; 30
(d) an obligation under an Act. 31
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[s 218]
Example-- 1
An enclosure for a regulated dog under the Animal Management 2
(Cats and Dogs) Act 2008. 3
sufficient dividing fence see the Neighbourhood Disputes 4
Act, section 13. 5
`Division 3 Rights and responsibilities of pool 6
owners and their neighbours for 7
particular dividing fences 8
`245XB Right to construct pool barrier along common 9
boundary 10
`(1) This section applies if-- 11
(a) there is no dividing fence between 2 parcels of adjoining 12
land; and 13
(b) there is, or is proposed to be, a regulated pool on only 1 14
of the parcels that will have part of its pool barrier along 15
the common boundary between the parcels. 16
`(2) The pool owner may construct part of the pool barrier along 17
the common boundary if-- 18
(a) the pool owner and adjoining owner have agreed about 19
carrying out the fencing work; or 20
(b) QCAT has ordered that the fencing work be carried out. 21
`(3) Also, the pool owner may construct part of the pool barrier 22
along the common boundary without the adjoining owner 23
having agreed to the carrying out of the fencing work if-- 24
(a) the pool barrier will, when complete, comply with the 25
pool safety standard; and 26
(b) the part of the pool barrier along the common boundary 27
will, when complete, be a sufficient dividing fence; and 28
(c) the pool owner gives the adjoining owner a notice of 29
proposed fencing work at least 14 days before the 30
proposed fencing work is carried out. 31
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[s 218]
`245XC Walls on common boundary 1
`(1) This section applies if-- 2
(a) there is a wall of a building along the common boundary 3
of 2 parcels of adjoining land; and 4
(b) there is, or is proposed to be, a regulated pool on the 5
adjoining land without the building. 6
`(2) A pool owner may use any part of the wall as part of a pool 7
barrier that would, without alteration, comply with the pool 8
safety standard. 9
Note-- 10
The pool owner would need to construct a separate barrier for any part 11
of the wall that does not comply with the pool safety standard. For 12
example, a window in the wall. 13
`(3) However, despite any right of a pool owner under this 14
division, the wall may not be altered, demolished or replaced 15
without the agreement of the owner of the adjoining land on 16
which the building is located. 17
`245XD Right to alter or replace existing dividing fence for the 18
purpose of a pool barrier 19
`(1) This section applies if-- 20
(a) there is a dividing fence (the existing dividing fence) 21
between 2 parcels of adjoining land; and 22
(b) there is, or is proposed to be, a regulated pool on only 1 23
of the parcels that will use all or part of the dividing 24
fence to form part of the barrier for the regulated pool. 25
`(2) The pool owner may alter or replace all or part of the existing 26
dividing fence if-- 27
(a) the pool owner and adjoining owner have agreed about 28
carrying out the fencing work; or 29
(b) QCAT has ordered that the fencing work be carried out. 30
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`(3) The pool owner may alter or replace all or part of the existing 1
dividing fence without the adjoining owner having agreed 2
about carrying out the fencing work if-- 3
(a) the new fence will, when complete, form part of the 4
barrier for the regulated pool that complies with the pool 5
safety standard; and 6
(b) the new fence will, when complete, be a sufficient 7
dividing fence; and 8
(c) the new fence is constructed using similar materials and 9
colours to those of the existing dividing fence if the use 10
of the materials would not prevent compliance with 11
paragraph (a) and (b); and 12
Note-- 13
Some of the materials acceptable as constituting a sufficient 14
dividing fence would not comply with the pool safety standard. 15
(d) the pool owner gives the adjoining owner a notice of 16
proposed fencing work at least 14 days before the 17
proposed fencing work is carried out. 18
`(4) Also if the existing dividing fence is a special purpose fence, 19
the new fence must-- 20
(a) continue to serve the particular purpose that the existing 21
fence serves; and 22
(b) comply with all the requirements applying to the 23
existing dividing fence, including, for example 24
requirements about the design of the fence, the materials 25
to be used in the fence or the dimensions of the fence. 26
`(5) Also, if the existing dividing fence is more than 1.8m in 27
height, the new fence must, despite subsection (3)(b), be the 28
same height as the existing dividing fence but otherwise be a 29
sufficient dividing fence. 30
`(6) In this section-- 31
new fence means a fence that has been altered or is a 32
replacement of an existing fence. 33
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[s 218]
`245XE Right to construct part of the barrier for 2 1
neighbouring pools along the common boundary or 2
alter or replace existing fence 3
`(1) This section applies if-- 4
(a) there is, or is proposed to be, a regulated pool on each of 5
2 parcels of adjoining land; and 6
(b) each regulated pool will use the same part, along the 7
common boundary, of a barrier for a regulated pool. 8
`(2) Either pool owner may-- 9
(a) construct, along the common boundary, the part of the 10
barrier for the pools; or 11
(b) alter or replace an existing dividing fence to form part of 12
the barrier for the pools; or 13
(c) attach a thing to the barrier that does not unreasonably 14
and materially alter or damage the fence. 15
`(3) However, a pool owner may act under subsection (2)(a) or (b) 16
only if-- 17
(a) both pool owners have agreed about carrying out the 18
fencing work; or 19
(b) QCAT has ordered that the fencing work be carried out. 20
`(4) Before carrying out fencing work mentioned in subsection 21
(2)(a) or (b), a pool owner must give the other pool owner a 22
notice of proposed fencing work, unless QCAT has order that 23
the fencing work be carried out. 24
`(5) If, within 1 month after the notice is given, the pool owners 25
have not agreed about the proposed fencing work to be carried 26
out or their contributions to the proposed fencing work, either 27
pool owner may, within 2 months after the notice is given, 28
apply to QCAT for an order under section 245XQ. 29
`245XF Limited right of neighbour to alter or replace part of 30
pool barrier along a common boundary 31
`(1) This section applies if-- 32
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[s 218]
(a) there is part of the barrier for a regulated pool along the 1
common boundary between 2 parcels of adjoining land; 2
and 3
(b) the part of the barrier is for a regulated pool on only 1 of 4
the parcels. 5
`(2) The neighbour, or another person on behalf of the neighbour, 6
may alter or replace the part of the barrier only if-- 7
(a) the adjoining owner and the pool owner have agreed 8
about carrying out the fencing work; or 9
(b) QCAT has ordered that the fencing work be carried out. 10
`(3) Also, the neighbour may attach a thing to the part of the 11
barrier that does not unreasonably and materially alter or 12
damage the barrier. 13
`(4) Before carrying out fencing work mentioned in subsection (2), 14
the neighbour must give the other pool owner a notice of 15
proposed fencing work, unless QCAT has order that the 16
fencing work be carried out. 17
`(5) If, within 1 month after the notice is given, the neighbour and 18
pool owner have not agreed about the proposed fencing work 19
to be carried out or their contributions to the proposed fencing 20
work, the neighbour or pool owner may, within 2 months after 21
the notice is given, apply to QCAT for an order under section 22
245XQ. 23
`(6) To remove any doubt, it is declared that subsection (2) or (3) 24
does not alter or otherwise affect a pool owner's obligation 25
under section 232(1). 26
`(7) In this section-- 27
neighbour means an owner or lessee of adjoining land on the 28
opposite side of the common boundary from adjoining land 29
with a regulated pool. 30
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`245XG Right to enter adjoining land to carry out fencing 1
work 2
`(1) A person may enter land owned by another person (the other 3
owner) if-- 4
(a) the person has agreed with the other owner to carry out 5
fencing and allow access to the land; or 6
(b) QCAT has ordered that the fencing work be carried out 7
by the person and that access be granted to the land. 8
`(2) At least 14 days before entering the other owner's land, the 9
person must give the other owner, and any lessee of the land 10
that the person is aware of, a notice of proposed fencing work. 11
`(3) An employee or agent of the person may enter the land if the 12
person complies with subsection (2). 13
`(4) The person or the person's employee or agent may enter the 14
other person's land only at a reasonable time and only to a 15
reasonable extent needed to carry out the fencing work. 16
`(5) This section does not authorise entry to a dwelling on the 17
land. 18
`245XH Apportioning cost of constructing etc. dividing fence 19
forming part of a pool barrier 20
`(1) This section applies to carrying out relevant fencing work in 21
relation to a dividing fence forming part of a pool barrier 22
along the common boundary between 2 parcels of adjoining 23
land. 24
`(2) If the dividing fence forms part of a barrier for a regulated 25
pool on only 1 parcel of adjoining land-- 26
(a) to the extent the work is attributable to a pool owner 27
complying with section 232(1), the cost of carrying out 28
the work is to be borne solely by the pool owner; and 29
(b) to the extent the work is not attributable to pool owner 30
complying with section 232(1), the cost of carrying out 31
the work is to be borne equally by the pool owner and 32
adjoining owner. 33
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[s 218]
`(3) However, the entire cost of a pool owner carrying out the 1
following fencing work is to be borne solely by the pool 2
owner-- 3
(a) altering or replacing a special purpose fence; or 4
(b) altering or replacing a dividing fence to which section 5
245XD(5) applies. 6
Note-- 7
Section 245XD(5) applies to an existing fence more than 1.8m 8
in height. 9
`(4) If the dividing fence forms part of a barrier for a regulated 10
pool on each of the 2 parcels of adjoining land-- 11
(a) to the extent the work is attributable to both pool owners 12
complying with section 232(1), the cost of carrying out 13
the work is to be borne equally by both pool owners; and 14
(b) to the extent the work is not attributable to both pool 15
owners complying with section 232(1) but is attributable 16
to 1 of the pool owners (the remaining owner) 17
complying with section 232(1), the cost of carrying out 18
the work is to be borne solely by the remaining owner; 19
and 20
(c) to the extent the work is not attributable to either pool 21
owner complying with section 232(1), the cost of 22
carrying out the work is to be borne equally by both 23
pool owners. 24
`(5) Despite subsection (2) or (4), if the relevant fencing work is 25
altering or maintaining only 1 side of the dividing fence, the 26
cost of carrying out the work is to be borne solely by the 27
owner of the land on that side of the dividing fence. 28
`(6) Despite subsections (2) to (5), if the dividing fence is 29
damaged or destroyed by an act or omission to which section 30
245XJ applies, the cost of restoring the dividing fencing is to 31
be borne solely by the owner who, under that section, is 32
responsible for the damage or destruction. 33
`(7) In this section-- 34
relevant fencing work means any of the following-- 35
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[s 218]
(a) constructing a dividing fence forming part of a pool 1
barrier; 2
(b) altering or replacing a dividing fence along a common 3
boundary to create a dividing fence forming part of a 4
pool barrier; 5
(c) maintaining a dividing fence forming part of a pool 6
barrier. 7
`245XI Attaching things to a dividing fence forming part of a 8
pool barrier 9
`(1) An owner, or a person who has entered the owner's land with 10
the owner's express consent, must not, without the consent of 11
the adjoining owner, attach a thing to a dividing fence forming 12
part of a pool barrier that unreasonably and materially alters 13
or damages the fence. 14
Examples of an attachment-- 15
carport, shade sails, lattice work, canvas, signs 16
`(2) However, subsection (1) does not apply if the thing was 17
attached to the fence to make the fence comply with the pool 18
safety standard. 19
`(3) If an owner does not comply with this section, the adjoining 20
owner may-- 21
(a) apply to QCAT for an order requiring the owner to 22
remove the thing attached and restore the dividing fence 23
to a reasonable standard, having regard to its state before 24
the thing was attached; or 25
(b) carry out urgent fencing work under section 245XK to 26
restore the dividing fence to a reasonable standard, 27
having regard to its state before the thing was attached. 28
`245XJ Negligent or deliberate act or omission 29
`(1) This section applies if, whether before or after the 30
commencement of this section, a dividing fence forming part 31
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[s 218]
of a pool barrier is damaged or destroyed by a negligent or 1
deliberate act or omission of-- 2
(a) an owner of land; or 3
(b) a person who has entered the owner's land with the 4
owner's express consent, whether written or oral. 5
`(2) The owner must restore the dividing fence to a reasonable 6
standard, having regard to its state before the damage or 7
destruction. 8
Note-- 9
If the owner does not comply with subsection (2), the adjoining owner 10
may give the owner a notice under section 245XM or carry out urgent 11
fencing work under section 245XK. 12
`245XK Urgent fencing work 13
`(1) This section applies if all or part of a dividing fence forming 14
part of a pool barrier is damaged or destroyed and, in the 15
circumstances, urgent fencing work is required. 16
`(2) If it is impracticable to give a notice under section 245XM, an 17
owner may, without giving the notice, carry out the fencing 18
work required to restore the dividing fence to a reasonable 19
standard, having regard to its state before the damage or 20
destruction. 21
Note-- 22
Contribution from an owner to the cost of the urgent fencing work may 23
be obtained after giving a notice to the owner under section 245XN. 24
`(3) The cause of the damage or destruction does not affect the 25
operation of this section. 26
`(4) However, if the dividing fence is damaged or destroyed in a 27
way that renders a regulated pool, that uses the fence to form 28
part of its pool barrier, noncompliant with the pool safety 29
standard-- 30
(a) urgent fencing work is taken to be required; and 31
(b) it is taken to be impracticable to give notice under 32
section 245XM. 33
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[s 218]
`Division 4 Process for obtaining contribution 1
and resolving disputes 2
`Subdivision 1 Introduction 3
`245XL Overview 4
`(1) Adjoining owners are encouraged to attempt to resolve issues 5
about fencing work to avoid a dispute arising. 6
`(2) If an owner wants an adjoining owner to contribute to fencing 7
work under this part, the owner must give the adjoining owner 8
a notice under subdivision 2. 9
`(3) QCAT resolves disputes between adjoining owners if the 10
dispute arises about carrying out fencing work for a dividing 11
fence forming part of a pool barrier. 12
Note-- 13
See division 5 for the process for dealing with unauthorised fencing 14
work. 15
`Subdivision 2 Notices 16
`245XM Notice of proposed fencing work 17
`(1) If an owner must give notice of proposed fencing work under 18
division 3, the notice must be in the approved form and state 19
the following-- 20
(a) a description of the fencing work proposed to be carried 21
out, including the design, dimensions and materials to 22
be used; 23
(b) if the fencing work is to construct or replace a dividing 24
fence, the line on which it is proposed to construct or 25
replace the fence; 26
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[s 218]
Note-- 1
A dividing fence must ordinarily be constructed on the common 2
boundary. 3
(c) if entry is needed to an adjoining owner's land-- 4
(i) a description of the parts of the land to which entry 5
is proposed; 6
(ii) the proposed times of entry. 7
`(2) Subsections (3) and (4) apply if-- 8
(a) an owner may, under this part, seek a contribution from 9
another owner for carrying out fencing work; and 10
(b) the owner proposes to seek the contribution from the 11
other owner. 12
`(3) The notice must also state the following-- 13
(a) the estimated cost of the fencing work to be carried out 14
including the cost of labour and materials; 15
(b) the proposed proportions of contribution. 16
Note-- 17
An adjoining owner may contribute by a payment of an amount or 18
provision of labour or materials. 19
`(4) The notice must be accompanied by a copy of at least 1 20
written quotation stating the estimated cost of the fencing 21
work to be carried out. 22
`245XN Notice to contribute for urgent fencing work 23
`(1) This section applies if-- 24
(a) an owner carried out urgent fencing work under section 25
245XK; and 26
(b) an adjoining owner is responsible for all or some of the 27
costs of carrying out the fencing work under section 28
245XH. 29
`(2) The owner may require the adjoining owner to contribute the 30
adjoining owner's share of any reasonable cost incurred for 31
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the urgent fencing work by giving a notice to the adjoining 1
owner. 2
`(3) Reasonable costs incurred for urgent fencing work may 3
include the cost of using a temporary fence as part of a pool 4
barrier if use of the temporary fence was reasonable in the 5
circumstances. 6
`(4) The notice must-- 7
(a) be in the approved form; and 8
(b) state the following-- 9
(i) a description of the fencing work carried out, 10
including the design, dimensions and materials 11
used; 12
(ii) the reason urgent fencing work was required; 13
(iii) if a temporary fence was used--the reason for 14
using the temporary fence; 15
(iv) any cost incurred for the fencing work; 16
(v) the proposed contributions for the fencing work; 17
and 18
(c) include a receipt for the cost incurred for the fencing 19
work. 20
`(5) If, within 1 month after the notice is given, the adjoining 21
owners have not agreed about their contributions to carrying 22
out the fencing work, either adjoining owner may, within 2 23
months after the notice is given, apply to QCAT for an order 24
under section 245XQ. 25
`Subdivision 3 Resolving disputes 26
`245XO Jurisdiction 27
`(1) QCAT has jurisdiction to hear and decide any matter arising 28
under this part. 29
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`(2) If there is more than 1 fence on the boundary of adjoining 1
land, QCAT may decide which of the fences is the dividing 2
fence for this part and order the removal of the other fence or 3
fences. 4
`(3) If there is a fence other than a dividing fence on adjoining 5
land, QCAT may order that it be removed if QCAT considers 6
its removal is necessary to allow fencing work for a dividing 7
fence. 8
`245XP Representation 9
`Without limiting the QCAT Act, section 43, in a proceeding 10
under this part an adjoining owner may be represented by a 11
real estate agent. 12
Note-- 13
The QCAT Act, section 43 allows a person to be represented by 14
someone else if the person has impaired capacity or the person has been 15
given leave by QCAT. 16
`245XQ Orders about carrying out fencing work 17
`(1) QCAT may, for an application about fencing work for a 18
dividing fence forming part of a pool barrier, decide and order 19
1 or more of the following-- 20
(a) the line on which the fencing work is to be carried out, 21
whether or not that line is on the common boundary of 22
the adjoining land; 23
(b) the fencing work to be carried out, including the kind of 24
dividing fence involved and any access to land for 25
carrying out the fencing work; 26
(c) the way in which contributions for the fencing work are 27
to be apportioned or reapportioned or the amount that 28
each adjoining owner is liable to pay for the fencing 29
work if the order is consistent with section 245XH; 30
(d) the part of the dividing fence to be constructed or 31
repaired by either adjoining owner; 32
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(e) when the fencing work is to be carried out; 1
(f) any other work to be carried out that is necessary to 2
carry out the fencing work ordered including work for a 3
retaining wall; 4
(g) that a fence has been used, or could lawfully be used, as 5
a dividing fence forming part of a pool barrier; 6
(h) the amount of compensation payable to an adjoining 7
owner for damage or destruction to a dividing fence 8
forming part of a pool barrier caused by the other 9
adjoining owner or a person mentioned in section 10
245XJ(1)(b); 11
(i) that an adjoining owner remove a thing attached to a 12
dividing fence and restore the fence; 13
(j) the amount of compensation payable to an adjoining 14
owner for the removal of a fence under section 15
245XO(3); 16
(k) whether or not a dividing fence forming part of a pool 17
barrier would comply with the pool safety standard; 18
(l) any other matter necessary for the administration of this 19
part. 20
`(2) The occupation of land on either side of a dividing fence 21
forming part of a pool barrier, as a result of an order that 22
fencing work is to be carried out on a line other than on the 23
common boundary of the adjoining land, does not affect the 24
title to, or possession of, the land. 25
`245XR Matters for QCAT consideration 26
`In deciding an application under this part QCAT may 27
consider all the circumstances of the application, including 28
the following-- 29
(a) any existing or previously existing dividing fence; 30
(b) the purposes for which the 2 parcels of adjoining land 31
are used, or intended to be used; 32
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(c) the kind of dividing fence normally used in the area; 1
(d) whether the dividing fence is capable of being 2
maintained by the adjoining owners; 3
(e) any policy adopted, or local law made, about dividing 4
fences by a local government for the area where either 5
parcel of land is situated; 6
(f) any requirement for fencing work in a development 7
approval for the land of either adjoining owner; 8
(g) any written agreement made between the adjoining 9
owners for the purposes of this part; 10
(h) the pool safety standard. 11
`245XS Application for order in absence of adjoining owner 12
`(1) An owner may apply to QCAT for an order, in the absence of 13
the adjoining owner, authorising the carrying out of fencing 14
work, including the way in which contributions for the work 15
are to be apportioned. 16
`(2) An order may be made under subsection (1) only if QCAT is 17
satisfied that the owner could not locate the adjoining owner 18
after making all reasonable inquiries. 19
Examples of reasonable inquiries-- 20
· searching the electoral roll or telephone directory 21
· making inquiries with immediate neighbours, tenants, real estate 22
agents and the local government about where the adjoining owner is 23
`(3) An owner who carries out fencing work authorised by an 24
order under this section and who later locates the adjoining 25
owner may-- 26
(a) give a copy of the order to the adjoining owner; and 27
(b) after 1 month from the day of giving a copy of the order, 28
recover from the adjoining owner the adjoining owner's 29
contribution as stated in the order. 30
`(4) The adjoining owner given a copy of an order under 31
subsection (1) may, within 1 month after being given the copy, 32
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apply to QCAT for a variation of the order and QCAT may 1
vary the order in any way it considers appropriate. 2
`(5) This section continues to apply to the owner or adjoining 3
owner even if, after the order was made, the owner or the 4
adjoining owner stopped owning the relevant parcel of land 5
consisting of the adjoining land. 6
`Division 5 Process for dealing with 7
unauthorised fencing work 8
`245XT Unauthorised fencing work 9
`An owner is taken to have carried out fencing work for a 10
dividing fence forming part of a pool barrier without 11
authorisation unless-- 12
(a) the adjoining owners have agreed under this part about 13
the fencing work being carried out; or 14
(b) QCAT has ordered that the fencing work be carried out; 15
or 16
(c) the fencing work is carried out under division 3. 17
`245XU Application before unauthorised fencing work 18
`(1) This section applies if an owner believes on reasonable 19
grounds that an adjoining owner intends to carry out fencing 20
work for a dividing fence forming part of a pool barrier 21
without authorisation. 22
`(2) The owner may apply to QCAT for an order preventing the 23
adjoining owner from carrying out the fencing work. 24
`(3) The owner must give the adjoining owner a copy of the 25
application at least 1 day before the application is heard. 26
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[s 218]
Note-- 1
Under the Acts Interpretation Act 1954, section 38(3), if the day before 2
the application is heard falls on a day that is not a business day, the last 3
day for giving a copy of the application is taken to be the next earlier 4
business day. 5
`(4) On application under this section, QCAT may make an order 6
preventing the adjoining owner from demolishing, or 7
tampering with, the dividing fence. 8
`245XV Application after unauthorised fencing work 9
`(1) This section applies if an owner carried out fencing work for a 10
dividing fence forming part of a pool barrier without 11
authorisation. 12
`(2) The adjoining owner, for whom the dividing fence forms part 13
of a pool barrier, may apply to QCAT for an order requiring 14
the owner to rectify the dividing fence. 15
`(3) The adjoining owner must give the owner a copy of the 16
application at least 3 days before the application is heard. 17
`(4) On application under this section, QCAT may make an order 18
requiring the owner to-- 19
(a) rectify the fencing work; and 20
(b) bear the costs of the rectification. 21
`Division 6 Process if common boundary not 22
agreed 23
`245XW Process if common boundary not agreed 24
`(1) This section applies if adjoining owners do not agree on the 25
position of the common boundary for the purposes of carrying 26
out fencing work under this part. 27
`(2) An owner may give a notice to the adjoining owner, or the 28
adjoining owner's agent, of the owner's intention to have the 29
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[s 218]
common boundary defined by a cadastral surveyor engaged 1
by the owner. 2
`(3) If an adjoining owner is given a notice under subsection (2), 3
the adjoining owner may, within 1 month after the notice is 4
given-- 5
(a) have the common boundary defined by a cadastral 6
surveyor engaged by the adjoining owner and give the 7
owner written advice of the common boundary as 8
defined by the cadastral surveyor; or 9
(b) give the owner written advice of the common boundary 10
as defined by the adjoining owner if the adjoining owner 11
is satisfied of the accurate position of the common 12
boundary. 13
`(4) Unless an owner who has given notice under subsection (2) 14
receives advice under subsection (3)(a), the owner may have 15
the common boundary defined by a cadastral surveyor 16
engaged by the owner. 17
`(5) If the common boundary defined by a cadastral surveyor 18
engaged by the owner under subsection (4) is in about the 19
same position as the position defined by the adjoining owner 20
in an advice under subsection (3)(b), the adjoining owner is 21
not liable for any of the reasonable cost of engaging the 22
cadastral surveyor. 23
`(6) If subsection (5) does not apply-- 24
(a) adjoining owners are each liable for half the reasonable 25
cost of engaging a cadastral surveyor under this section 26
to define the position of the common boundary; and 27
(b) if 1 adjoining owner pays the entire cost, the half 28
payable by the other adjoining owner is recoverable as a 29
debt by the first adjoining owner. 30
`(7) In this section-- 31
cadastral surveyor means a person registered as a cadastral 32
surveyor under the Surveyors Act 2003. 33
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[s 218]
`Division 7 General 1
`245XX Measurement of the height of a dividing fence or 2
pool barrier 3
`If a provision of this part relates to the height of a dividing 4
fence or pool barrier, the height of the fence or barrier is to be 5
measured using-- 6
(a) for a provision that relates to a regulated pool on only 1 7
of 2 parcels of adjoining land--the side of the fence or 8
barrier on the adjoining land with the regulated pool; or 9
(b) for a provision that relates to a regulated pool on each of 10
2 parcels of adjoining land--the shorter side of the 11
fence or barrier. 12
`245XY Substantial compliance is adequate 13
`Substantial compliance with any agreement, notice or order 14
mentioned in this part is adequate for this part. 15
`245XZ Giving documents 16
`(1) A document may be given to a person under this part in the 17
following ways-- 18
(a) leaving it with someone who is apparently an adult 19
living at the relevant address; 20
(b) if there is no-one at the relevant address--leaving it at 21
the relevant address in a position where it is reasonably 22
likely to come to the person's attention; 23
(c) if the relevant address is within a building or area to 24
which the person who gives the document has been 25
denied access--leaving it at the building or area in a 26
position where it is reasonably likely to come to the 27
person's attention; 28
(d) posting it to the relevant address. 29
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[s 219]
`(2) In a proceeding relating to this part, evidence of giving a 1
document may be given orally or by affidavit. 2
`(3) For this section, a justice may take and receive an affidavit 3
whether or not any matter to which the affidavit relates is 4
pending in any court or QCAT. 5
`(4) If there are 2 or more joint owners of land and a person can 6
not locate every owner, the document is taken to have been 7
given to all joint owners if the person gives the document to at 8
least 1 of the joint owners under this section. 9
`(5) This section does not limit the operation of the Acts 10
Interpretation Act 1954, part 10. 11
`(6) In this section-- 12
document means a notice or a copy of an order under this 13
part. 14
relevant address, for a person to be given a document, means 15
the person's usual or last known place of residence or business 16
and includes the person's address as provided by a local 17
government from its records. 18
`246 Descriptions in notice 19
`A description of land or a fence, line or boundary in a notice 20
under this part is adequate if it allows no reasonable doubt 21
about which land, fence, line or boundary is stated or if it is 22
shown that the person given the notice knew the relevant land, 23
fence, line or boundary.'. 24
219 Amendment of s 246AB (Nonconformity notice) 25
Section 246AB(2)(e)(ii), `safety pool inspector'-- 26
omit, insert-- 27
`pool safety inspector'. 28
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[s 220]
220 Amendment of s 246ATJ (Requirement to obtain pool 1
safety certificate for regulated pool that is not a shared 2
pool) 3
Section 246ATJ(2)-- 4
omit, insert-- 5
`(2) The person must ensure there is a pool safety certificate in 6
effect for the pool within-- 7
(a) generally--90 days after the day of settlement (the 8
usual period); or 9
(b) if, during the usual period, the person becomes a party 10
to a proceeding before QCAT relating to the barrier for 11
the pool--the usual period plus a further period equal to 12
the number of days the person was a party to the 13
proceeding. 14
Maximum penalty--165 penalty units.'. 15
221 Amendment of s 246ATK (Requirement to obtain pool 16
safety certificate for regulated pool that is a shared pool) 17
(1) Section 246ATK(2)-- 18
omit, insert-- 19
`(2) The owner must ensure there is a pool safety certificate in 20
effect for the pool within-- 21
(a) generally--90 days after the day of settlement under the 22
contract of sale for the premises (the usual period); or 23
(b) if, during the usual period, the owner becomes a party to 24
a proceeding before QCAT relating to the barrier for the 25
pool--the usual period plus a further period equal to the 26
number of days the owner was a party to the proceeding. 27
Maximum penalty--165 penalty units.'. 28
(2) Section 246ATK(4)-- 29
omit, insert-- 30
`(4) The owner must ensure there is a pool safety certificate in 31
effect for the pool within-- 32
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Part 12 Amendments of Acts and a regulation
[s 222]
(a) generally--90 days after the day the accommodation 1
agreement is entered into (the usual period); or 2
(b) if, during the usual period, the owner becomes a party to 3
a proceeding before QCAT relating to the barrier for the 4
pool--the usual period plus a further period equal to the 5
number of days the owner was a party to the proceeding. 6
Maximum penalty--165 penalty units.'. 7
222 Amendment of sch 2 (Dictionary) 8
(1) Schedule 2, definition regulated pool-- 9
omit. 10
(2) Schedule 2-- 11
insert-- 12
`adjoining land see section 245XA. 13
adjoining owner, for chapter 8, part 2A, see section 245XA. 14
dividing fence, for chapter 8, part 2A, see section 245XA. 15
fence, for chapter 8, part 2A, see section 245XA. 16
fencing work see section 245XA. 17
Neighbourhood Disputes Act means the Neighbourhood 18
Disputes Resolution Act 2011. 19
neighbouring pool see section 245XA. 20
notice of proposed fencing work see section 245XA. 21
owner, for land, for chapter 8, part 2A, see section 245XA. 22
pool barrier see section 245XA. 23
pool owner see section 245XA. 24
proposed regulated pool, for chapter 8, part 2A, see section 25
245XA. 26
special purpose fence, for chapter 8, part 2A, see section 27
245XA. 28
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Part 12 Amendments of Acts and a regulation
[s 223]
sufficient dividing fence, for chapter 8, part 2A, see section 1
245XA.'. 2
Division 4 Amendment of Building Act 1975 3
relating to residential care buildings 4
223 Act amended 5
This division amends the Building Act 1975. 6
224 Amendment of s 3 (Simplified outline of main provisions 7
of Act) 8
(1) Section 3(7) to (10)-- 9
renumber as section 3(8) to (11). 10
(2) Section 3-- 11
insert-- 12
`(7) Chapter 7A makes provision about fire safety for particular 13
residential care buildings.'. 14
225 Amendment of s 5 (What is building work) 15
Section 5(2), example-- 16
omit, insert-- 17
`Examples-- 18
· a management procedure under the fire safety standard relating to a 19
budget accommodation building 20
· a management procedure under the fire safety standard (RCB) 21
relating to a residential care building'. 22
226 Amendment of s 30 (Relevant laws and other documents 23
for assessment of building work) 24
(1) Section 30(1)(d) to (g)-- 25
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[s 227]
renumber as section 30(1)(e) to (h). 1
(2) Section 30(1)-- 2
insert-- 3
`(d) the fire safety standard (RCB);'. 4
227 Amendment of s 63 (Restriction on granting building 5
development application for budget accommodation 6
building) 7
Section 63, heading, `application'-- 8
omit, insert-- 9
`approval'. 10
228 Insertion of new s 63A 11
After section 63-- 12
insert-- 13
`63A Restriction on granting building development 14
approval for residential care building 15
`(1) This section applies to a building development application for 16
building work that includes an alteration to a residential care 17
building to which chapter 7A applies. 18
`(2) The assessment manager must not approve the application 19
unless-- 20
(a) the application also relates to building work (if any) to 21
be carried out to the rest of the residential care building; 22
and 23
(b) the assessment manager is satisfied that, after the 24
building work is completed, the whole of the residential 25
care building will comply with the fire safety standard 26
(RCB). 27
`(3) In this section-- 28
alteration, to a residential care building, means-- 29
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Part 12 Amendments of Acts and a regulation
[s 229]
(a) an alteration affecting more than 20% of the floor area 1
of the building; or 2
(b) an addition of more than 20% to the floor area of the 3
building.'. 4
229 Amendment of s 81 (Building development approval for 5
particular alterations may require existing building or 6
structure to comply with building assessment 7
provisions) 8
Section 81(2)-- 9
omit, insert-- 10
`(2) However, this section does not apply if-- 11
(a) the alterations are for-- 12
(i) a budget accommodation building to which chapter 13
7, part 3 applies; or 14
(ii) a residential care building to which chapter 7A, 15
part 4 applies; and 16
(b) the purpose of the alterations is to ensure the building 17
complies with-- 18
(i) for a budget accommodation building--the fire 19
safety standard; or 20
(ii) for a residential care building--the fire safety 21
standard (RCB).'. 22
230 Amendment of s 103 (Certificate requirements) 23
(1) Section 103(e)-- 24
omit, insert-- 25
`(e) if the development uses a building solution under the 26
BCA or QDC and the solution-- 27
(i) restricts the use or occupation of the 28
building--state the restriction; or 29
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Part 12 Amendments of Acts and a regulation
[s 231]
(ii) requires a management procedure relating to 1
systems or procedures--state the management 2
procedure; and'. 3
(2) Section 103(f), before `procedures'-- 4
insert-- 5
`management'. 6
231 Amendment of s 108A (Owner's obligations about access 7
to certificate of classification) 8
Section 108A(7)-- 9
omit. 10
232 Insertion of new ch 7A 11
After section 231-- 12
insert-- 13
`Chapter 7A Fire safety for residential 14
care buildings built, 15
approved or applied for, 16
before 1 June 2007 17
`Part 1 Application of chapter 7A 18
`231AA Application of ch 7A 19
`(1) This chapter applies to a residential care building only if it is 20
operating as a residential care building on 1 September 2011 21
and-- 22
(a) construction of the building started before 1 June 2007; 23
or 24
(b) a building development approval for the construction of 25
the building was given before 1 June 2007 and 26
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[s 232]
construction of the building was started on or after 1 1
June 2007; or 2
(c) all of the following apply-- 3
(i) a building development application for the 4
construction of the building was made before 1 5
June 2007; 6
(ii) a building development approval for the 7
construction of the building was given on or after 1 8
June 2007; 9
(iii) construction of the building was started on or after 10
1 June 2007. 11
`(2) However, this chapter does not apply to a residential care 12
building if-- 13
(a) chapter 7 applies to the building; or 14
(b) the building complies with QDC, part MP 2.2. 15
`Part 2 Interpretation 16
`231AB Definitions for ch 7A 17
`In this chapter-- 18
assessment category, for an RCB, see section 231AD. 19
fire safety (RCB) compliance certificate see section 20
231AI(6). 21
fire safety standard (RCB) see section 231AE. 22
RCB means residential care building. 23
RCB assessment report see section 231AI(1). 24
RCB assessor see section 231AF. 25
residential care building see section 231AC. 26
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[s 232]
type A construction means the type of construction referred to 1
as type A construction in the BCA, part C1. 2
type B construction means the type of construction referred to 3
as type B construction in the BCA, part C1. 4
type C construction means the type of construction that is 5
neither a type A construction nor a type B construction. 6
`231AC What is a residential care building (or RCB) 7
`(1) A residential care building (or RCB) is a building-- 8
(a) that is operated as a place of residence for 6 or more 9
persons; and 10
(b) where at least 10% of the residents-- 11
(i) need physical assistance in conducting their daily 12
activities; and 13
(ii) would need physical assistance to evacuate the 14
building during an emergency. 15
`(2) However, none of the following is an RCB-- 16
(a) a hospital; 17
(b) a dwelling in which 2 or more members of a family and 18
not more than 2 other persons would ordinarily be 19
resident; 20
(c) a building in which only one resident-- 21
(i) needs physical assistance to conduct their daily 22
activities; and 23
(ii) would need physical assistance to evacuate the 24
building during an emergency. 25
`231AD What are the assessment categories for RCBs 26
`The following are the assessment categories for RCBs-- 27
(a) assessment category 1, for an RCB-- 28
(i) of type B construction or type C construction; and 29
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Part 12 Amendments of Acts and a regulation
[s 232]
(ii) with a rise of 2 or more storeys; 1
(b) assessment category 2, for an RCB-- 2
(i) of type A construction; or 3
(ii) of type B construction or type C construction with 4
a rise of 1 storey. 5
`Part 3 Fire safety standard (RCB) 6
`231AE What is the fire safety standard (RCB) 7
`(1) The fire safety standard (RCB) is-- 8
(a) QDC, part MP 2.3; or 9
(b) any other standard prescribed under a regulation for 10
ensuring all the residents of an RCB may be safely 11
evacuated in the event of a fire in the RCB. 12
`(2) A prescribed standard may, for fire safety purposes, provide 13
for all or any of the following for the RCB-- 14
(a) the minimum ratio of nominated persons to residents of 15
the RCB; 16
(b) the provision and maintenance of fire safety systems; 17
(c) training programs for persons employed in, and 18
residents of, an RCB about-- 19
(i) fire management and prevention; or 20
(ii) emergency evacuation; 21
(d) any other matter to provide appropriately for the safety 22
of persons in an RCB. 23
`(3) In this section-- 24
nominated person means-- 25
(a) a person employed in the RCB; or 26
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Part 12 Amendments of Acts and a regulation
[s 232]
(b) another person who is able to physically assist a resident 1
to evacuate the RCB during an emergency. 2
`Part 3A RCB assessors 3
`231AF Who is an RCB assessor 4
`Each of the following is an RCB assessor-- 5
(a) a building certifier; 6
(b) a public service employee approved by the chief 7
executive to carry out an assessment of an RCB for this 8
chapter. 9
`231AG Chief executive may approve public service 10
employees to assess RCBs 11
`(1) The chief executive may approve a public service employee to 12
carry out an assessment of an RCB for this chapter. 13
`(2) The chief executive may only approve a public service 14
employee if the chief executive reasonably considers the 15
employee has the qualifications, knowledge or experience 16
appropriate for carrying out an assessment of an RCB. 17
`Part 4 Assessment of residential care 18
buildings 19
`231AH Owner must have RCB assessed for assessment 20
category and compliance with fire safety standard 21
(RCB) 22
`(1) The owner of an RCB must, before 1 March 2012, or a later 23
date prescribed under a regulation, ensure the RCB is assessed 24
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Part 12 Amendments of Acts and a regulation
[s 232]
by an RCB assessor to decide-- 1
(a) the assessment category for the RCB; and 2
(b) if the RCB complies with the fire safety standard 3
(RCB). 4
Maximum penalty--165 penalty units. 5
`(2) For the assessment, the owner must give the RCB assessor-- 6
(a) a plan of the RCB drawn to scale; and 7
(b) the necessary information to enable the assessor to make 8
the assessment. 9
Example of information-- 10
The usual number of residents in the RCB. 11
`231AI RCB assessment reports 12
`(1) An RCB assessor who assesses an RCB must, as soon as 13
practicable, give the owner of the RCB and, if the owner is not 14
its operator, the operator a report in the approved form (an 15
RCB assessment report) about the RCB assessor's decision 16
relating to-- 17
(a) the assessment category for the RCB; and 18
(b) whether the RCB complies with the fire safety standard 19
(RCB); and 20
(c) if the RCB does not comply with the fire safety standard 21
(RCB), the way the RCB does not comply, including the 22
provisions of the fire safety standard (RCB) with which 23
the RCB does not comply. 24
`(2) If the RCB does not comply with the fire safety standard 25
(RCB) in relation to sprinklers, the report must also include a 26
statement of-- 27
(a) the parts of the RCB for which requirements under the 28
fire safety standard (RCB) about sprinklers are not met; 29
and 30
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Part 12 Amendments of Acts and a regulation
[s 232]
(b) the area of each of those parts, expressed in square 1
metres. 2
`(3) For subsection (2)(a), a part of the RCB may be described by 3
reference to the plan of the RCB given to the assessor by the 4
owner of the RCB under section 231AH(2)(a). 5
`(4) Also, the RCB assessment report must include the 6
following-- 7
(a) a copy of the plan of the RCB given to the assessor by 8
the owner of the RCB under section 231AH(2)(a); 9
(b) whether the RCB is of type A construction, type B 10
construction or type C construction; 11
(c) the number of the rise of storeys for the RCB; 12
(d) the usual number of residents in the RCB according to 13
information given by the owner of the RCB; 14
(e) any other matter prescribed under a regulation. 15
`(5) The RCB assessment report must be, or include, an 16
information notice about the RCB assessor's decision. 17
Note-- 18
There is a right of appeal to a building and development dispute 19
resolution committee against a decision about the assessment category 20
or whether the RCB complies with the fire safety standard (RCB). See 21
the Planning Act, section 532. 22
`(6) If the RCB assessor decides the RCB complies with the fire 23
safety standard (RCB), the RCB assessor must issue a 24
certificate in the approved form (a fire safety (RCB) 25
compliance certificate) for the RCB. 26
`231AJ Further assessment by RCB assessor 27
`(1) This section applies if -- 28
(a) an RCB assessment report (the original report) states 29
that an RCB does not comply with the fire safety 30
standard (RCB); and 31
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Local Government Electoral Bill 2011
Part 12 Amendments of Acts and a regulation
[s 232]
(b) after building work necessary to make the RCB comply 1
with the fire safety standard (RCB) is carried out, the 2
owner of the RCB asks an RCB assessor to reassess the 3
RCB; and 4
(c) the RCB assessor is not the one who gave the original 5
report. 6
`(2) The RCB assessor may, for issuing a fire safety (RCB) 7
compliance certificate or certificate of classification for the 8
RCB, accept and, without further checking, rely on the 9
original report. 10
`231AK When owner must obtain fire safety (RCB) 11
compliance certificate or certificate or classification 12
`The owner of an RCB must, unless the owner has a 13
reasonable excuse, obtain a fire safety (RCB) compliance 14
certificate for the RCB, or a certificate of classification 15
relating to building work done to the RCB to make it comply 16
with the fire safety standard (RCB), by the latest of the 17
following days-- 18
(a) for an RCB with the assessment category 1-- 19
(i) 1 September 2014; or 20
(ii) a day prescribed under a regulation that is later 21
than 1 September 2014; or 22
(iii) a day approved by a local government under 23
section 231AL that is later than 1 September 2014 24
but not later than 1 September 2015; 25
(b) for an RCB with the assessment category 2-- 26
(i) 1 September 2016; or 27
(ii) a day prescribed under a regulation that is later 28
than 1 September 2016; or 29
(iii) a day approved by a local government under 30
section 231AL that is later than 1 September 2016 31
but not later than 1 September 2017. 32
Maximum penalty--165 penalty units. 33
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Local Government Electoral Bill 2011
Part 12 Amendments of Acts and a regulation
[s 232]
`231AL Approval of later day for obtaining fire safety (RCB) 1
compliance certificate or certificate of classification 2
`(1) The owner of an RCB may make written application to the 3
relevant local government to approve a later day for the RCB 4
under section 231AK(a)(iii) or (b)(iii). 5
`(2) However, the application can only be made-- 6
(a) for an RCB with the assessment category 1--before the 7
later of the days mentioned in section 231AK(a)(i) or 8
(ii); or 9
(b) for an RCB with the assessment category 2--before the 10
later of the days mentioned in section 231AK(b)(i) or 11
(ii). 12
`(3) The local government-- 13
(a) must consult with QFRS; and 14
(b) may-- 15
(i) consult with any entity it considers appropriate in 16
deciding the application; and 17
(ii) grant the application only if it is satisfied undue 18
hardship would be caused to the occupants of the 19
RCB if the application were refused. 20
`(4) The local government may grant the application with or 21
without the reasonable conditions it considers appropriate. 22
`(5) Within 20 business days after receiving the application, the 23
local government must-- 24
(a) decide the application; and 25
(b) give the owner an information notice about the decision. 26
`(6) The owner must comply with each condition imposed on the 27
approval. 28
Maximum penalty--165 penalty units. 29
Note-- 30
There is a right of appeal to a building and development dispute 31
resolution committee against the decision on the application or a failure 32
to decide the application. See the Planning Act, section 532. 33
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Local Government Electoral Bill 2011
Part 12 Amendments of Acts and a regulation
[s 232]
`(7) Within 20 business days after giving an approval, the local 1
government must give the chief executive notice of the 2
approval. 3
`231AM Owner and operator must ensure RCB continues to 4
comply with fire safety standard (RCB) 5
`(1) This section applies if a fire safety (RCB) compliance 6
certificate, or a certificate of classification relating to building 7
work done to an RCB to make it comply with the fire safety 8
standard (RCB), is issued for an RCB. 9
`(2) Unless the person has a reasonable excuse, the owner of an 10
RCB and, if the owner is not its operator, the operator must-- 11
(a) ensure the RCB complies with the fire safety standard 12
(RCB) at all times; and 13
(b) if any event causes the RCB not to comply-- 14
(i) as soon as practicable, take action necessary to 15
restore compliance; and 16
(ii) have the RCB assessed by an RCB assessor; and 17
(iii) obtain a fire safety (RCB) compliance certificate, 18
or a certificate of classification, for the RCB. 19
Maximum penalty--165 penalty units. 20
Example of event causing RCB not to comply-- 21
A change in the operation of the RCB including, for example a change 22
to the ratio of staff to residents. 23
`Part 5 General 24
`231AN General obligations of operator of RCB 25
`(1) This section applies if the owner of an RCB is not its operator. 26
`(2) The operator must-- 27
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Local Government Electoral Bill 2011
Part 12 Amendments of Acts and a regulation
[s 232]
(a) give the owner reasonable access to the RCB to enable 1
to owner to comply with the owner's obligations under 2
this chapter; and 3
(b) give the owner the necessary information, including, for 4
example, plans of the RCB, the owner requires to 5
comply with the owner's obligations under this chapter; 6
and 7
(c) do anything else that is reasonably required to enable the 8
owner to comply with the owner's obligations under this 9
chapter. 10
Maximum penalty--165 penalty units. 11
`231AO Owner must give RCB assessment report to chief 12
executive and local government 13
`(1) Subject to subsection (2), the owner of an RCB must give an 14
RCB assessment report for an RCB to the chief executive and 15
the relevant local government within 10 business days after 16
receiving the report, unless the owner has a reasonable excuse. 17
Maximum penalty--50 penalty units. 18
`(2) However, if the RCB assessor who gave the owner the RCB 19
report is not a private certifier, the owner need not give a copy 20
of the RCB report to-- 21
(a) if the RCB assessor is a local government building 22
certifier--the local government; or 23
(b) if the RCB assessor is approved under section 24
231AF(b)--the chief executive. 25
`231AP Owner must give fire safety (RCB) compliance 26
certificate to chief executive and local government 27
`(1) If an owner of an RCB is given a fire safety (RCB) 28
compliance certificate for the RCB, the owner must, within 10 29
business days, give a copy of the certificate to each of the 30
following, unless the owner has a reasonable excuse-- 31
(a) the chief executive; 32
Page 192
Local Government Electoral Bill 2011
Part 12 Amendments of Acts and a regulation
[s 233]
(b) the relevant local government; 1
(c) if the owner is not its operator, the operator. 2
Maximum penalty--50 penalty units. 3
`(2) If an owner of an RCB is given a certificate of classification 4
relating to building work done to the RCB to make it comply 5
with the fire safety standard (RCB), the owner must, within 10 6
business days, give a copy of the certificate to the chief 7
executive, unless the owner has a reasonable excuse. 8
Maximum penalty--50 penalty units. 9
`231AQ Obligations about access to fire safety (RCB) 10
compliance certificate 11
`(1) An authorised officer may require the owner of an RCB and, 12
if the owner is not its operator, the operator to produce for 13
inspection, the fire safety (RCB) compliance certificate, if 14
any, for the RCB at the RCB. 15
`(2) The owner or the operator of the RCB must comply with the 16
requirement, unless the owner has a reasonable excuse. 17
Maximum penalty--50 penalty units. 18
`(3) For subsection (1), a reference to the fire safety (RCB) 19
compliance certificate includes a reference to a copy of the 20
certificate. 21
Note-- 22
For an owner's obligation to produce a certificate of classification see 23
section 108A.'. 24
233 Amendment of s 231A (Definitions for ch 8) 25
Section 231A, definition member-- 26
omit. 27
234 Amendment of s 256 (Prosecution of offences) 28
(1) Section 256(2)(a)-- 29
Page 193
Local Government Electoral Bill 2011
Part 12 Amendments of Acts and a regulation
[s 235]
omit, insert-- 1
`(a) for an offence against section 108A, 114A or 2
231AM--an authorised officer; or'. 3
(2) Section 256(2)(c) to (j)-- 4
renumber as section 256(2)(d) to (k). 5
(3) Section 256(2)-- 6
insert-- 7
`(c) for an offence against chapter 7A, other than section 8
231AM-- 9
(i) the chief executive; or 10
(ii) an authorised person under the Local Government 11
Act 2009 carrying out functions relating to this 12
Act; or'. 13
235 Replacement of sch 1 (The QDC on 15 April 2010) 14
Schedule 1-- 15
omit, insert-- 16
Page 194
Local Government Electoral Bill 2011
Part 12 Amendments of Acts and a regulation
[s 235]
`Schedule 1 The QDC on 14 June 2011 1
section 13 2
`Part Description Former
part
reference
Siting and amenity--detached housing
MP 1.1 Design and siting standard for single detached housing on lots 11
under 450m2, but only--
(a) the headings `application' and `commencement' and the
words under those headings; and
(b) performance criteria 1, 2, 3 and 6; and
(c) the relevant acceptable solutions for the performance
criteria; and
(d) definitions relevant to the provisions mentioned in
paragraphs (a) to (c)
MP 1.2 Design and siting standard for single detached housing on lots 12
450m2 and over, but only--
(a) the headings `application' and `commencement' and the
words under those headings; and
(b) performance criteria 1, 2, 3 and 6; and
(c) the relevant acceptable solutions for the performance
criteria; and
(d) definitions relevant to the provisions mentioned in
paragraphs (a) to (c)
MP 1.3 Design and siting standards for duplex housing --
Fire safety
MP 2.1 Fire safety in budget accommodation buildings 14
MP 2.2 Fire safety in residential care buildings 14.1
MP 2.3 Fire safety in existing residential buildings (pre 1 June 2007) --
Page 195
Local Government Electoral Bill 2011
Part 12 Amendments of Acts and a regulation
[s 235]
`Part Description Former
part
reference
Special buildings and structures
MP 3.1 Floating buildings 31
MP 3.2 Tents 28
MP 3.3 Temporary accommodation buildings and structures --
MP 3.4 Swimming pool barriers --
Building sustainability
MP 4.1 Sustainable buildings 29
MP 4.2 Water savings targets 25
MP 4.3 Alternative water sources--commercial buildings --
MP 4.4 Buildings in a transport noise corridor --
General health, safety and amenity
MP 5.1 Workplaces 1
MP 5.2 Higher risk personal appearance services 15
MP 5.3 Retail meat premises 4
MP 5.4 Child care centres 22
MP 5.5 Private health facilities 7
MP 5.6 Pastoral workers' accommodation 21
MP 5.7 Residential services building standard 20
MP 5.8 Workplaces involving spray painting 2
Maintenance of buildings
MP 6.1 Maintenance of fire safety installations --'.
Page 196
Local Government Electoral Bill 2011
Part 12 Amendments of Acts and a regulation
[s 236]
236 Amendment of sch 2 (Dictionary) 1
(1) Schedule 2, definition member, of a person's family-- 2
omit. 3
(2) Schedule 2-- 4
insert-- 5
`assessment category, for an RCB, for chapter 7A, see section 6
231AD. 7
authorised officer means-- 8
(a) a fire service officer under the Fire and Rescue Service 9
Act 1990; or 10
(b) an authorised person under the Local Government Act 11
2009 carrying out functions relating to this Act. 12
fire safety (RCB) compliance certificate, for chapter 7A, see 13
section 231AI(6). 14
fire safety standard (RCB) see section 231AE. 15
member, of a person's family, means the person and each of 16
the following-- 17
(a) the person's spouse; 18
(b) the parents of the person or the person's spouse; 19
(c) the grandparents of the person or the person's spouse; 20
(d) a brother, sister, nephew, niece or first cousin of the 21
person or the person's spouse; 22
(e) a child, stepchild or grandchild of the person; 23
(f) the spouse of anyone mentioned in paragraph (b), (c), 24
(d) or (e). 25
RCB, for chapter 7A, see section 231AB. 26
RCB assessment report, for chapter 7A, see section 231AI(1). 27
RCB assessor, for chapter 7A, see section 231AF. 28
residential care building see section 231AC. 29
type A construction, for chapter 7A, see section 231AB. 30
Page 197
Local Government Electoral Bill 2011
Part 12 Amendments of Acts and a regulation
[s 237]
type B construction, for chapter 7A, see section 231AB. 1
type C construction, for chapter 7A, see section 231AB.'. 2
(3) Schedule 2, definition local government building certifier-- 3
insert-- 4
`(c) for a provision about an RCB to which chapter 7A 5
applies--means a building certifier appointed or 6
employed by the relevant local government.'. 7
Division 5 Amendment of City of Brisbane Act 8
2010 9
237 Act amended 10
This division amends the City of Brisbane Act 2010. 11
238 Amendment of s 13 (Who the council is constituted by) 12
Section 13(1), `Electoral Act'-- 13
omit, insert-- 14
`Local Government Electoral Act 2011'. 15
239 Amendment of s 39 (Election advertising) 16
Section 39(2)-- 17
omit, insert-- 18
`(2) A how-to-vote card includes a how-to-vote card under the 19
Electoral Act.'. 20
240 Insertion of new ch 3, pt 5 21
Chapter 3-- 22
insert-- 23
Page 198
Local Government Electoral Bill 2011
Part 12 Amendments of Acts and a regulation
[s 240]
`Part 5 Caretaker period arrangements 1
`92A Caretaker period 2
`(1) The caretaker period for the council is the period during an 3
election for the council that-- 4
(a) starts on the day when public notice of the holding of 5
the election is given under the Local Government 6
Electoral Act 2011, section 25(1); and 7
(b) ends at the conclusion of the election. 8
`(2) There is no caretaker period during a by-election or fresh 9
election under the Local Government Electoral Act 2011. 10
`92B Prohibition on major policy decision in caretaker 11
period 12
`(1) The council must not make a major policy decision during a 13
caretaker period for the council. 14
`(2) However, if the council considers that, having regard to 15
exceptional circumstances that apply, it is necessary to make 16
the major policy decision in the public interest, the council 17
may apply to the Minister for approval to make the decision. 18
`(3) The Minister may give the approval if the Minister is satisfied 19
that, having regard to exceptional circumstances that apply, it 20
is necessary for the council to make the major policy decision 21
in the public interest. 22
`(4) The Minister's approval may be given on conditions with 23
which the council must comply. 24
`92C Invalidity of major policy decision in caretaker period 25
without approval 26
`(1) A major policy decision made by the council during a 27
caretaker period for the council is invalid to the extent the 28
Page 199
Local Government Electoral Bill 2011
Part 12 Amendments of Acts and a regulation
[s 241]
council-- 1
(a) does not have the Minister's approval under section 92B 2
to make the decision; or 3
(b) does not comply with any conditions of the Minister's 4
approval under section 92B(4). 5
`(2) A contract is void if it is the subject of a major policy decision 6
that is invalid. 7
`(3) A person who acts in good faith in relation to a major policy 8
decision of the council, or in relation to a contract that is the 9
subject of a major policy decision, but who suffers loss or 10
damage because of any invalidity of the decision under 11
subsection (1) or because the contract is void under subsection 12
(2), has a right to be compensated by the council for the loss 13
or damage. 14
`(4) The person may bring a proceeding to recover the 15
compensation in a court of competent jurisdiction. 16
`92D Prohibition on election material in caretaker period 17
`(1) The council must not, during a caretaker period for the 18
council, publish or distribute election material. 19
`(2) Election material is anything able to, or intended to-- 20
(a) influence an elector about voting at an election; or 21
(b) affect the result of an election.'. 22
241 Amendment of s 164 (Filling a vacancy in the office of 23
mayor) 24
Section 164(2)(a), `appointing another'-- 25
omit, insert-- 26
`the council appointing, by resolution, another'. 27
Page 200
Local Government Electoral Bill 2011
Part 12 Amendments of Acts and a regulation
[s 242]
242 Amendment of s 166 (Filling a vacancy in the office of 1
another councillor) 2
(1) Section 166(2), `council must fill the vacant office'-- 3
omit, insert-- 4
`the vacant office must be filled'. 5
(2) Section 166(3), `appointing a'-- 6
omit, insert-- 7
`the council appointing, by resolution, a'. 8
243 Omission of s 263 (Transitional provisions for elections) 9
Section 263-- 10
omit. 11
244 Amendment of schedule (Dictionary) 12
(1) Schedule, definition how-to-vote card-- 13
omit, insert-- 14
`how-to-vote card see the Local Government Electoral Act 15
2011, schedule.'. 16
(2) Schedule-- 17
insert-- 18
`caretaker period, for the council, see section 92A(1). 19
major policy decision, of the council, means a decision-- 20
(a) about the appointment of a chief executive officer; or 21
(b) about the remuneration of the chief executive officer; or 22
(c) to terminate the employment of the chief executive 23
officer; or 24
(d) to enter into a contract the total value of which is more 25
than the greater of the following-- 26
(i) $150000; 27
Page 201
Local Government Electoral Bill 2011
Part 12 Amendments of Acts and a regulation
[s 245]
(ii) 1% of the council's net rate and utility charges as 1
stated in the council's audited financial statements 2
included in the council's most recently adopted 3
annual report.'. 4
Division 6 Amendment of Criminal Code 5
245 Code amended 6
This division amends the Criminal Code. 7
246 Amendment of ch 14, div 2, hdg (Legislative Assembly 8
and Brisbane City Council elections and referendums) 9
Chapter 14, chapter division 2, heading, `and Brisbane City 10
Council'-- 11
omit. 12
247 Amendment of s 98A (Reference to election or 13
referendum) 14
Section 98A(a)-- 15
omit, insert-- 16
`(a) a reference to an election is a reference to an election of 17
a member or members of the Legislative Assembly; 18
and'. 19
Division 7 Amendment of Electoral Act 1992 20
248 Act amended 21
This division amends the Electoral Act 1992. 22
249 Amendment of s 30 (Electoral registrars) 23
Section 30(3)-- 24
Page 202
Local Government Electoral Bill 2011
Part 12 Amendments of Acts and a regulation
[s 250]
omit, insert-- 1
`(3) Divisional returning officers under the Commonwealth 2
Electoral Act may be appointed as electoral registrars if the 3
appointments are made under an arrangement between the 4
Governor and the Governor-General.'. 5
250 Amendment of s 137 (Supreme Court to be Court of 6
Disputed Returns) 7
Section 137(1), `this Act and the'-- 8
omit, insert-- 9
`this Act, the Local Government Electoral Act 2011 and the'. 10
Division 8 Amendment of the Information 11
Privacy Act 2009 12
251 Act amended 13
This division amends the Information Privacy Act 2009. 14
252 Amendment of s 126 (Disciplinary action) 15
Section 126(3), definition responsible Minister, paragraph (d), 16
`Local Government Act 1993'-- 17
omit, insert-- 18
`Local Government Act 2009'. 19
Division 9 Amendment of Local Government 20
Act 2009 21
253 Act amended 22
This division amends the Local Government Act 2009. 23
Page 203
Local Government Electoral Bill 2011
Part 12 Amendments of Acts and a regulation
[s 254]
254 Amendment of s 36 (Election advertising) 1
Section 36(2), `Act or Local Government Electoral Act'-- 2
omit, insert-- 3
`Act'. 4
255 Insertion of new s 85A 5
After section 85-- 6
insert-- 7
`85A Trust change decisions if no community forum 8
`(1) This section applies if-- 9
(a) a trustee council proposes to make a trust change 10
decision; and 11
(b) a community forum has not been established for the 12
division of the local government where the trust land is 13
located. 14
`(2) A trust change decision is a decision-- 15
(a) to put an improvement (including a structure, for 16
example) on trust land; or 17
(b) to create an interest in trust land (including a lease or 18
mortgage, for example); or 19
(c) that the trustee council has decided, by resolution, must 20
be dealt with as a trust change proposal within the 21
meaning of section 85(2). 22
`(3) The trust change decision has effect only if-- 23
(a) the decision is approved by a majority of the councillors 24
(other than the mayor), regardless of how many 25
councillors take part in any meeting about the decision; 26
and 27
(b) the councillor for the division of the local government 28
area in which the trust land is located does not vote 29
against approving the decision.'. 30
Page 204
Local Government Electoral Bill 2011
Part 12 Amendments of Acts and a regulation
[s 256]
256 Amendment of s 87 (Community forums) 1
(1) Section 87(1)-- 2
omit, insert-- 3
`(1) This section applies if an indigenous regional council 4
establishes a community forum for the council or, if the 5
council is divided, any of its divisions.'. 6
(2) Section 87(2), `that is created under this Act'-- 7
omit, insert-- 8
`established by an indigenous regional council'. 9
(3) Section 87(4)(b), `elected'-- 10
omit, insert-- 11
`appointed'. 12
(4) Section 87(5) to (8)-- 13
omit, insert-- 14
`(5) The indigenous regional council must publish the following 15
information in a newspaper circulating generally in its local 16
government area-- 17
(a) the name of the community forum; 18
(b) the names of the members of the community forum. 19
`(6) The indigenous regional council must decide all matters 20
necessary for the operation of its community forums.'. 21
257 Amendment of s 88 (Members of a community forum) 22
Section 88(2) to (5)-- 23
omit, insert-- 24
`(2) A person is appointed as a member of a community forum 25
(other than as chairperson)-- 26
(a) by a resolution of the indigenous regional council for the 27
forum; and 28
Page 205
Local Government Electoral Bill 2011
Part 12 Amendments of Acts and a regulation
[s 258]
(b) under a merits based selection process conducted by the 1
indigenous regional council for the forum after a call for 2
expressions of interest in appointment is advertised in a 3
newspaper circulating generally in the council's local 4
government area. 5
`(3) A person is not qualified to be appointed as a member if the 6
person is the mayor of the indigenous regional council. 7
`(4) A person stops being a member if the person-- 8
(a) resigns by signed notice of resignation given to the 9
indigenous regional council for the community forum; 10
or 11
(b) completes a term of office and is not re-appointed.'. 12
258 Amendment of s 89 (Payments to elected members of a 13
community forum) 14
Section 89, `elected'-- 15
omit, insert-- 16
`appointed'. 17
259 Omission of s 90 (Convenors for a community forum) 18
Section 90-- 19
omit. 20
260 Insertion of new ch 3, pt 5 21
Chapter 3-- 22
insert-- 23
`Part 5 Caretaker period arrangements 24
`90A Caretaker period 25
`(1) The caretaker period for a local government is the period 26
during an election for the local government that-- 27
Page 206
Local Government Electoral Bill 2011
Part 12 Amendments of Acts and a regulation
[s 260]
(a) starts on the day when public notice of the holding of 1
the election is given under the Local Government 2
Electoral Act 2011, section 25(1); and 3
(b) ends at the conclusion the election. 4
`(2) There is no caretaker period during a by-election or fresh 5
election. 6
`90B Prohibition on major policy decision in caretaker 7
period 8
`(1) A local government must not make a major policy decision 9
during a caretaker period for the local government. 10
`(2) However, if the local government considers that, having 11
regard to exceptional circumstances that apply, it is necessary 12
to make the major policy decision in the public interest, the 13
local government may apply to the Minister for approval to 14
make the decision. 15
`(3) The Minister may give the approval if the Minister is satisfied 16
that, having regard to exceptional circumstances that apply, it 17
is necessary for the local government to make the major 18
policy decision in the public interest. 19
`(4) The Minister's approval may be given on conditions with 20
which the local government must comply. 21
`90C Invalidity of major policy decision in caretaker period 22
without approval 23
`(1) A major policy decision made by a local government during a 24
caretaker period for the local government is invalid to the 25
extent the local government-- 26
(a) does not have the Minister's approval under section 90B 27
to make the decision; or 28
(b) does not comply with any conditions of the Minister's 29
approval under section 90B(4). 30
`(2) A contract is void if it is the subject of a major policy decision 31
that is invalid. 32
Page 207
Local Government Electoral Bill 2011
Part 12 Amendments of Acts and a regulation
[s 261]
`(3) A person who acts in good faith in relation to a major policy 1
decision of a local government, or in relation to a contract that 2
is the subject of a major policy decision, but who suffers loss 3
or damage because of any invalidity of the decision under 4
subsection (1) or because the contract is void under subsection 5
(2), has a right to be compensated by the local government for 6
the loss or damage. 7
`(4) The person may bring a proceeding to recover the 8
compensation in a court of competent jurisdiction. 9
`90D Prohibition on election material in caretaker period 10
`(1) A local government must not, during a caretaker period for the 11
local government, publish or distribute election material. 12
`(2) Election material is anything able to, or intended to-- 13
(a) influence an elector about voting at an election; or 14
(b) affect the result of an election.'. 15
261 Insertion of new s 156A 16
After section 156-- 17
insert-- 18
`156A Disqualification about residence 19
`A person can not be a councillor (including the mayor) of the 20
Torres Strait Island Regional Council if the person does not 21
live in the council's local government area.'. 22
262 Insertion of new s 160A 23
Chapter 6, part 2, division 2-- 24
insert-- 25
`160A Extension of term of councillors elected at fresh 26
elections 27
`A regulation may declare that the councillors elected at a 28
fresh election are elected for a term ending at the conclusion 29
Page 208
Local Government Electoral Bill 2011
Part 12 Amendments of Acts and a regulation
[s 263]
of the quadrennial elections after the next quadrennial 1
elections.'. 2
263 Amendment of s 163 (When a vacancy in an office must 3
be filled) 4
Section 163(3), `2 months'-- 5
omit, insert-- 6
`12 weeks'. 7
264 Amendment of s 166 (Filling a vacancy in the office of 8
another councillor) 9
(1) Section 166(2), `must fill'-- 10
omit, insert-- 11
`must, by resolution, fill'. 12
(2) Section 166(5), `appointing a'-- 13
omit, insert-- 14
`the local government appointing, by resolution, a'. 15
265 Omission of s 284 (Continuation of electoral and related 16
provisions) 17
Section 284-- 18
omit. 19
266 Replacement of ch 9, hdg (Transitional provision for 20
Revenue and Other Legislation Amendment Act 2011) 21
Chapter 9, heading-- 22
omit, insert-- 23
`Chapter 9 Other transitional 24
provisions'. 25
Page 209
Local Government Electoral Bill 2011
Part 12 Amendments of Acts and a regulation
[s 267]
267 Insertion of new ch 9, pt 1, hdg 1
Chapter 9, before section 292-- 2
insert-- 3
`Part 1 Transitional provision for 4
Revenue and Other Legislation 5
Amendment Act 2011'. 6
268 Omission of ch 10, hdg (Transitional provision for 7
Sustainable Planning (Housing Affordability and 8
Infrastructure Charges Reform) Amendment Act 2011) 9
Chapter 10, heading-- 10
omit. 11
269 Insertion of new ch 9, pt 2, hdg 12
Before section 293-- 13
insert-- 14
`Part 2 Transitional provision for 15
Sustainable Planning (Housing 16
Affordability and Infrastructure 17
Charges Reform) Amendment 18
Act 2011'. 19
270 Omission of sch 2 (Local government elections) 20
Schedule 2-- 21
omit. 22
271 Amendment of sch 4 (Dictionary) 23
(1) Schedule 4, definitions how-to-vote-card and Local 24
Government Electoral Act-- 25
Page 210
Local Government Electoral Bill 2011
Part 12 Amendments of Acts and a regulation
[s 272]
omit. 1
(2) Schedule 4-- 2
insert-- 3
`caretaker period, for a local government, see section 90A(1). 4
how-to-vote card see the Local Government Electoral Act, 5
schedule. 6
Local Government Electoral Act means the Local 7
Government Electoral Act 2011. 8
major policy decision, for a local government, means a 9
decision-- 10
(a) about the appointment of a chief executive officer of the 11
local government; or 12
(b) about the remuneration of the chief executive officer of 13
the local government; or 14
(c) to terminate the employment of the chief executive 15
officer of the local government; or 16
(d) to enter into a contract the total value of which is more 17
than the greater of the following-- 18
(i) $150000; 19
(ii) 1% of the local government's net rate and utility 20
charges as stated in the local government's audited 21
financial statements included in the local 22
government's most recently adopted annual 23
report.'. 24
Division 10 Amendment of Mixed Use 25
Development Act 1993 26
272 Act amended 27
This division amends the Mixed Use Development Act 1993. 28
Page 211
Local Government Electoral Bill 2011
Part 12 Amendments of Acts and a regulation
[s 273]
273 Amendment of s 3 (Definitions) 1
(1) Section 3, definitions ordinary resolution, precinct and site-- 2
omit. 3
(2) Section 3-- 4
insert-- 5
`associate, of a person, means someone else with whom the 6
person is associated under section 214E. 7
body corporate-- 8
(a) for part 9, see section 166; or 9
(b) for schedule 1, see schedule 1, section 1. 10
body corporate manager, for a community body corporate or 11
precinct body corporate, means a person appointed by the 12
body corporate under section 192. 13
candidate, for schedule 1, see schedule 1, section 1. 14
caretaking service contractor see section 201R. 15
code contravention notice, for part 9A, see section 201Z(1). 16
code of conduct means-- 17
(a) for a voting member of the executive committee of a 18
community body corporate or precinct body 19
corporate--the code in schedule 2; or 20
(b) for a body corporate manager or caretaking service 21
contractor--the code in schedule 3; or 22
(c) for a letting agent--the code in schedule 4. 23
community development control by-laws see section 202(1). 24
corporation, for part 9, see section 166. 25
eligibility category, for schedule 1, see schedule 1, section 1. 26
executive committee, for schedule 1, see schedule 1, section 27
1. 28
executive member, for schedule 1, see schedule 1, section 1. 29
Page 212
Local Government Electoral Bill 2011
Part 12 Amendments of Acts and a regulation
[s 273]
financial year, for a community body corporate or precinct 1
body corporate, means a period in relation to which the body 2
corporate is required under section 177(1)(f) to prepare a 3
statement of accounts. 4
financier, for part 9A, see section 201S. 5
letting agent see section 201T(1). 6
letting agent authorisation, for part 9A, see section 201R. 7
letting agent business see section 201T(2). 8
majority resolution, for a properly convened general meeting 9
of a community body corporate or precinct body corporate, 10
means a resolution on a motion-- 11
(a) for which only 1 written vote may be exercised, other 12
than by proxy, for each lot mentioned in the body 13
corporate roll; and 14
(b) that is passed only if the votes counted for the motion 15
are more than 50% of the lots for which persons are 16
entitled to vote on the motion. 17
management rights, for part 9A, see section 201R. 18
nominee, of a member of a community body corporate or 19
precinct body corporate, means a person appointed by the 20
member under section 169(1). 21
ordinary member, for schedule 1, see schedule 1, section 1. 22
ordinary resolution means-- 23
(a) for a properly convened general meeting of a 24
community body corporate or precinct body 25
corporate--a resolution that is passed by the members 26
of the body corporate whose voting entitlements total 27
more than 50% of the total of all voting entitlements 28
recorded in the body corporate roll; or 29
(b) for a properly convened general meeting of a building 30
management committee--a resolution that is passed by 31
the members of the management committee whose 32
voting entitlements total more than 50% of the total of 33
Page 213
Local Government Electoral Bill 2011
Part 12 Amendments of Acts and a regulation
[s 273]
all voting entitlements recorded in the management 1
statement establishing the committee. 2
original owner, for part 9, see section 166. 3
precinct, of a mixed use scheme-- 4
(a) means generally a part of the site identified in the 5
scheme as a precinct; and 6
(b) for part 9A, see also section 201R. 7
precinct development control by-laws see section 208(1). 8
registered valuer means a valuer registered under the Valuers 9
Registration Act 1992. 10
relevant body corporate debt means any of the following 11
amounts owed by a person to a subsidiary body corporate-- 12
(a) a contribution or instalment of a contribution; 13
(b) a penalty for not paying a contribution or instalment of a 14
contribution by the date for payment; 15
(c) another amount associated with the ownership of a lot. 16
Examples of another amount-- 17
· an annual payment for parking under an exclusive use 18
by-law made by the subsidiary body corporate 19
· an amount owing to the subsidiary body corporate for lawn 20
mowing services arranged by the subsidiary body corporate 21
on behalf of the person 22
reviewable terms, for part 9A, see section 201R. 23
review advice, for part 9A, see section 201R. 24
service contract, for part 9A, see section 201R. 25
service contractor see section 201U. 26
site, of a mixed use scheme-- 27
(a) means generally the site of the scheme; and 28
(b) for part 9A, see also section 201R. 29
subsidiary body corporate-- 30
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[s 274]
(a) of, or in relation to, a community body corporate, 1
means-- 2
(i) a precinct body corporate that is a member of the 3
community body corporate; or 4
(ii) a body corporate created by the registration of a 5
building units or group titles plan that is a member 6
of the community body corporate; or 7
(b) of, or in relation to, a precinct body corporate, means a 8
body corporate created by the registration of a building 9
units or group titles plan that is a member of the precinct 10
body corporate. 11
transfer notice, for part 9A, see section 201ZB(b)(ii). 12
voting member, of the executive committee of a community 13
body corporate or precinct body corporate, see section 14
185A(1).'. 15
(3) Section 3, as amended by this Act, definitions-- 16
relocate to schedule 5 as inserted by this Act. 17
(4) Section 3, as amended by this Act, `In this Act--'-- 18
omit, insert-- 19
`The dictionary in schedule 5 defines particular words used in 20
this Act.'. 21
274 Insertion of new s 4A 22
Part 1-- 23
insert-- 24
`4A References to standard module 25
`(1) In this Act, the information included in square brackets after a 26
section heading is a reference to a similar section of the Body 27
Corporate and Community Management (Standard Module) 28
Regulation 2008. 29
`(2) The brackets and information do not form part of this Act.'. 30
Page 215
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[s 275]
275 Amendment of s 166 (Definitions) 1
Section 166-- 2
insert-- 3
`original owner, of a precinct development lot that has been 4
subdivided by a building unit or group titles plan, means the 5
person who was the proprietor of the lot immediately before it 6
was subdivided by the plan.'. 7
276 Amendment of s 169 (Members' nominees) 8
(1) Section 169(4) and (5)-- 9
omit. 10
(2) Section 169(3)-- 11
renumber as section 169(4). 12
(3) Section 169-- 13
insert-- 14
`(3) A nominee appointed by a subsidiary body corporate must be 15
a member of the subsidiary body corporate.'. 16
(4) Section 169-- 17
insert-- 18
`(5) A nominee appointed by a subsidiary body corporate must 19
represent the subsidiary body corporate-- 20
(a) in the way the subsidiary body corporate directs; and 21
(b) subject to paragraph (a), in a way that is in the best 22
interests of the subsidiary body corporate. 23
`(6) An appointment of a nominee in relation to a body corporate 24
ends when the first of the following happens-- 25
(a) the end of 1 year after the appointment; 26
(b) the secretary of the body corporate receives written 27
notice of-- 28
(i) the cancellation of the nominee's appointment; or 29
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[s 277]
(ii) the appointment of another nominee. 1
`(7) A written notice under subsection (4) or (6)(b) must be 2
signed-- 3
(a) for an appointment or cancellation made by a member 4
of the body corporate that is a corporation--by the 5
chairperson and secretary of the corporation; or 6
(b) otherwise--by the member.'. 7
277 Amendment of s 172 (Meetings of bodies corporate) 8
Section 172-- 9
insert-- 10
`(10A) Also, the application of the Building Units and Group Titles 11
Act 1980, schedule 2, part 2 is subject to schedule 1 and 12
schedule 5, definition ordinary resolution.'. 13
278 Amendment of s 177 (Duties of bodies corporate) 14
Section 177(1)(e)-- 15
omit, insert-- 16
`(e) keep-- 17
(i) for at least 10 years after their creation or receipt 18
by or for the body corporate-- 19
(A) minutes of its meetings, including particulars 20
of motions passed at the meetings; and 21
(B) proper books of account for amounts 22
received or paid by the body corporate, 23
showing the items for which the amounts 24
were received or paid; and 25
(ii) for at least 2 years after their creation or receipt by 26
or for the body corporate--voting tally sheets or 27
other records showing votes for motions and 28
election ballots related to its meetings; and'. 29
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[s 279]
279 Amendment of s 185 (Constitution of executive 1
committee) 2
Section 185(7)-- 3
omit, insert-- 4
`(7) The election of the chairperson, secretary, treasurer and any 5
other members of the executive committee at a general 6
meeting of the body corporate must be conducted under 7
schedule 1. 8
`(7A) A person is eligible for election as chairperson, secretary or 9
treasurer, or as another member of the executive committee, 10
only if the person-- 11
(a) is an individual who is-- 12
(i) a member of the body corporate; or 13
(ii) a nominee of a corporation that is a member of the 14
body corporate; and 15
(b) does not owe a relevant body corporate debt in relation 16
to a lot or lots owned by the person.'. 17
280 Insertion of new s 185A 18
After section 185-- 19
insert-- 20
`185A Code of conduct for voting members of executive 21
committee 22
`(1) The code of conduct in schedule 2 applies to each person (a 23
voting member) who is-- 24
(a) a member of the executive committee of a body 25
corporate; and 26
(b) entitled to vote at general meetings of the body 27
corporate. 28
`(2) On becoming a voting member of the executive committee of 29
a body corporate, the person is taken to have agreed to comply 30
with the code of conduct.'. 31
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[s 281]
281 Amendment of s 186 (Vacation of office of member of 1
executive committee) 2
(1) Section 186(1)(i)-- 3
renumber as section 186(1)(j). 4
(2) Section 186(1)-- 5
insert-- 6
`(i) if the person is removed from office by ordinary resolution of 7
the body corporate under division 8; or'. 8
282 Insertion of new s 188A 9
After section 188-- 10
insert-- 11
`188A Conflict of interest of executive committee member 12
[SM, s 53] 13
`(1) A member of the executive committee must disclose to a 14
meeting of the committee the member's direct or indirect 15
interest in an issue being considered, or about to be 16
considered, by the committee if the interest could conflict 17
with the appropriate performance of the member's duties 18
about the consideration of the issue. 19
`(2) If a member required under subsection (1) to disclose an 20
interest in an issue is a voting member of the committee, the 21
member is not entitled to vote on a motion involving the issue. 22
`(3) A person who holds the proxy of a member of the committee 23
must disclose to a meeting of the committee the proxy 24
holder's direct or indirect interest in an issue being 25
considered, or about to be considered, by the committee if the 26
interest could conflict with the appropriate performance of the 27
proxy holder's duties about the consideration of the issue. 28
`(4) A proxy holder required under subsection (3) to disclose an 29
interest in an issue must not vote as the proxy on a motion 30
involving the issue. 31
`(5) A person who holds the proxy of a member of the committee 32
must disclose to a meeting of the committee the member's 33
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[s 283]
direct or indirect interest in an issue being considered, or 1
about to be considered, by the committee if the proxy holder 2
is aware that the member, if present, would be required under 3
subsection (1) to disclose the interest. 4
`(6) A proxy holder required under subsection (5) to disclose an 5
interest in an issue must not vote as the proxy on a motion 6
involving the issue.'. 7
283 Insertion of new pt 9, divs 6-8 and pt 9A 8
After section 201-- 9
insert-- 10
`Division 6 Proxies for general meetings of 11
bodies corporate 12
`Subdivision 1 Representing precinct bodies 13
corporate at meetings of community 14
bodies corporate 15
`201A Application of sdiv 1 16
`This subdivision applies to the appointment and use of a 17
proxy to represent a precinct body corporate at a general 18
meeting of the community body corporate of which the 19
precinct body corporate is a member. 20
`201B Appointment [SM, s 107] 21
`(1) Subject to subsections (2) to (4), the precinct body corporate 22
may appoint a proxy to act for it at the general meeting. 23
`(2) The community body corporate may by a comprehensive 24
resolution prohibit the use of proxies-- 25
(a) for particular things described in the resolution; or 26
(b) altogether. 27
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`(3) An appointment under subsection (1) has effect subject to the 1
operation of a comprehensive resolution under subsection (2). 2
`(4) The appointment of the proxy is effective only if the precinct 3
body corporate or the holder of the proxy gives, by hand, post 4
or facsimile, a properly completed proxy form to the secretary 5
of the community body corporate before-- 6
(a) the start of the meeting where the proxy is to be 7
exercised; or 8
(b) if the community body corporate has fixed an earlier 9
time by which proxies must be given (that can not, 10
however, be earlier than 24 hours before the time fixed 11
for the meeting)--the earlier time. 12
`201C Use of proxy [SM, s 109] 13
`(1) If a member of the community body corporate is the proxy for 14
the precinct body corporate, the member may vote both in the 15
member's own right and also as proxy of the precinct body 16
corporate. 17
`(2) A vote by proxy must not be exercised on behalf of the 18
precinct body corporate at the general meeting-- 19
(a) if the precinct body corporate's nominee is personally 20
present at the meeting, unless the nominee consents at 21
the meeting; or 22
(b) on a particular motion, if a written or electronic vote has 23
been exercised on the motion on behalf of the precinct 24
body corporate; or 25
(c) on a ballot for the election of a member of the executive 26
committee of the body corporate, or for otherwise 27
choosing a member of the executive committee; or 28
(d) for voting for a comprehensive resolution prohibiting, 29
wholly or partly, the use of proxies at executive 30
committee meetings or general meetings; or 31
(e) for voting for a majority resolution; or 32
(f) on a motion approving-- 33
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[s 283]
(i) the appointment, engagement or authorisation of a 1
person as the body corporate manager, a service 2
contractor or a letting agent; or 3
(ii) the amendment or termination of an appointment, 4
engagement or authorisation mentioned in 5
subparagraph (i); or 6
(g) on a motion decided by secret ballot. 7
`201D Special provisions about proxy use [SM, s 110] 8
`(1) The precinct body corporate can not be prevented by contract 9
from exercising a vote at the general meeting, and can not be 10
required by contract to make someone else the precinct body 11
corporate's proxy for voting at the general meeting. 12
`(2) A proxy can not be exercised for the precinct body corporate 13
by-- 14
(a) the original owner of a precinct development lot; or 15
(b) a body corporate manager for-- 16
(i) the community body corporate; or 17
(ii) the precinct body corporate; or 18
(iii) a subsidiary body corporate of the community 19
body corporate or precinct body corporate; or 20
(c) an associate of a person mentioned in paragraph (a) or 21
(b), unless the associate is one of the proprietors 22
constituting a subsidiary body corporate of the precinct 23
body corporate. 24
`201E Offence [SM, s 111] 25
`A person must not exercise a proxy, or otherwise purport to 26
vote on behalf of the precinct body corporate, at the general 27
meeting knowing that the person does not have the right to 28
exercise the proxy or otherwise vote on behalf of the precinct 29
body corporate. 30
Maximum penalty--100 penalty units. 31
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[s 283]
`Subdivision 2 Meetings of precinct bodies 1
corporate 2
`201F Application of sdiv 2 3
`This subdivision applies to the appointment and use of a 4
proxy to represent a member of a precinct body corporate at a 5
general meeting of the precinct body corporate. 6
`201G Appointment [SM, s 107] 7
`(1) Subject to subsections (2) to (5), a person entitled to vote at 8
the general meeting may appoint a proxy to act for the person 9
at the general meeting. 10
`(2) The precinct body corporate may by a comprehensive 11
resolution prohibit the use of proxies-- 12
(a) for particular things described in the resolution; or 13
(b) altogether. 14
`(3) An appointment under subsection (1) has effect subject to the 15
operation of a comprehensive resolution under subsection (2). 16
`(4) A person must not hold-- 17
(a) if there are 20 or more lots for which there are voting 18
entitlements for the meeting--proxies greater in number 19
than 5% of the lots; or 20
(b) if there are fewer than 20 lots for which there are voting 21
entitlements for the meeting--more than 1 proxy. 22
`(5) The appointment of the proxy is effective only if the person or 23
the holder of the proxy gives, by hand, post or facsimile, a 24
properly completed proxy form to the secretary of the precinct 25
body corporate before-- 26
(a) the start of the meeting where the proxy is to be 27
exercised; or 28
(b) if the precinct body corporate has fixed an earlier time 29
by which proxies must be given (that can not, however, 30
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Part 12 Amendments of Acts and a regulation
[s 283]
be earlier than 24 hours before the time fixed for the 1
meeting)--the earlier time. 2
`201H Use of proxy [SM, s 109] 3
`(1) A member of the precinct body corporate (member A) who is 4
the proxy for another member of the body corporate (member 5
B) may vote both in member A's own right and also as proxy 6
of member B. 7
`(2) If at least 1 co-owner of a lot is present at the general meeting, 8
a proxy given by another co-owner of the lot is of no effect. 9
`(3) A vote by proxy must not be exercised at the general 10
meeting-- 11
(a) if the member who gave the proxy is personally present 12
at the meeting, unless the member consents at the 13
meeting; or 14
(b) on a particular motion, if the person who gave the proxy 15
has exercised a written or electronic vote on the motion; 16
or 17
(c) on a ballot for the election of a member of the executive 18
committee of the body corporate, or for otherwise 19
choosing a member of the executive committee; or 20
(d) for voting for a comprehensive resolution prohibiting, 21
wholly or partly, the use of proxies at executive 22
committee meetings or general meetings; or 23
(e) for voting for a majority resolution; or 24
(f) on a motion approving-- 25
(i) the appointment, engagement or authorisation of a 26
person as the body corporate manager, a service 27
contractor or a letting agent; or 28
(ii) the amendment or termination of an appointment, 29
engagement or authorisation mentioned in 30
subparagraph (i); or 31
(g) on a motion decided by secret ballot. 32
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[s 283]
`201I Special provisions about proxy use [SM, s 110] 1
`(1) A member of the precinct body corporate can not be 2
prevented by contract from exercising a vote at the general 3
meeting, and can not be required by contract to make 4
someone else the member's proxy for voting at the general 5
meeting. 6
`(2) A proxy can not be exercised for someone else by-- 7
(a) the original owner of a precinct development lot; or 8
(b) a body corporate manager for-- 9
(i) the community body corporate of which the 10
precinct body corporate is a member; or 11
(ii) the precinct body corporate; or 12
(iii) a subsidiary body corporate of the community 13
body corporate or precinct body corporate; or 14
(c) an associate of a person mentioned in paragraph (a) or 15
(b), unless the associate is one of the proprietors 16
constituting a body corporate that is itself a member of 17
the precinct body corporate. 18
`201J Offence [SM, s 111] 19
`A person must not exercise a proxy, or otherwise purport to 20
vote on behalf of another person, at the general meeting 21
knowing that the person does not have the right to exercise the 22
proxy or otherwise vote on behalf of the other person. 23
Maximum penalty--100 penalty units. 24
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[s 283]
`Subdivision 3 Matters applying to proxies for 1
meetings of community and 2
precinct bodies corporate 3
`201K Form of proxy [SM, s 108] 4
`A proxy given under this division to represent a person at a 5
general meeting of a body corporate-- 6
(a) must be in the approved form; and 7
(b) must be in the English language; and 8
(c) can not be irrevocable; and 9
(d) can not be transferred by the holder of the proxy to a 10
third person; and 11
(e) lapses at the end of the body corporate's financial year 12
or at the end of a shorter period stated in the proxy; and 13
(f) may be given by any person who has the right to vote at 14
the general meeting; and 15
(g) subject to the limitations contained in this division, may 16
be given to any individual; and 17
(h) must appoint a named individual. 18
`201L How proxy may be exercised [SM, s 109] 19
`A proxy may be exercised at a general meeting of a body 20
corporate by-- 21
(a) the proxy holder voting in a show of hands at the 22
meeting; or 23
(b) the proxy holder completing a written or electronic vote 24
on a motion before the start of, or at, the meeting. 25
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[s 283]
`Division 7 Accounts and audit for precinct 1
bodies corporate 2
`201M Application of div 7 3
`This division applies to a precinct body corporate for 4
preparing a statement of accounts under section 177(1)(f). 5
`201N Accounts [SM, s 154] 6
`(1) The statement of accounts may be prepared on a cash or 7
accrual basis. 8
`(2) If the accounts are prepared on a cash basis, they must include 9
disclosure of the following-- 10
(a) the total amounts paid to the fund established under 11
section 177(1)(i) and the account established under 12
section 177(1)(k); 13
(b) total contributions under section 177(1)(h) and (l) and 14
193 in arrears; 15
(c) balances for all financial institution accounts and 16
investments; 17
(d) all outstanding receipts and payments. 18
`(3) If the accounts are prepared on an accrual basis, they must 19
show the assets and liabilities of the precinct body corporate 20
at the end of the financial year for which the accounts are 21
prepared. 22
`(4) The statement of accounts must include-- 23
(a) the corresponding figures for the previous financial 24
year; and 25
(b) disclosure of all remuneration, allowances or expenses 26
paid to members of the executive committee, identifying 27
the total amounts paid to each member during the 28
financial year under the following categories-- 29
(i) remuneration or allowances; 30
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[s 283]
(ii) expenses, split up into travelling, accommodation, 1
meal and other expenses. 2
`(5) A copy of the statement of accounts must accompany the 3
notice of the annual general meeting first happening after the 4
end of the financial year for which the accounts are prepared. 5
`201O Audit [SM, s 155] 6
`(1) The precinct body corporate must have its statement of 7
accounts for each financial year of the body corporate audited 8
by an auditor. 9
`(2) The auditor to be appointed must be agreed to by ordinary 10
resolution of the precinct body corporate. 11
`(3) The motion for agreeing to the auditor to be appointed-- 12
(a) must be included in the agenda for the general meeting 13
where the motion is to be considered; and 14
(b) must include the name of the auditor proposed to be 15
appointed. 16
`(4) Also, the precinct body corporate may, by ordinary 17
resolution-- 18
(a) resolve to have its accounting records audited for a 19
particular period or a particular project; and 20
(b) appoint an auditor for the audit. 21
`(5) A member of the executive committee, the body corporate 22
manager, or an associate of a member of the executive 23
committee or body corporate manager, can not be appointed 24
to audit the accounting records or the statement of accounts of 25
the precinct body corporate. 26
`(6) On finishing an audit of the precinct body corporate's 27
statement of accounts for a financial year, the auditor must 28
give a certificate-- 29
(a) stating whether the statement of accounts gives a true 30
and fair view of the precinct body corporate's financial 31
affairs; and 32
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[s 283]
(b) if the statement of accounts does not give a true and fair 1
view of the precinct body corporate's financial 2
affairs--identifying the deficiencies in the statement. 3
`(7) A copy of the auditor's certificate must accompany the notice 4
of the next annual general meeting held after the certificate is 5
given. 6
`(8) In this section-- 7
auditor means-- 8
(a) a person who is a registered company auditor; or 9
(b) a person who-- 10
(i) is a member of-- 11
(A) CPA Australia and entitled to use the letters 12
`CPA' or `FCPA'; or 13
(B) the Institute of Chartered Accountants in 14
Australia and entitled to use the letters `CA' 15
or `FCA'; or 16
(C) the National Institute of Accountants and 17
entitled to use the letters `MNIA', `FNIA', 18
`PNA' or `FPNA'; and 19
(ii) has a total of 2 years auditing experience, whether 20
or not continuous. 21
registered company auditor means a person registered as an 22
auditor, or taken to be registered as an auditor, under the 23
Corporations Act, part 9.2. 24
`Division 8 Removal from office of voting 25
members of executive committee 26
for breach of code of conduct 27
`201P Notice for breach of code of conduct [SM, s 34] 28
`(1) If a body corporate believes a voting member of its executive 29
committee has breached the code of conduct for the member, 30
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[s 283]
the body corporate may decide, by ordinary resolution, to give 1
the member a written notice stating each of the following-- 2
(a) that the body corporate believes the member has 3
breached a stated provision of the code of conduct; 4
(b) details sufficient to identify the breach in not more than 5
600 words; 6
(c) that the member may give any other member of the body 7
corporate, within the stated period of at least 21 days 8
after the member is given the notice, a written response 9
to the notice in not more than 600 words; 10
(d) that, if asked by the member, the body corporate will 11
pay the member all postage charges and copying 12
expenses reasonably incurred by the member in giving a 13
written response under paragraph (c) to any other 14
member of the body corporate; 15
(e) that the body corporate is to consider a motion to 16
remove the member from office for the breach at its next 17
general meeting called after the period mentioned in 18
paragraph (c) ends. 19
`(2) If asked by the member, the body corporate must pay the 20
member all postage charges and copying expenses reasonably 21
incurred by the member in giving a written response under 22
subsection (1)(c) to any other member of the body corporate. 23
`201Q Removal of voting member at general meeting 24
[SM, s 35] 25
`(1) This section applies if-- 26
(a) a body corporate gives a voting member of its executive 27
committee a notice under section 201P(1); and 28
(b) the period mentioned in section 201P(1)(c) for the 29
notice has ended. 30
`(2) The body corporate must-- 31
(a) include on the agenda of its next general meeting, called 32
after the period mentioned in section 201P(1)(c) ends, a 33
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[s 283]
motion to remove the member from office for breaching 1
the code of conduct; and 2
(b) attach to the agenda a copy of-- 3
(i) the notice; and 4
(ii) if the member has given another member of the 5
body corporate a response under section 6
201P(1)(c)--the response. 7
`(3) The member may be removed from office, by ordinary 8
resolution of the body corporate, at the next general meeting. 9
`Part 9A Conduct of body corporate 10
managers, service contractors 11
and letting agents 12
`Division 1 Preliminary 13
`201R Definitions for pt 9A 14
`In this part-- 15
caretaking service contractor, for a site or precinct or part of 16
a site or precinct, means a service contractor for the site or 17
precinct or part who is also-- 18
(a) a letting agent for the site or precinct or part; or 19
(b) an associate of the letting agent. 20
code contravention notice see section 201Z(1). 21
financier see section 201S. 22
letting agent see section 201T(1). 23
letting agent authorisation, for a letting agent, means-- 24
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[s 283]
(a) an authorisation given by a community body corporate 1
to the letting agent to conduct a letting agent business 2
for a site; or 3
(b) an authorisation given by a precinct body corporate to 4
the letting agent to conduct a letting agent business for a 5
precinct. 6
letting agent business see section 201T(2). 7
management rights, of a letting agent for a site or precinct, 8
means-- 9
(a) the letting agent business for the site or precinct, 10
including the letting agent's authorisation; and 11
(b) the business conducted by the letting agent under a 12
service contract for the site or precinct, including the 13
service contract; and 14
(c) the letting agent's interest in a lot used for conducting a 15
business mentioned in paragraph (a) or (b); and 16
(d) any right of the letting agent to use and occupy a part of 17
the common property for a business mentioned in 18
paragraph (a) or (b). 19
precinct includes a part of a precinct. 20
reviewable terms, for a service contract, means the terms of 21
the contract that provide for-- 22
(a) the functions and powers of the relevant letting agent as 23
a service contractor; or 24
(b) the remuneration payable to the relevant letting agent as 25
a service contractor. 26
review advice, about a service contract, means written advice 27
about whether the contract's reviewable terms-- 28
(a) are currently fair and reasonable; and 29
(b) if the reviewable terms are not currently fair and 30
reasonable--how the reviewable terms should be 31
changed to ensure they are fair and reasonable. 32
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[s 283]
service contract means a contract entered into with a person 1
for the engagement of the person as a service contractor for a 2
site or precinct. 3
service contractor see section 201U. 4
site includes a part of the site. 5
transfer notice see section 201ZB(b)(ii). 6
`201S Meaning of financier for a letting agent's contract 7
`(1) A person is a financier for a contract under which a letting 8
agent is authorised by a body corporate if the letting agent and 9
the person give written notice signed by each of them to the 10
body corporate that the person is a financier for the contract. 11
`(2) A person stops being a financier for the contract if the person 12
gives the body corporate a written notice withdrawing the 13
notice given under subsection (1). 14
`(3) A notice under subsection (2) may be given without the letting 15
agent's agreement. 16
`(4) However, a person is a financier for the contract only if-- 17
(a) the person is a financial institution; or 18
(b) the person, in the ordinary course of the person's 19
business, supplies, or might reasonably be expected to 20
supply, finance for business acquisitions, using charges 21
over contracts as the whole or part of the person's 22
security for supplying the finance; or 23
(c) at the time the person supplied finance for a business 24
acquisition using a charge over the contract as the whole 25
or part of the person's security, the person was a person 26
to whom paragraph (b) would have applied. 27
`201T Meaning of letting agent and letting agent business 28
`(1) A person is a letting agent if-- 29
(a) a community body corporate authorises the person to 30
conduct a letting agent business for a site; or 31
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(b) a precinct body corporate authorises the person to 1
conduct a letting agent business for a precinct. 2
`(2) A person conducts a letting agent business for a site or 3
precinct if-- 4
(a) the person conducts, subject to the Property Agents and 5
Motor Dealers Act 2000, the business of acting as the 6
agent of the owners of 1 or more lots included in the site 7
or precinct; and 8
(b) the owners choose to use the person's services for 9
securing, negotiating or enforcing (including collecting 10
rents or tariffs for) leases or other occupancies of lots 11
included in the site or precinct. 12
`(3) It is not relevant to the identification of a person as a letting 13
agent under this section that the person also conducts an 14
ancillary business or other activity. 15
Examples of ancillary businesses or activities-- 16
video hire, linen hire, agency for tour operator 17
`201U Meaning of service contractor for site or precinct 18
`A person is a service contractor for a site or precinct if-- 19
(a) the person is engaged by the community body corporate 20
for the site or precinct body corporate for the precinct to 21
supply services to the body corporate for the benefit of 22
the common property or lots included in the site or 23
precinct; and 24
(b) the person is not an employee of the community body 25
corporate or precinct body corporate; and 26
(c) the services do not include administrative services; and 27
(d) the term of the engagement is at least 1 year. 28
Examples of services that might be provided by a service contractor-- 29
caretaking services, pool cleaning services 30
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`Division 2 Codes of conduct 1
`201V Code of conduct for body corporate manager and 2
caretaking service contractor 3
`(1) The code of conduct in schedule 3 applies to-- 4
(a) a body corporate manager appointed by a community 5
body corporate or precinct body corporate in performing 6
obligations under the person's appointment; and 7
(b) a caretaking service contractor engaged by a community 8
body corporate or precinct body corporate in performing 9
obligations for a site or precinct under the person's 10
engagement. 11
`(2) Compliance with the provisions of the code is taken to be a 12
condition of the instrument of appointment or the contract 13
providing for the person's engagement. 14
`(3) If there is an inconsistency between a provision of the code 15
and a provision in the instrument of appointment or contract, 16
the provision of the code prevails. 17
`(4) In this section-- 18
instrument of appointment, in relation to a person's 19
appointment as a body corporate manager, includes a contract 20
or other document relating to the appointment. 21
`201W Code of conduct for letting agent 22
`The code of conduct in schedule 4 applies to-- 23
(a) a letting agent authorised by a community body 24
corporate to conduct a letting agent business for a site; 25
and 26
(b) a letting agent authorised by a precinct body corporate 27
to conduct a letting agent business for a precinct. 28
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[s 283]
`Division 3 Required transfer of management 1
rights for contravention of code of 2
conduct 3
`Subdivision 1 Preliminary 4
`201X Application of div 3 5
`(1) This division applies for transferring the management rights 6
of a letting agent-- 7
(a) authorised by a community body corporate to conduct a 8
letting agent business for a site; or 9
(b) authorised by a precinct body corporate to conduct a 10
letting agent business for a precinct. 11
`(2) However, this division does not apply to a letting agent for 12
conducting a letting agent business or a part of a letting agent 13
business for a site or precinct for which a serviced strata 14
arrangement or scheme under the Corporations Act is in 15
operation. 16
`201Y Effect of div 3 on other provisions 17
`The provisions of a letting agent authorisation or service 18
contract providing for its transfer or termination are void to 19
the extent the provisions are inconsistent with this division. 20
`Subdivision 2 Transfer of management rights 21
`201Z Code contravention notice 22
`(1) The body corporate must, if required by an ordinary 23
resolution decided by secret ballot, give the letting agent a 24
signed notice under this section (a code contravention 25
notice). 26
`(2) The code contravention notice must state-- 27
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[s 283]
(a) that the body corporate believes the letting agent has 1
contravened, or is contravening, a provision of-- 2
(i) the code of conduct for letting agents; or 3
(ii) the code of conduct for body corporate managers 4
and caretaking service contractors; and 5
(b) the provision the body corporate believes has been, or is 6
being, contravened; and 7
(c) details sufficient to identify the contravention; and 8
(d) a reasonable period within which the letting agent must 9
remedy the contravention; and 10
(e) that the body corporate may, without further notice, give 11
the letting agent a transfer notice if-- 12
(i) the letting agent does not comply with the code 13
contravention notice; or 14
(ii) the body corporate reasonably believes the letting 15
agent, after being given the code contravention 16
notice, has contravened a provision of a code 17
mentioned in paragraph (a). 18
`201ZA Grounds for requiring transfer 19
`The body corporate may require the transfer of the letting 20
agent's management rights under this division only if the 21
requirement is based on either of the following grounds-- 22
(a) the letting agent failed to comply with a code 23
contravention notice; 24
(b) the body corporate reasonably believes the letting agent, 25
after being given the notice, contravened a provision 26
of-- 27
(i) the code of conduct for letting agents; or 28
(ii) the code of conduct for body corporate managers 29
and caretaking service contractors. 30
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[s 283]
`201ZB Requirement for transfer 1
`The letting agent must transfer the letting agent's 2
management rights for the site or precinct if-- 3
(a) a ground under section 201ZA exists for the body 4
corporate to require the transfer; and 5
(b) the body corporate-- 6
(i) by majority resolution, decided by secret ballot, 7
requires the transfer; and 8
(ii) gives written notice of the requirement (the 9
transfer notice) to the letting agent. 10
`201ZC Transfer--letting agent's choice of transferee 11
`(1) The letting agent must transfer the management rights-- 12
(a) within the following period after the transfer notice is 13
given to the letting agent-- 14
(i) if section 201ZH does not apply--9 months; 15
(ii) if section 201ZH applies--11 months; and 16
(b) to a person, other than an associate of the letting agent, 17
chosen by the letting agent and approved by the body 18
corporate. 19
`(2) For deciding whether to approve a person under subsection 20
(1)(b), the body corporate-- 21
(a) must act reasonably and as quickly as practicable; and 22
(b) may have regard only to the person's-- 23
(i) character; and 24
(ii) financial standing; and 25
(iii) competence, qualifications and experience. 26
`(3) However, the body corporate must not-- 27
(a) unreasonably withhold approval of the person; or 28
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Part 12 Amendments of Acts and a regulation
[s 283]
(b) require or receive a fee or other consideration for 1
approving the person, other than reimbursement for 2
legal expenses reasonably incurred by the body 3
corporate in relation to a request for the approval. 4
Maximum penalty--50 penalty units. 5
`(4) If the letting agent transfers the management rights to a person 6
who is not approved by the body corporate, the transfer is of 7
no effect. 8
`201ZD Giving financier copy of transfer notice 9
`When the body corporate gives the transfer notice to the 10
letting agent, the body corporate must give a copy of it to each 11
person who is a financier for the contract under which the 12
letting agent is authorised as the letting agent. 13
`201ZE Transfer--body corporate's choice of transferee 14
`(1) If the letting agent does not transfer the management rights as 15
required under section 201ZC, the letting agent must transfer 16
the management rights-- 17
(a) to a replacement letting agent chosen by the executive 18
committee of the body corporate and named in a written 19
notice given by the committee to the letting agent; and 20
(b) at the price stated in the notice; and 21
(c) within the period, of at least 2 months after the notice is 22
given, stated in the notice. 23
`(2) The price stated must be 1 of the following-- 24
(a) the average of 2 valuations, obtained by the body 25
corporate from 2 independent registered valuers, stating 26
the value of the management rights; 27
(b) the highest bid for the management rights, excluding a 28
bid by the letting agent or an associate of the letting 29
agent, made at an auction-- 30
(i) conducted at the request of the body corporate; and 31
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Part 12 Amendments of Acts and a regulation
[s 283]
(ii) of which at least 60 days notice was given; 1
(c) the highest amount tendered, excluding a tender by the 2
letting agent or an associate of the letting agent, for the 3
management rights after reasonable efforts have been 4
made by the body corporate to market the management 5
rights for at least 60 days. 6
`(3) The letting agent must pay the body corporate, from the 7
proceeds of the sale, the reasonable costs incurred by the body 8
corporate under subsection (2). 9
Note-- 10
If the letting agent does not transfer the management rights as required 11
under this section, it is a ground for giving the letting agent a remedial 12
action notice under section 201ZM. 13
`201ZF Terms of service contract on transfer 14
`(1) This section applies to a service contract (the transferred 15
service contract) transferred to a person (the transferee) 16
under section 201ZC or 201ZE. 17
`(2) Unless the body corporate and transferee agree otherwise, the 18
terms of the transferred service contract are-- 19
(a) the terms applying to the service contract under 20
subsection (3); or 21
(b) if subsection (3) does not apply--the terms applying to 22
the service contract immediately before the transfer (the 23
existing terms). 24
`(3) The terms of the transferred service contract are the existing 25
terms as changed under a review advice about the contract 26
if-- 27
(a) the review advice states how the contract's reviewable 28
terms should be changed to ensure they are fair and 29
reasonable; and 30
(b) the body corporate gave the letting agent a copy of the 31
review advice as required under section 201ZJ(1). 32
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[s 283]
`Subdivision 3 Replacement of letting agent 1
authorisation and service contract 2
`201ZG Replacement of letting agent authorisation and 3
service contract in particular circumstances 4
`(1) This section applies if the remainder of the term of the letting 5
agent's authorisation (the transferred authorisation), 6
including any rights or options of extension or renewal, is less 7
than 7 years when transferred to a person (the transferee) 8
under this division. 9
Example-- 10
A letting agent's authorisation is given for a term of 5 years with 4 rights 11
of renewal of 5 years each and 5 years have expired. The remainder of 12
the term is therefore 20 years and this section does not apply. 13
`(2) On the transfer-- 14
(a) the transferred authorisation and any service contract 15
(the transferred service contract) forming part of the 16
transferred management rights terminate; and 17
(b) the body corporate must-- 18
(i) authorise the transferee to conduct a letting agent 19
business for the site or precinct to which the 20
transferred authorisation related; and 21
(ii) if a service contract formed part of the transferred 22
management rights--engage the transferee as a 23
service contractor. 24
`(3) The authorisation and engagement must be given for a term of 25
9 years starting immediately after the transfer. 26
`(4) Subject to subsection (3)-- 27
(a) the authorisation must be given on the terms applying to 28
the transferred authorisation immediately before the 29
transfer; and 30
(b) unless the body corporate and transferee agree 31
otherwise, the engagement must be given on-- 32
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[s 283]
(i) the terms applying to the transferred service 1
contract under subsection (5); or 2
(ii) if subsection (5) does not apply--the terms 3
applying to the transferred service contract 4
immediately before the transfer (the existing 5
terms). 6
`(5) The engagement must be given on the existing terms of the 7
transferred service contract as changed under a review advice 8
about the contract if-- 9
(a) the review advice states how the contract's reviewable 10
terms should be changed to ensure they are fair and 11
reasonable; and 12
(b) the body corporate gave the letting agent a copy of the 13
review advice as required under section 201ZJ(1). 14
`Subdivision 4 Reviewing terms of letting agent's 15
service contract 16
`201ZH Reviewing terms of service contract 17
`(1) This section applies if-- 18
(a) the letting agent's management rights include a service 19
contract; and 20
(b) when the body corporate passes the majority resolution 21
mentioned in section 201ZB, the body corporate also 22
passes, by ordinary resolution, a motion (a review 23
motion) that a review advice about the service contract 24
be obtained. 25
`(2) Within 1 month after the review motion is passed, the body 26
corporate must obtain the review advice from an independent 27
appropriate person. 28
Example of an independent appropriate person-- 29
a person who, in the ordinary course of the person's business, has 30
knowledge of the functions and powers of service contractors and the 31
remuneration for performing the functions and powers 32
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[s 283]
`(3) The review advice must be based on the review criteria stated 1
in section 201ZI. 2
`(4) This section applies to the contract even if the contract also 3
provides for either or both of the following-- 4
(a) the letting agent's engagement as a body corporate 5
manager; 6
(b) the letting agent's authorisation as a letting agent. 7
`201ZI Review criteria 8
`(1) The review criteria are each of the following-- 9
(a) the appropriateness of the reviewable terms for the 10
service contract for achieving a fair and reasonable 11
balance between the interests of the body corporate and 12
service contractor; 13
(b) whether the reviewable terms impose conditions that-- 14
(i) are unreasonably difficult to comply with; or 15
(ii) are not necessary and reasonable for the protection 16
of the legitimate interests of the body corporate or 17
service contractor; 18
(c) the consequences of complying with, or contravening, 19
the reviewable terms and whether the consequences are 20
unfairly harsh or beneficial to the body corporate or 21
service contractor; 22
(d) whether the reviewable terms are appropriate for the site 23
or precinct; 24
(e) the term of the engagement as service contractor and the 25
period of the term remaining. 26
`(2) The review criterion mentioned in subsection (1)(d) is to be 27
applied having regard, in particular, to the nature, features and 28
characteristics of the site or precinct. 29
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[s 283]
`201ZJ Giving copy of review advice to letting agent and 1
prospective buyer of management rights 2
`(1) Within 14 days after obtaining the review advice, the body 3
corporate must give a copy of it to the letting agent. 4
`(2) If requested by a prospective buyer of the letting agent's 5
management rights, the body corporate must give a copy of 6
the review advice to the prospective buyer. 7
`Subdivision 5 Disputes about transfer of 8
management rights 9
`201ZK QCAT jurisdiction 10
`A party to a dispute about the transfer, under this division, of 11
a letting agent's management rights may apply, as provided 12
under the QCAT Act, for an order of QCAT exercising 13
QCAT's original jurisdiction to resolve the dispute. 14
`Division 4 Disputes about contractual matters 15
`201ZL QCAT jurisdiction 16
`(1) This section applies to a dispute about a claimed or 17
anticipated contractual matter about-- 18
(a) the appointment or engagement of a person as a body 19
corporate manager or caretaking service contractor for a 20
site or precinct; or 21
(b) the authorisation of a person as a letting agent for a site 22
or precinct. 23
`(2) A party to the dispute may apply, as provided under the QCAT 24
Act, for an order of QCAT exercising QCAT's original 25
jurisdiction to resolve the dispute. 26
`(3) In this section-- 27
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[s 283]
contractual matter, about the appointment, engagement or 1
authorisation of a body corporate manager, service contractor 2
or letting agent, means-- 3
(a) a contravention of the terms of the appointment, 4
engagement or authorisation; or 5
(b) the termination of the appointment, engagement or 6
authorisation; or 7
(c) the exercise of rights or powers under the terms of the 8
appointment, engagement or authorisation; or 9
(d) the performance of duties under the terms of the 10
appointment, engagement or authorisation. 11
`Division 5 Termination of appointment, 12
engagement or authorisation 13
`201ZM Termination for failure to comply with remedial 14
action notice [SM, s 131] 15
`(1) A community body corporate or precinct body corporate may 16
terminate a person's appointment as a body corporate 17
manager or engagement as a service contractor if the person 18
or, if the person is a corporation, a director of the 19
corporation-- 20
(a) engages in misconduct, or is grossly negligent, in 21
carrying out functions required under the appointment 22
or engagement; or 23
(b) fails to carry out duties under the appointment or 24
engagement; or 25
(c) contravenes-- 26
(i) for a body corporate manager--the code of 27
conduct for body corporate managers and 28
caretaking service contractors; or 29
(ii) for a service contractor who is a caretaking service 30
contractor--the code of conduct for body 31
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Part 12 Amendments of Acts and a regulation
[s 283]
corporate managers and caretaking service 1
contractors or the code of conduct for letting 2
agents. 3
`(2) Also, the body corporate may terminate a person's 4
authorisation as a letting agent if-- 5
(a) the person or, if the person is a corporation, a director of 6
the corporation-- 7
(i) engages in misconduct, or is grossly negligent, in 8
carrying out obligations, if any, under the 9
authorisation; or 10
(ii) fails to carry out duties under the authorisation; or 11
(iii) contravenes the code of conduct for letting agents 12
or, for a caretaking service contractor, the code of 13
conduct for body corporate managers and 14
caretaking service contractors; or 15
(b) the person-- 16
(i) has been given a transfer notice requiring transfer 17
of the person's management rights; and 18
(ii) has not transferred the management rights as 19
required under section 201ZE. 20
`(3) The body corporate may act under subsection (1) or (2) only 21
if-- 22
(a) the body corporate has given the manager, contractor or 23
agent a remedial action notice; and 24
(b) the manager, contractor or agent fails to comply with the 25
remedial action notice within the period stated in the 26
notice; and 27
(c) the termination is approved by ordinary resolution of the 28
body corporate; and 29
(d) for the termination of a person's engagement as a 30
caretaking service contractor or authorisation as a 31
letting agent--the motion to approve the termination is 32
decided by secret ballot. 33
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[s 283]
`(4) In this section-- 1
remedial action notice means a written notice stating each of 2
the following-- 3
(a) that the body corporate believes the person to whom the 4
notice is given has acted-- 5
(i) for a body corporate manager or service 6
contractor--in a way mentioned in subsection (1); 7
or 8
(ii) for a letting agent--in a way mentioned in 9
subsection (2); 10
(b) details of the action sufficient to identify-- 11
(i) the misconduct or gross negligence the body 12
corporate believes has happened; or 13
(ii) the duties the body corporate believes have not 14
been carried out; or 15
(iii) the provision of the code of conduct the body 16
corporate believes has been contravened; or 17
(iv) if subsection (2)(b) applies, the contravention of 18
the code contravention notice or the relevant 19
provision of the code of conduct that was the 20
ground for requiring the transfer of the person's 21
management rights under section 201ZA; 22
(c) that the person must, within a reasonable period of at 23
least 14 days stated in the notice-- 24
(i) remedy the misconduct or gross negligence; or 25
(ii) carry out the duties; or 26
(iii) remedy the contravention; 27
(d) that if the person does not comply with the notice in the stated 28
period, the body corporate may terminate the person's 29
appointment, engagement or authorisation as a body corporate 30
manager, service contractor or letting agent.'. 31
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[s 284]
284 Amendment of s 202 (Community development control 1
by-laws) 2
(1) Section 202(1), `development control'-- 3
omit, insert-- 4
`community development control'. 5
(2) Section 202(2) and (3), `development control'-- 6
omit, insert-- 7
`community development control'. 8
(3) Section 202-- 9
insert-- 10
`(4) However, a mechanism provided for in a community 11
development control by-law under subsection (3)(b) cannot 12
limit section 214B.'. 13
285 Amendment of s 204 (Application of community 14
development control by-laws and community activities 15
by-laws) 16
(1) Section 204(1), `Development'-- 17
omit, insert-- 18
`Community development'. 19
(2) Section 204(2) and (3), `development'-- 20
omit, insert-- 21
`community development'. 22
286 Amendment of s 205 (Minor noncompliance with 23
community development by-laws or community activities 24
by-laws) 25
Section 205, `a development'-- 26
omit, insert-- 27
`a community development'. 28
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[s 287]
287 Amendment of s 208 (Precinct development control 1
by-laws) 2
(1) Section 208(1), `development control'-- 3
omit, insert-- 4
`precinct development control'. 5
(2) Section 208(2) and (3), `development control'-- 6
omit, insert-- 7
`precinct development control'. 8
(3) Section 208-- 9
insert-- 10
`(4) However, a mechanism provided for in a precinct 11
development control by-law under subsection (3)(b) cannot 12
limit section 214C.'. 13
288 Amendment of s 210 (Application of precinct 14
development control and precinct activities by-laws) 15
(1) Section 210 heading, after `control'-- 16
insert-- 17
`by-laws'. 18
(2) Section 210(1), `Development'-- 19
omit, insert-- 20
`Precinct development'. 21
(3) Section 210(2) and (3), `development'-- 22
omit, insert-- 23
`precinct development'. 24
289 Amendment of s 211 (Minor noncompliance with precinct 25
development by-laws or precinct activities by-laws) 26
Section 211, `a development'-- 27
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Local Government Electoral Bill 2011
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[s 290]
omit, insert-- 1
`a precinct development'. 2
290 Insertion of new pt 11, div 1 hdg 3
Part 11, after part heading-- 4
insert-- 5
`Division 1 Fire safety'. 6
291 Replacement of s 214A (Dealing with disputes) 7
Section 214A-- 8
omit, insert-- 9
`Division 2 Resolution of particular disputes 10
`214A Dealing with particular disputes under Building 11
Units and Group Titles Act 1980 12
`(1) Subject to subsection (2), a dispute about the operation of this 13
Act or the rights and obligations of persons under this Act 14
may be dealt with under the Building Units and Group Titles 15
Act 1980, part 5. 16
`(2) However, this section-- 17
(a) does not apply to a dispute or matter mentioned in 18
section 201ZK, 201ZL, 214B or 214C; and 19
(b) is subject to section 214D. 20
`214B Dealing with matter relating to community 21
development control by-law 22
`(1) QCAT may deal with a matter relating to-- 23
(a) the application of a community development control 24
by-law for a site to a person mentioned in subsection 25
(2)(b), (c) or (d); or 26
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[s 291]
(b) a contravention or alleged contravention of a community 1
development control by-law for a site. 2
`(2) Each of the following persons may apply to QCAT to deal 3
with a matter under subsection (1) if the person has standing 4
to make the application-- 5
(a) the community body corporate that made the by-law; 6
(b) a subsidiary body corporate of the community body 7
corporate; 8
(c) a subsidiary body corporate of a precinct body corporate 9
that is a member of the community body corporate; 10
(d) a proprietor or occupier of, or a person having an estate 11
or interest in, a lot in the site. 12
`(3) For subsection (2), a person has standing to make the 13
application if the person is directly and materially affected by 14
the matter to which the application relates. 15
Example-- 16
A proprietor of a lot in a precinct in a site alleges the amenity of the lot 17
has been, or will be, adversely affected by development authorised 18
under a community development control by-law in an adjoining precinct 19
in the site. 20
`(4) This section is subject to section 214D. 21
`214C Dealing with matter relating to precinct development 22
control by-law 23
`(1) QCAT may deal with a matter relating to-- 24
(a) the application of a precinct development control by-law 25
for a precinct to a person mentioned in subsection (2)(b) 26
or (c); or 27
(b) a contravention or alleged contravention of a precinct 28
development control by-law for a precinct. 29
`(2) Each of the following persons may apply to QCAT to deal 30
with a matter under subsection (1) if the person has standing 31
to make the application-- 32
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[s 291]
(a) the precinct body corporate that made the by-law; 1
(b) a subsidiary body corporate of the precinct body 2
corporate; 3
(c) a proprietor or occupier of, or a person having an estate 4
or interest in-- 5
(i) a lot in the precinct or in another precinct in the 6
site; or 7
(ii) a lot on a group titles plan or building units plan 8
subdividing a community development lot on the 9
site; or 10
(iii) a community stratum lot on the site; or 11
(iv) a lot on a building units plan subdividing a 12
community stratum lot on the site. 13
`(3) For subsection (2), a person has standing to make the 14
application if the person is directly and materially affected by 15
the matter to which the application relates. 16
`(4) This section is subject to section 214D. 17
`214D Internal dispute resolution processes to be used 18
before application 19
`(1) Subsection (2) applies to a referee for deciding an application 20
for an order under the Building Units and Group Titles Act 21
1980, part 5 relating to a dispute about a matter mentioned in 22
section 214A(1). 23
`(2) The referee must not decide the application unless the referee 24
is satisfied the applicant has made reasonable attempts to 25
resolve the dispute by using internal dispute resolution 26
processes. 27
`(3) Subsection (4) applies to QCAT for deciding an application 28
about a matter relating to-- 29
(a) a community development control by-law under section 30
214B(1); or 31
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Part 12 Amendments of Acts and a regulation
[s 291]
(b) a precinct development control by-law under section 1
214C(1). 2
`(4) QCAT must not decide the application unless QCAT is 3
satisfied the applicant has made reasonable attempts to 4
resolve the matter by using-- 5
(a) if the application relates to a dispute (a design and 6
development dispute) mentioned in section 202(3)(b) or 7
208(3)(b) and the community or precinct development 8
control by-law provides a mechanism for deciding the 9
dispute--the mechanism provided under the by-law; or 10
(b) otherwise--internal dispute resolution processes. 11
`(5) In this section-- 12
internal dispute resolution processes includes the 13
following-- 14
(a) the parties to the dispute communicating with each other 15
about the dispute; 16
(b) the applicant writing about the dispute to the executive 17
committee for the community body corporate or 18
precinct body corporate, as relevant; 19
(c) the applicant causing a motion relevant to deciding the 20
dispute to be presented for consideration at a general 21
meeting of the community body corporate or precinct 22
body corporate, as relevant. 23
`Division 3 Other matters 24
`214E Associates 25
`(1) For this Act, a person is associated with someone else if-- 26
(a) a relationship of a type to which this section applies 27
exists between them; or 28
(b) a series of relationships of a type to which this section 29
applies can be traced between them through another 30
person or other persons. 31
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[s 292]
`(2) This section applies to relationships of the following types-- 1
(a) marriage or de facto partnership; 2
(b) the relationship of ascendant and descendant (including 3
the relationship of parent and child) or the relationship 4
of persons who have a parent or grandparent in 5
common; 6
(c) business partnership; 7
(d) the relationship of employer and employee; 8
(e) a fiduciary relationship; 9
(f) the relationship of persons, one of whom is accustomed, 10
or under an obligation (whether formal or informal), to 11
act in accordance with the directions, instructions or 12
wishes of the other; 13
(g) the relationship of a corporation and executive officer of 14
the corporation; 15
(h) the relationship of a corporation and a person who is in a 16
position to control or substantially influence the 17
corporation's conduct. 18
`(3) Despite subsection (2)(e) and (f), the owner of a community 19
development lot, precinct development lot or a lot on a 20
building units or group titles plan and a letting agent are not 21
associated merely because of their relationship as owner and 22
letting agent. 23
`(4) In this section-- 24
executive officer, of a corporation, means a person who is 25
concerned with, or takes part in, the corporation's 26
management, whether or not the person is a director or the 27
person's position is given the name of executive officer.'. 28
292 Insertion of new pt 14 and schs 1-5 29
After section 223-- 30
insert-- 31
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`Part 14 Transitional provisions for 1
Local Government Electoral 2
Act 2011 3
`Division 1 Preliminary 4
`224 Definitions for pt 14 5
`In this part-- 6
commencement means commencement of this section. 7
effective day means the day that is 6 months after the 8
commencement. 9
`Division 2 Bodies corporate 10
`225 Deferred application of particular provisions 11
`The following provisions do not apply until the effective 12
day-- 13
(a) section 185A and schedule 2; 14
(b) part 9, divisions 6 to 8. 15
`226 Application of code of conduct for existing voting 16
members of executive committees 17
`(1) This section applies to a person who-- 18
(a) immediately before the effective day, is a voting 19
member of the executive committee of the community 20
body corporate or precinct body corporate; and 21
(b) on the effective day, continues to be a voting member of 22
the executive committee. 23
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`(2) The code of conduct for voting members of the executive 1
committee applies to the person only in relation to acts done 2
or omissions made on or after the effective day. 3
`227 Auditing accounts for first annual general meeting 4
after evaluation day 5
`(1) This section applies if-- 6
(a) before the effective day-- 7
(i) a precinct body corporate authorised a person to 8
prepare a statement of accounts of the body 9
corporate under section 177(1)(f) for adoption at 10
the body corporate's next annual general meeting; 11
and 12
(ii) the person started to prepare the statement of 13
accounts; and 14
(b) the annual general meeting has not happened. 15
`(2) Section 201O does not apply for auditing the statement of 16
accounts for the period to which the authorisation relates. 17
`Division 3 Body corporate managers, service 18
contractors and letting agents 19
`228 Deferred application of particular provisions 20
`The following provisions do not apply until the effective 21
day-- 22
(a) part 9A, divisions 2, 3, 4 and 5; 23
(b) schedules 3 and 4. 24
`229 Application of code of conduct for existing body 25
corporate managers and caretaking service 26
contractors 27
`(1) This section applies to a person who-- 28
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(a) immediately before the effective day is-- 1
(i) the body corporate manager of a community body 2
corporate or precinct body corporate; or 3
(ii) a caretaking service contractor for a site or precinct 4
or part of a site or precinct; and 5
(b) on the effective day, continues to be the body corporate 6
manager of the body corporate or caretaking service 7
contractor for the site or the precinct or the part of the 8
site or precinct. 9
`(2) The code of conduct for body corporate managers and 10
caretaking service contractors applies to the person only in 11
relation to acts done or omissions made on or after the 12
effective day. 13
`230 Application of code of conduct for existing letting 14
agents 15
`(1) This section applies to a person who-- 16
(a) immediately before the effective day, is a letting agent 17
for a site or precinct or part of a site or precinct; and 18
(b) on the effective day, continues to be a letting agent for 19
the site or precinct or the part of the site or precinct. 20
`(2) The code of conduct for letting agents applies to the person 21
only in relation to acts done or omissions made on or after the 22
effective day. 23
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`Schedule 1 Election of executive 1
committee members of 2
bodies corporate 3
section 185(7) 4
`1 Definitions for sch 1 5
`In this schedule-- 6
body corporate means a community body corporate or 7
precinct body corporate. 8
candidate see section 4(3)(a). 9
chairperson means the chairperson of the executive 10
committee. 11
eligibility category, for a candidate, means the category of 12
person mentioned in section 185(7) to which the candidate 13
belongs. 14
executive committee means the executive committee of the 15
body corporate. 16
executive member, of an executive committee, means the 17
chairperson, secretary or treasurer of the committee. 18
ordinary member, of an executive committee, means a 19
member, other than an executive member, of the committee. 20
required number, of members of the executive committee, 21
means the number of members of the executive committee 22
required under section 185 of the Act. 23
secretary means the secretary of the executive committee. 24
treasurer means the treasurer of the executive committee. 25
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`2 Election of members of executive committee 1
[SM, s 15] 2
`(1) Unless otherwise provided under this schedule, the election of 3
a member of the executive committee of a body corporate 4
must be by ballot. 5
Note-- 6
See, for example, section 7 (Election of ordinary members of executive 7
committee). 8
`(2) A ballot for membership of the executive committee must be a 9
secret ballot unless the body corporate decides by ordinary 10
resolution that the election be held by open ballot. 11
`(3) The value of any vote able to be cast for a lot included in a 12
scheme, or a part of a scheme, for choosing a member of the 13
executive committee is the same as the value of the vote able 14
to be cast for each other lot included in the scheme or part of 15
the scheme. 16
`3 Nomination procedures for election of executive 17
committee other than at first annual general meeting 18
[SM, s 16] 19
`(1) This section states how individuals are nominated for election 20
at the body corporate's annual general meeting, other than the 21
first annual general meeting, as a voting member of the 22
executive committee of the body corporate. 23
`(2) The secretary must serve a notice on each member of the body 24
corporate-- 25
(a) inviting nomination for the members of the executive 26
committee; and 27
(b) stating that a nominated person is not eligible to be a 28
voting member of the executive committee if, when the 29
members of the executive committee are chosen, the 30
person owes a relevant body corporate debt in relation to 31
a lot or lots owned by the person. 32
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`(3) The notice must be given at least 3 weeks before, but not 1
earlier than 6 weeks before, the end of the body corporate's 2
financial year. 3
`(4) Nominations must comply with section 4 and must be given to 4
the secretary by the end of the body corporate's financial year. 5
`(5) As soon as practicable after receiving a nomination under this 6
section of a candidate for election, the secretary must forward 7
written notice to the candidate acknowledging the nomination 8
has been received. 9
`4 Requirements for nominations [SM, s 18] 10
`(1) Each member of the body corporate may nominate 1 person 11
for election as a voting member of the executive committee of 12
the body corporate. 13
`(2) A nomination must be made by written notice and-- 14
(a) if the nomination is from a member of the body 15
corporate who is an individual nominating himself or 16
herself--must be signed and dated by the member; or 17
(b) if the nomination is from a member of the body 18
corporate other than a member to whom paragraph (a) 19
applies-- 20
(i) must be signed and dated by the nominated person; 21
and 22
(ii) must be countersigned by the appropriate 23
authorising person. 24
`(3) A nomination must contain each of the following details-- 25
(a) the family name and either the first given name or other 26
name or abbreviation by which the nominated person 27
(the candidate) is generally known; 28
(b) the position or positions the candidate is nominated for; 29
(c) the eligibility category for the candidate; 30
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(d) if the candidate is not a member of the body corporate or 1
a person appointed by a subsidiary body corporate under 2
section 169 of this Act-- 3
(i) the candidate's residential or business address; and 4
(ii) the name of the member who nominated the 5
candidate; 6
(e) details of any payment to be made to, or to be sought by, 7
the candidate from the body corporate for the candidate 8
carrying out the duties of a member of the executive 9
committee. 10
Example of a payment-- 11
payment of the candidate's expenses for travelling to executive 12
committee meetings 13
`(4) In this section-- 14
appropriate authorising person, for a nomination from a 15
member of the body corporate, means-- 16
(a) if the member is an individual--the member; or 17
(b) if the member is a subsidiary body corporate--the 18
person appointed by the member under section 169 of 19
this Act; or 20
(c) if the member is a corporation other than a subsidiary 21
body corporate--a director, secretary or other person 22
nominated by the corporation for this section. 23
`5 Conduct of elections for executive committee by 24
secret ballot [SM, s 21] 25
`(1) This section states how a secret ballot required under this 26
schedule must be held. 27
`(2) After nominations close, the secretary must prepare ballot 28
papers for each of the following for which a ballot is 29
required-- 30
(a) chairperson; 31
(b) secretary; 32
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(c) treasurer; 1
(d) the ordinary members of the executive committee. 2
`(3) Each ballot must be conducted separately. 3
`(4) However, the separate ballots may, but need not, appear on 4
the one document. 5
`(5) For each ballot, the secretary must, if satisfied the 6
nominations comply with section 4, state the names of the 7
properly nominated candidates in alphabetical order of family 8
name, showing-- 9
(a) after each name, a blank space for voting purposes; and 10
(b) the eligibility category for each candidate; and 11
(c) if the candidate is not a member of the body corporate or 12
a person appointed by a subsidiary body corporate under 13
section 169-- 14
(i) the candidate's residential or business address; and 15
(ii) the name of the member who nominated the 16
candidate; and 17
(d) details of any payment to be made to, or to be sought by, 18
the candidate from the body corporate for the candidate 19
carrying out the duties of an executive committee 20
member. 21
`(6) The secretary must forward, with the notices for the annual 22
general meeting-- 23
(a) the ballot papers; and 24
(b) an envelope marked `ballot paper'; and 25
(c) either of the following-- 26
(i) a separate particulars envelope; 27
(ii) a particulars tab that forms part of the ballot paper 28
envelope but that a person may detach without 29
unsealing or otherwise opening the ballot paper 30
envelope. 31
`(7) To vote, a person must-- 32
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(a) for a ballot for the position of chairperson, secretary or 1
treasurer--place a mark in the space opposite the name 2
of the candidate the person wishes to vote for; and 3
(b) for a ballot for the ordinary members' positions--place 4
a mark in each of the spaces opposite the names of 5
however many candidates the person wishes to vote for; 6
and 7
(c) place the ballot paper in the ballot paper envelope 8
supplied by the secretary and seal it; and 9
(d) if a separate particulars envelope is supplied--place the 10
sealed ballot paper envelope in the separate envelope 11
and seal it; and 12
(e) complete the separate particulars envelope or particulars 13
tab by signing and dating the envelope or tab, and 14
inserting the following information on the envelope or 15
tab-- 16
(i) the name of the member for whom the vote is 17
exercised; 18
(ii) the name of the person having the right to vote for 19
the member; 20
(iii) the basis for the person's right to vote; and 21
(f) give the completed particulars envelope with the ballot 22
paper envelope enclosed, or the ballot paper envelope 23
with the completed particulars tab attached, to the 24
secretary, or forward the envelope to the secretary so 25
that the secretary receives it, before or at the annual 26
general meeting. 27
`(8) When a ballot is held-- 28
(a) a voter who has not submitted a vote for the ballot may 29
ask the secretary for a ballot paper, ballot paper 30
envelope and particulars envelope or tab, and vote in the 31
way this section provides; and 32
(b) a voter who wishes to withdraw a vote already made for 33
the ballot and submit a replacement vote, may, if the 34
particulars envelope, or the ballot paper envelope with 35
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particulars tab attached, for the vote already made can 1
be readily identified and withdrawn, ask the secretary 2
for a ballot paper, ballot paper envelope and particulars 3
envelope or tab, and vote in the way this section 4
provides. 5
`(9) All completed ballot papers received before the annual 6
general meeting ends are to be held in the custody of the 7
secretary. 8
`6 Conduct of elections for executive committee by 9
open ballot [SM, s 22] 10
`(1) This section states how an open ballot required under this 11
schedule must be held. 12
`(2) After nominations close, the secretary must prepare ballot 13
papers for each of the following for which a ballot is 14
required-- 15
(a) chairperson; 16
(b) secretary; 17
(c) treasurer; 18
(d) the ordinary members of the executive committee. 19
`(3) Each ballot must be conducted separately. 20
`(4) However, the separate ballots mentioned in subsection (3) 21
may, but need not, appear on the one document. 22
`(5) For each ballot, the secretary must, if satisfied the 23
nominations comply with section 4, list the names of the 24
properly nominated candidates in alphabetical order of family 25
name, showing-- 26
(a) after each name, a blank space for voting purposes; and 27
(b) the eligibility category for each candidate; and 28
(c) if the candidate is not a member of the body corporate or 29
a person appointed by a subsidiary body corporate under 30
section 169-- 31
(i) the candidate's residential or business address; and 32
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(ii) the name of the member who nominated the 1
candidate; and 2
(d) details of any payment to be made to, or to be sought by, 3
the candidate from the body corporate for the candidate 4
carrying out the duties of an executive committee 5
member. 6
`(6) The secretary must forward the ballot papers, and an envelope 7
marked `ballot paper' self-addressed to the secretary, with the 8
notices for the annual general meeting. 9
`(7) To vote, a person must-- 10
(a) for a ballot for the position of chairperson, secretary or 11
treasurer--place a mark in the space opposite the name 12
of the candidate the person wishes to vote for; and 13
(b) for a ballot for the ordinary members' positions--place 14
a mark in each of the spaces opposite the names of 15
however many candidates the person wishes to vote for; 16
and 17
(c) sign each ballot paper the voter completes; and 18
(d) on each completed ballot paper, write the name of the 19
member for whom the vote is exercised; and 20
(e) if the ballot paper is not completed at the annual general 21
meeting-- 22
(i) place the ballot paper in the ballot paper envelope 23
supplied by the secretary; and 24
(ii) seal the envelope, and write on the back of the 25
envelope the name mentioned in paragraph (d); and 26
(iii) give the ballot paper envelope to the secretary, or 27
forward it to the secretary so that the secretary 28
receives it, before or at the annual general meeting; 29
and 30
(f) if the ballot paper is completed at the annual general 31
meeting--give the ballot paper to the secretary before or 32
at the meeting. 33
`(8) When a ballot is held-- 34
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(a) a voter who has not submitted a vote for the ballot may 1
ask the secretary for a ballot paper, and vote in the way 2
this section provides; and 3
(b) a voter who wishes to withdraw a vote already made for 4
the ballot and submit a replacement vote, may, if the 5
vote already made can be readily identified and 6
withdrawn, ask the secretary for a ballot paper and vote 7
in the way this section provides. 8
`(9) All completed ballot papers received before the annual 9
general meeting ends are to be held in the custody of the 10
secretary. 11
`7 Election of ordinary members of executive 12
committee [SM, s 23] 13
`(1) A person nominated as an ordinary member of the executive 14
committee becomes an ordinary member of the committee 15
under section 11 on the basis of the nomination unless it is 16
necessary to have a ballot. 17
`(2) It is necessary to have a ballot for ordinary members of the 18
executive committee if the number of persons nominated for 19
ordinary member positions (other than a person who becomes 20
an executive member of the executive committee), plus the 21
number of executive members of the executive committee, is 22
more than the required number of members for the executive 23
committee. 24
`8 Conduct of ballot--general requirements [SM, s 24] 25
`(1) Any items of business about the election of members of the 26
executive committee that are on the agenda for an annual 27
general meeting must be conducted as the last items of 28
business for the meeting. 29
`(2) The election of members takes effect immediately after the 30
close of the meeting at which they are elected. 31
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`(3) The ballots for the positions on the executive committee for 1
which ballots are required must be conducted in the following 2
order-- 3
· chairperson 4
· secretary 5
· treasurer 6
· ordinary members. 7
`(4) Each ballot may proceed to the count only after the person 8
chairing the meeting has allowed enough time for votes to be 9
cast and announced the close of the ballot. 10
`(5) Each candidate for a ballot, and any scrutineer appointed by 11
the candidate for a ballot, may watch the count for the ballot. 12
`(6) The secretary must pass any ballot papers, particulars 13
envelopes and ballot paper envelopes for the ballot to the 14
person chairing the meeting for counting. 15
`9 Conduct of ballot--scrutiny of votes [SM, s 25] 16
`(1) If a ballot for positions on the executive committee is an open 17
ballot, the person chairing the meeting must-- 18
(a) confirm, by a scrutiny of the details on the back of each 19
ballot paper envelope or each ballot paper itself, that the 20
ballot paper is the vote of a person who has the right to 21
vote in the election; and 22
(b) if a ballot paper is in a ballot paper envelope--take the 23
ballot paper out of the envelope. 24
`(2) If a ballot for positions on the executive committee is a secret 25
ballot, the person chairing the meeting must-- 26
(a) confirm, by a scrutiny of the details on each particulars 27
envelope or particulars tab, that the ballot paper is the 28
vote of a person who has the right to vote in the election; 29
and 30
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(b) take the ballot paper envelope out of the particulars 1
envelope, or detach the particulars tab from the ballot 2
paper envelope; and 3
(c) place the ballot paper envelope in a receptacle in open 4
view of the meeting; and 5
(d) after paragraph (c) has been complied with for all ballot 6
paper envelopes, randomly mix the envelopes; and 7
(e) take each ballot paper out of its envelope. 8
`(3) The person chairing the meeting must record the count of 9
votes in each ballot in the minutes of the meeting. 10
`(4) The person chairing the meeting may delegate a function 11
under subsection (1) or (2) in relation to a ballot for a position 12
on the executive committee to a person attending the meeting 13
who is not a candidate for the position and who the person 14
chairing the meeting considers has sufficient independence. 15
`10 Conduct of ballot--deciding executive member 16
positions [SM, s 26] 17
`(1) If only 1 person is nominated for the position of chairperson, 18
secretary or treasurer, the person chairing the meeting, if 19
satisfied the nomination complies with this schedule, must 20
declare the person to have been elected unopposed. 21
`(2) If, for the position of chairperson, secretary or treasurer, there 22
has been no nomination, the person chairing the meeting-- 23
(a) must invite nominations for the position at the meeting; 24
and 25
(b) must accept nominations that are made in either of the 26
following ways-- 27
(i) by members of the body corporate who are 28
personally present or represented at the meeting; 29
(ii) in writing, by members of the body corporate not 30
personally present or represented at the meeting. 31
`(3) A member of the body corporate may nominate, under 32
subsection (2), not more than 1 person for the position. 33
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`(4) To remove any doubt, it is declared that the member may 1
make the nomination whether or not the member made a 2
nomination under section 3 for an ordinary member's position 3
on the executive committee. 4
`(5) If more than 1 person has nominated for a position, a ballot is 5
conducted, and the person who receives the highest number of 6
votes is declared elected. 7
`(6) If, on a counting of votes, 2 or more persons each receive an 8
identical number of votes, and no other candidate receives a 9
higher number of votes, the result must be decided between 10
the 2 or more persons by chance in the way the meeting 11
decides. 12
`11 Conduct of ballot--deciding ordinary member 13
positions [SM, s 27] 14
`(1) The positions of the ordinary members of the executive 15
committee are decided only after the executive member 16
positions on the executive committee are filled. 17
`(2) A person's nomination for a position as an ordinary member 18
has no effect if the person is elected as an executive member 19
of the executive committee, even if the person's name appears 20
on a ballot for ordinary members forwarded before the 21
meeting. 22
`(3) If the number of candidates nominated for ordinary member 23
positions, plus the number of executive members of the 24
executive committee, is not more than the required number of 25
members for the executive committee, the person chairing the 26
meeting, if satisfied the nominations for the ordinary member 27
positions comply with section 4, must declare the candidates 28
to have been elected as ordinary members. 29
`(4) However, if the number of candidates nominated for ordinary 30
member positions, plus the number of executive members of 31
the executive committee, is less than the required number of 32
members for the executive committee, the person chairing the 33
meeting must invite nominations at the meeting for the 34
number of ordinary member positions necessary to bring the 35
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total number of all executive committee members to not more 1
than the required number of members for the executive 2
committee. 3
`(5) The person chairing the meeting-- 4
(a) must invite nominations for the position or positions at 5
the meeting; and 6
(b) must accept nominations that are made in either of the 7
following ways-- 8
(i) by members of the body corporate who are 9
personally present or represented at the meeting; 10
(ii) in writing, by members of the body corporate not 11
personally present or represented at the meeting. 12
`(6) A member of the body corporate may nominate, under 13
subsection (5), not more than 1 person for all ordinary 14
member positions for which nominations are invited. 15
`(7) To remove any doubt, it is declared that the member may 16
make the nomination whether or not the member made a 17
nomination under section 3 for a position on the executive 18
committee. 19
`(8) If the number of candidates nominated for ordinary member 20
positions, plus the number of executive members of the 21
executive committee, is more than the required number of 22
members for the executive committee, the person chairing the 23
meeting must proceed with the scrutiny of the ballot papers 24
relating to the ordinary member positions. 25
`(9) The persons who receive the highest numbers of votes, in 26
descending order until the executive committee numbers the 27
required number of members for the executive committee, 28
must be declared elected as the ordinary members. 29
`(10) If, on a counting of votes, 2 or more persons each receive an 30
identical number of votes and the number of persons to be 31
elected would be exceeded if the 2 or more persons were 32
declared elected, the result of the ballot must be decided 33
between the 2 or more persons by chance in the way the 34
meeting decides. 35
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`(11) For the counting of votes for positions of ordinary members of 1
the executive committee on ballot papers completed before 2
the annual general meeting, a mark against the name of each 3
person who has already been elected to an executive member 4
position is void. 5
`12 Conduct of ballot--declaration of voting results 6
[SM, s 28] 7
`(1) The person chairing an annual general meeting must declare 8
the result of an election. 9
`(2) When declaring the result of an election, the person chairing 10
the meeting must state the number of votes cast for each 11
candidate. 12
`(3) The number of votes cast for each candidate must be recorded 13
in the minutes of the meeting. 14
`(4) The voting tally sheet kept for the meeting must include, for 15
each ballot that is an open ballot under section 6-- 16
(a) a list of the votes, identified by the names of the 17
members on whose behalf the votes were cast, rejected 18
as informal; and 19
(b) for each vote rejected--the reason for the rejection; and 20
(c) the total number of votes counted for each candidate. 21
`(5) The voting tally sheet kept for the meeting must include, for 22
each ballot that is a secret ballot under section 5-- 23
(a) a list of the votes, identified by the names of the 24
members on whose behalf the votes were cast, rejected 25
from the count before the enclosing ballot paper 26
envelopes were opened; and 27
(b) a list of the votes taken out of ballot paper envelopes for 28
counting, but rejected as informal; and 29
(c) for each vote rejected--the reason for the rejection; and 30
(d) the total number of votes counted for each candidate. 31
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`(6) The voting tally sheet may be inspected at the meeting by any 1
of the following persons-- 2
(a) a person who is a voter for the meeting; 3
(b) a candidate; 4
(c) the returning officer, if any, appointed by the body 5
corporate for the meeting; 6
(d) the person chairing the meeting; 7
(e) a scrutineer appointed by a candidate for the ballot. 8
`Schedule 2 Code of conduct for voting 9
members of 10
executive committees 11
section 185A(1) and schedule 5, definition code of conduct 12
`1 Commitment to acquiring understanding of Act, 13
including this code 14
`A voting member of the executive committee of a community 15
body corporate or precinct body corporate must have a 16
commitment to acquiring an understanding of this Act, 17
including this code of conduct, relevant to the member's role 18
on the executive committee. 19
`2 Honesty, fairness and confidentiality 20
`(1) The voting member must act honestly and fairly in performing 21
the member's functions as a voting member. 22
`(2) The voting member must not unfairly or unreasonably 23
disclose information held by the body corporate, including 24
information about an owner of a lot, unless authorised or 25
required by law to do so. 26
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`3 Acting in best interests of body corporate and 1
persons with estate or interest in lots 2
`Unless it is unlawful to do so, the voting member must, in 3
performing the member's functions as a voting member, act in 4
the best interests of-- 5
(a) the body corporate; and 6
(b) either-- 7
(i) for a voting member of the executive committee of 8
a community body corporate for a site--the 9
proprietors and occupiers of, and other persons 10
having an estate or interest in, the lots in the site; or 11
(ii) for a voting member of the executive committee of 12
a precinct body corporate for a precinct--the 13
proprietors and occupiers of, and other persons 14
having an estate or interest in, the lots in the 15
precinct. 16
`4 Complying with Act and this code 17
`The voting member must take reasonable steps to ensure the 18
member complies with this Act, including this code, in 19
performing the member's functions as a voting member. 20
`5 Conflict of interest 21
`The voting member must disclose to the executive committee 22
any conflict of interest the member may have in a matter 23
before the executive committee. 24
Page 273
Local Government Electoral Bill 2011
Part 12 Amendments of Acts and a regulation
[s 292]
`Schedule 3 Code of conduct for body 1
corporate managers 2
and caretaking service 3
contractors 4
section 201V(1) and schedule 5, definition code of conduct 5
`1 Knowledge of Act, including code 6
`A body corporate manager or caretaking service contractor 7
appointed or engaged by a community body corporate or 8
precinct body corporate for a site or precinct must have a good 9
working knowledge and understanding of this Act, including 10
this code of conduct, relevant to the person's functions under 11
the person's appointment or engagement. 12
`2 Honesty, fairness and professionalism 13
`(1) The body corporate manager or caretaking service contractor 14
must act honestly, fairly and professionally in performing the 15
person's functions under the person's appointment or 16
engagement. 17
`(2) The body corporate manager must not attempt to unfairly 18
influence the outcome of an election for the executive 19
committee of the body corporate. 20
`3 Skill, care and diligence 21
`The body corporate manager or caretaking service contractor 22
must exercise reasonable skill, care and diligence in 23
performing the person's functions under the person's 24
appointment or engagement. 25
Page 274
Local Government Electoral Bill 2011
Part 12 Amendments of Acts and a regulation
[s 292]
`4 Acting in body corporate's best interests 1
`The body corporate manager or caretaking service contractor 2
must act in the best interests of the body corporate unless it is 3
unlawful to do so. 4
`5 Keeping body corporate informed of developments 5
`The body corporate manager or caretaking service contractor 6
must keep the body corporate informed of any significant 7
development or issue about an activity performed for the body 8
corporate. 9
`6 Ensuring employees comply with Act and code 10
`The body corporate manager or caretaking service contractor 11
must take reasonable steps to ensure an employee of the 12
person complies with this Act, including this code, in 13
performing the person's functions under the person's 14
appointment or engagement. 15
`7 Fraudulent or misleading conduct 16
`The body corporate manager or caretaking service contractor 17
must not engage in fraudulent or misleading conduct in 18
performing the person's functions under the person's 19
appointment or engagement. 20
`8 Unconscionable conduct 21
`The body corporate manager or caretaking service contractor 22
must not engage in unconscionable conduct in performing the 23
person's functions under the person's appointment or 24
engagement. 25
Examples of unconscionable conduct-- 26
· taking unfair advantage of the person's superior knowledge relative 27
to the body corporate 28
· requiring the body corporate to comply with conditions that are 29
unlawful or not reasonably necessary 30
Page 275
Local Government Electoral Bill 2011
Part 12 Amendments of Acts and a regulation
[s 292]
· exerting undue influence on, or using unfair tactics against, the 1
body corporate or the owner of a lot in the site or precinct 2
`9 Conflict of duty or interest 3
`The body corporate manager or caretaking service contractor 4
for a site or precinct must not accept another appointment or 5
engagement if doing so will place the person's functions or 6
interests as the manager or contractor in conflict with the 7
person's functions or interests for the other appointment or 8
engagement. 9
Example of another appointment or engagement-- 10
an appointment as the body corporate manager or an engagement as a 11
caretaking service contractor for another site or precinct 12
`10 Goods and services to be supplied at competitive 13
prices 14
`The body corporate manager or caretaking service contractor 15
must take reasonable steps to ensure goods and services the 16
person obtains for or supplies to the body corporate are 17
obtained or supplied at competitive prices. 18
`11 Body corporate manager to demonstrate keeping of 19
particular records 20
`If the body corporate or its executive committee gives the 21
body corporate manager a written request to show that the 22
manager has kept the body corporate records as required 23
under this Act, the manager must comply with the request 24
within the reasonable period stated in the request. 25
Page 276
Local Government Electoral Bill 2011
Part 12 Amendments of Acts and a regulation
[s 292]
`Schedule 4 Code of conduct for letting 1
agents 2
section 201W and schedule 5, definition code of conduct 3
`1 Honesty, fairness and professionalism 4
`A letting agent must act honestly, fairly and professionally in 5
conducting the letting agent business at a site or precinct 6
under the letting agent's authorisation. 7
`2 Skill, care and diligence 8
`The letting agent must exercise reasonable skill, care and 9
diligence in conducting the letting agent business under the 10
letting agent's authorisation. 11
`3 Acting in body corporate's and individual lot owner's 12
best interests 13
`Unless it is unlawful to do so, the letting agent must, as far as 14
practicable, act in the best interests of-- 15
(a) the community body corporate or precinct body 16
corporate that has given the letting agent's authorisation; 17
and 18
(b) individual owners of lots in the site or precinct. 19
`4 Ensuring employees comply with Act and code 20
`The letting agent must take reasonable steps to ensure an 21
employee of the letting agent complies with this Act, 22
including this code, in conducting the letting agent business 23
under the letting agent's authorisation. 24
Page 277
Local Government Electoral Bill 2011
Part 12 Amendments of Acts and a regulation
[s 292]
`5 Fraudulent or misleading conduct 1
`The letting agent must not engage in fraudulent or misleading 2
conduct in conducting the letting agent business under the 3
letting agent's authorisation. 4
`6 Unconscionable conduct 5
`The letting agent must not engage in unconscionable conduct 6
in conducting the letting agent business under the letting 7
agent's authorisation. 8
Examples of unconscionable conduct-- 9
· taking unfair advantage of the person's position as letting agent 10
relative to the body corporate or the owner of a lot in the site or 11
precinct 12
· exerting undue influence on, or using unfair tactics against, the 13
body corporate or the owner of a lot in the site or precinct 14
`7 Nuisance 15
`The letting agent must not-- 16
(a) cause a nuisance or hazard at the site or precinct; or 17
(b) interfere unreasonably with the use or enjoyment of a lot 18
in the site or precinct; or 19
(c) interfere unreasonably with the use or enjoyment of 20
common property in the site or precinct by a person who 21
is lawfully on the common property; or 22
(d) otherwise behave in a way that unreasonably affects a 23
person's lawful use or enjoyment of a lot or common 24
property in the site or precinct. 25
`8 Goods and services to be supplied at competitive 26
prices 27
`The letting agent must take reasonable steps to ensure goods 28
and services the letting agent obtains for, or supplies to, the 29
body corporate are obtained or supplied at competitive prices. 30
Page 278
Local Government Electoral Bill 2011
Part 12 Amendments of Acts and a regulation
[s 293]
`Schedule 5 Dictionary 1
section 3'. 2
Division 11 Amendment of Neighbourhood 3
Disputes Resolution Act 2011 4
293 Act amended 5
This division amends the Neighbourhood Disputes Resolution 6
Act 2011. 7
294 Amendment of s 9 (Non-application of provisions to 8
barrier of regulated pool) 9
(1) Section 9, `under the Building Act 1975'-- 10
omit. 11
(2) Section 9, note, `section 231B'-- 12
omit, insert-- 13
`chapter 8, part 2A'. 14
(3) Section 9-- 15
insert-- 16
`(2) In this section-- 17
regulated pool means a regulated pool under the Building Act 18
1975 as if a reference to a regulated pool in this section were a 19
reference to a regulated pool in chapter 8, part 2A of that 20
Act.'. 21
Page 279
Local Government Electoral Bill 2011
Part 12 Amendments of Acts and a regulation
[s 295]
Division 12 Amendment of Public Trustee Act 1
1978 2
295 Act amended 3
This division amends the Public Trustee Act 1978. 4
296 Amendment of s 17A (Priority etc. of fees and charges) 5
(1) Section 17A(4)-- 6
renumber as section 17A(5). 7
(2) Section 17A-- 8
insert-- 9
`(4) The public trustee's interest under subsection (1) or (3) in 10
relation to personal property is declared to be a statutory 11
interest to which section 73(2) of the Personal Property 12
Securities Act 2009 (Cwlth) applies.'. 13
(3) Section 17A-- 14
insert-- 15
`(6) In this section-- 16
`personal property see the Personal Property Securities Act 17
2009 (Cwlth), section 10.'. 18
297 Amendment of s 98 (Definitions) 19
Section 98, definition unclaimed moneys, paragraph (b), `1 20
year'-- 21
omit, insert-- 22
`2 years'. 23
298 Amendment of s 99A (Public trustee's register of 24
unclaimed moneys) 25
(1) Section 99A(3)-- 26
Page 280
Local Government Electoral Bill 2011
Part 12 Amendments of Acts and a regulation
[s 299]
omit, insert-- 1
`(3) The public trustee may publish details in the register on the 2
public trustee's website or by any other way decided by the 3
public trustee. 4
`(3A) A person may, on payment of the fee fixed under section 17, 5
inspect the register and obtain a copy of the details in the 6
register. 7
`(3B) The details in the register published under subsection (3) must 8
be the minimum details considered by the public trustee as 9
necessary to give reasonable notice to the person for whom 10
the money is held.'. 11
(2) Section 99A(3A) to (4)-- 12
renumber as section 99A(4) to (6). 13
Division 13 Amendment of Queensland Civil 14
and Administrative Tribunal Act 15
2009 16
299 Act amended 17
This division amends the Queensland Civil and 18
Administrative Tribunal Act 2009. 19
300 Amendment of s 12 (When jurisdiction for minor civil 20
dispute exercised) 21
Section 12(4), definition relevant person-- 22
insert-- 23
`(h) for a matter under the Building Act 1975, chapter 8, part 24
2A--a person who, under the Building Act 1975, 25
chapter 8, part 2A may apply to the tribunal for a 26
decision in relation to the matter.'. 27
Page 281
Local Government Electoral Bill 2011
Part 12 Amendments of Acts and a regulation
[s 301]
301 Amendment of s 13 (Deciding minor civil dispute 1
generally) 2
(1) Section 13(2)-- 3
insert-- 4
`(d) for a claim that is the subject of a dispute under the 5
Building Act 1975, chapter 8, part 2A--a decision or 6
order the tribunal may make in relation to the matter 7
under the Building Act 1975, chapter 8, part 2A.'. 8
(2) Section 13(4), after note-- 9
insert-- 10
`(c) a claim that is the subject of a dispute under the Building 11
Act 1975, chapter 8, part 2A.'. 12
302 Amendment of sch 3 (Dictionary) 13
Schedule 3, definition minor civil dispute, item 1-- 14
insert-- 15
`(g) a matter in relation to which a person may, under 16
the Building Act 1975, chapter 8, part 2A apply to 17
the tribunal for an order. 18
Note-- 19
A matter mentioned in paragraph (g) would relate to part 20
of a barrier for a swimming pool along a common 21
boundary.'. 22
Division 14 Amendment of Sanctuary Cove 23
Resort Act 1985 24
303 Act amended 25
This division amends the Sanctuary Cove Resort Act 1985. 26
Page 282
Local Government Electoral Bill 2011
Part 12 Amendments of Acts and a regulation
[s 304]
304 Replacement of s 4B (Meaning of proposed use plan of 1
the site or adjacent site) 2
Section 4B-- 3
omit, insert-- 4
`4B Meaning of proposed use plan of the site and 5
adjacent site 6
`(1) The proposed use plan of the site is-- 7
(a) the plan of survey of the site that was approved under 8
section 8(4) or (7) as in force immediately before 2 9
October 2009; or 10
(b) if an amendment of the plan is approved under section 11
8(2) or 12M--the amended plan for the time being 12
approved. 13
`(2) However, if a plan of survey is approved under section 7(4), 14
the proposed use plan of the site is-- 15
(a) the plan of survey approved under that subsection; or 16
(b) if an amendment of the plan is approved under section 17
8(2) or 12M--the amended plan for the time being 18
approved. 19
`(3) The proposed use plan of the adjacent site is-- 20
(a) the plan of survey of the adjacent site that was approved 21
under section 12D(4) or 12D(7) as in force immediately 22
before 2 October 2009; or 23
(b) if an amendment of the plan is approved under section 24
12D(2) or 12M--the amended plan for the time being 25
approved. 26
`(4) However, if a plan of survey is approved by the local 27
government under section 12C(4), the proposed use plan of 28
the adjacent site is-- 29
(a) the plan of survey approved under that subsection; or 30
(b) if an amendment of the plan is approved under section 31
12D(2) or 12M--the amended plan for the time being 32
approved. 33
Page 283
Local Government Electoral Bill 2011
Part 12 Amendments of Acts and a regulation
[s 305]
`(5) To remove any doubt, it is declared that the approval of an 1
amendment of the proposed use plan of the site or adjacent 2
site under section 12M does not limit the later amendment and 3
approval of the plan under section 8(2) or 12D(2).'. 4
305 Amendment of s 7 (Proposed use plan of the site) 5
(1) Section 7, heading-- 6
omit, insert-- 7
`7 Approval of plan of survey'. 8
(2) Section 7(7) to (9)-- 9
omit. 10
306 Insertion of new s 8 11
After section 7-- 12
insert-- 13
`8 Amendment of proposed use plan for minor 14
boundary variation 15
`(1) The primary thoroughfare body corporate may lodge with the 16
local government a plan of survey (the amending plan) 17
varying the boundaries of the zones as shown on the proposed 18
use plan of the site. 19
`(2) The local government may approve the amending plan if it is 20
satisfied-- 21
(a) the plan adequately defines the boundaries of all the 22
zones within the site; and 23
(b) the number of building unit lots and group title lots 24
stated in the schedule included with the plan-- 25
(i) is appropriate to the nature of the proposed 26
development of the site; and 27
(ii) is not more than the relevant maximum for the site; 28
and 29
Page 284
Local Government Electoral Bill 2011
Part 12 Amendments of Acts and a regulation
[s 307]
(c) the variation of the boundaries is of a minor nature and 1
does not substantially prejudice the rights of any person. 2
`(3) For deciding the number of group title lots or building unit 3
lots into which a particular zone may be subdivided for 4
residential purposes-- 5
(a) a group title lot that is subdivided into lots resulting in 6
no area, other than common property, of the lot 7
remaining must not be counted; and 8
(b) the group title lots or building unit lots created from the 9
subdivision must be counted. 10
`(4) The local government must-- 11
(a) keep the approved amending plan; and 12
(b) give a copy of it to-- 13
(i) the registrar of titles; and 14
(ii) the chief executive. 15
`(5) In this section-- 16
relevant maximum, for the site, means-- 17
(a) if the proposed use plan of the site is the proposed use 18
plan under section 4B(1)--900; or 19
(b) if the proposed use plan of the site is the proposed use 20
plan under section 4B(2)--1100.'. 21
307 Amendment of s 10 (Initial subdivision within the site) 22
(1) Section 10(8)(b)(i), `section 7(8)'-- 23
omit, insert-- 24
`section 8(2)'. 25
(2) Section 10(8)(b)(ii), `section 12P'-- 26
omit, insert-- 27
`section 12M'. 28
Page 285
Local Government Electoral Bill 2011
Part 12 Amendments of Acts and a regulation
[s 308]
308 Amendment of s 12C (Proposed use plan of the adjacent 1
site) 2
(1) Section 12C, heading-- 3
omit, insert-- 4
`12C Approval of plan of survey'. 5
(2) Section 12C(7) to (9)-- 6
omit. 7
309 Insertion of new s 12D 8
After section 12C-- 9
insert-- 10
`12D Amendment of proposed use plan for minor 11
boundary variation 12
`(1) The primary thoroughfare body corporate may lodge with the 13
local government a plan of survey (the amending plan) 14
varying the boundaries of the zones as shown on the proposed 15
use plan of the adjacent site. 16
`(2) The local government may approve the amending plan if it is 17
satisfied-- 18
(a) the plan adequately defines the boundaries of all the 19
zones within the adjacent site; and 20
(b) the number of building unit lots and group title lots 21
stated in the schedule included with the plan-- 22
(i) is appropriate to the nature of the proposed 23
development of the adjacent site; and 24
(ii) is not more than the relevant maximum for the 25
adjacent site; and 26
(c) the variation of the boundaries is of a minor nature and 27
does not substantially prejudice the rights of any person. 28
`(3) For deciding the number of group title lots or building unit 29
lots into which a particular zone may be subdivided for 30
residential purposes-- 31
Page 286
Local Government Electoral Bill 2011
Part 12 Amendments of Acts and a regulation
[s 310]
(a) a group title lot that is subdivided into lots resulting in 1
no area, other than common property, of the lot 2
remaining must not be counted; and 3
(b) the group title lots or building unit lots created from the 4
subdivision must be counted. 5
`(4) The local government must-- 6
(a) keep the approved amending plan; and 7
(b) give a copy of it to-- 8
(i) the registrar of titles; and 9
(ii) the chief executive. 10
`(5) In this section-- 11
relevant maximum, for the adjacent site, means-- 12
(a) if the proposed use plan of the adjacent site is the 13
proposed use plan under section 4B(3)--1100; or 14
(b) if the proposed use plan of the adjacent site is the 15
proposed use plan under section 4B(4)--900.'. 16
310 Amendment of s 12F (Initial subdivision within the 17
adjacent site) 18
(1) Section 12F(8)(b)(i), `section 12C(8)'-- 19
omit, insert-- 20
`section 12D(2)'. 21
(2) Section 12F(8)(b)(ii), `section 12P'-- 22
omit, insert-- 23
`section 12M'. 24
311 Amendment of s 12I (Amendment applications) 25
Section 12I(1)(b)(ii), `section 7(8) or 12C(8)'-- 26
omit, insert-- 27
`section 8(2) or 12D(2)'. 28
Page 287
Local Government Electoral Bill 2011
Part 12 Amendments of Acts and a regulation
[s 312]
312 Amendment of s 12P (Approval of amendment of relevant 1
plan) 2
Section 12P(4)-- 3
omit, insert-- 4
`(4) After receiving copies of the documents mentioned in 5
subsection (2)(d), the registrar of titles must register the 6
amended plan.'. 7
313 Amendment of s 15A (Plan of survey where variation of 8
boundary approved) 9
(1) Section 15A(1), from `section 7(8)' to `12P'-- 10
omit, insert-- 11
`section 8(2) or 12D(2) or by the Governor in Council under 12
section 12M'. 13
(2) Section 15A(3), `section 12P'-- 14
omit, insert-- 15
`section 12M'. 16
314 Amendment of s 114 (References to proposed use plan of 17
site) 18
(1) Section 114(1)(b)-- 19
insert-- 20
`Note-- 21
Paragraph (b) refers to section 4B(1) as in force before the 22
commencement of the Local Government Electoral Act 2011, 23
section 304.'. 24
(2) Section 114-- 25
insert-- 26
`(3) This section stops applying on the commencement of section 27
4B(1) and (2) as inserted by the Local Government Electoral 28
Act 2011.'. 29
Page 288
Local Government Electoral Bill 2011
Part 12 Amendments of Acts and a regulation
[s 315]
315 Amendment of s 115 (References to proposed use plan of 1
adjacent site) 2
(1) Section 115(1)(b)-- 3
insert-- 4
`Note-- 5
Paragraph (b) refers to section 4B(2) as in force before the 6
commencement of the Local Government Electoral Act 2011, 7
section 304.'. 8
(2) Section 115-- 9
insert-- 10
`(3) This section stops applying on the commencement of section 11
4B(3) and (4) as inserted by the Local Government Electoral 12
Act 2011.'. 13
316 Amendment of sch 9 (Dictionary) 14
Schedule 9, definition proposed use plan-- 15
omit, insert-- 16
`proposed use plan-- 17
(a) of the site--see section 4B(1) and (2); or 18
(b) of the adjacent site--see section 4B(3) and (4).'. 19
Division 15 Amendment of State Penalties 20
Enforcement Act 1999 21
317 Act amended 22
This division amends the State Penalties Enforcement Act 23
1999. 24
318 Amendment of s 63 (Issue of enforcement warrant) 25
(1) Section 63(8)-- 26
Page 289
Local Government Electoral Bill 2011
Part 12 Amendments of Acts and a regulation
[s 318]
renumber as section 63(11). 1
(2) Section 63-- 2
insert-- 3
`(8) A charge imposed on personal property under an enforcement 4
warrant-- 5
(a) is declared to be a statutory interest to which section 6
73(2) of the PPS Act applies; and 7
(b) has priority over all security interests in relation to the 8
personal property other than those registered on the PPS 9
register before the charge is mentioned on the register. 10
`(9) Subsection (10) applies to the following fees, expenses and 11
costs to the extent the fees, expenses and costs relate to 12
personal property under an enforcement warrant-- 13
(a) the enforcement officer's fees and expenses mentioned 14
in section 73J(2); 15
(b) other enforcement costs mentioned in section 73J(3)(a). 16
`(10) The fees, expenses and costs mentioned in subsection (9)-- 17
(a) are declared to be statutory interests to which section 18
73(2) of the PPS Act applies; and 19
(b) have priority over all security interests in relation to the 20
personal property.'. 21
(3) Section 63(11), as renumbered-- 22
insert-- 23
`personal property see the PPS Act, section 10. 24
PPS Act means the Personal Property Securities Act 2009 25
(Cwlth). 26
PPS register means the Personal Property Securities Register 27
under the PPS Act. 28
security interest see the PPS Act, section 12.'. 29
Page 290
Local Government Electoral Bill 2011
Part 12 Amendments of Acts and a regulation
[s 319]
319 Amendment of s 73J (Accountability for, and distribution 1
of, money received) 2
Section 73J(3) and (4)-- 3
omit, insert-- 4
`(3) The registrar must apply the money received from the 5
enforcement officer in the following order-- 6
(a) in payment of any other enforcement costs incurred by 7
SPER in seizing and selling, or attempting to seize and 8
sell, the property; 9
(b) if there is an amount owing to an entity under a security 10
interest registered for the property on the PPS register 11
before the charge on the property is mentioned on the 12
register--in payment of the amount owing under the 13
security interest; 14
(c) in payment of the amount recoverable under the 15
enforcement warrant other than costs; 16
(d) if there is an amount owing to an entity under a security 17
interest registered for the property on the PPS register 18
after the charge on the property is mentioned on the 19
register--in payment of the amount owing under the 20
security interest; 21
(e) in payment of any balance to the enforcement debtor. 22
`(4) To remove any doubt, it is declared for subsection (3)(b) and 23
(d) that, if there is an amount owing to more than 1 entity, the 24
priority between the entities is to be determined under the PPS 25
Act. 26
`(5) In this section-- 27
charge means a charge mentioned in section 63(8). 28
PPS Act means the Personal Property Securities Act 2009 29
(Cwlth). 30
PPS register means the Personal Property Securities Register 31
under the PPS Act. 32
security interest see the PPS Act, section 12.'. 33
Page 291
Local Government Electoral Bill 2011
Part 12 Amendments of Acts and a regulation
[s 320]
320 Insertion of new pt 10, div 7 1
Part 10-- 2
insert-- 3
`Division 7 Transitional provision for Local 4
Government Electoral Act 2011 5
`183 Effect of regulation amendment 6
`The amendment of the State Penalties Enforcement 7
Regulation 2000 by the Local Government Electoral Act 2011 8
does not affect the power of the Governor in Council to 9
further amend the regulation or to repeal it.'. 10
Division 16 Amendment of State Penalties 11
Enforcement Regulation 2000 12
321 Regulation amended 13
This division amends the State Penalties Enforcement 14
Regulation 2000. 15
322 Insertion of new s 6A 16
Part 2-- 17
insert-- 18
`6A Administering authority for Local Government 19
Electoral Act 2011 20
`The administering authority for an infringement notice 21
offence that is an offence against a provision of the Local 22
Government Electoral Act 2011, or an infringement notice 23
about the offence, is the Electoral Commission of 24
Queensland.'. 25
Page 292
Local Government Electoral Bill 2011
Part 12 Amendments of Acts and a regulation
[s 323]
323 Amendment of sch 1 (Consumer related legislation) 1
Schedule 1, entry for the Motor Vehicles and Boats Securities 2
Act 1986-- 3
omit. 4
324 Amendment of sch 5 (Other legislation) 5
Schedule 5-- 6
insert-- 7
`Local Government Electoral Act 2011 8
Column 1 Column 2
Infringement notice offence Infringement notice fine
(penalty units)
s 168(1)(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
s 168(1)(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Authorised person for service of infringement notices--the electoral 9
commissioner under the Electoral Act 1992'. 10
Page 293
Local Government Electoral Bill 2011
Schedule
Schedule Dictionary 1
section 4 2
agent, for a group of candidates, means the agent for the 3
group recorded in a register of group agents under section 43. 4
applicant, for part 7, see section 135. 5
application, for part 7, see section 135. 6
approved form means a form approved by the electoral 7
commission under section 207. 8
assistant returning officer, for an election, means a person 9
appointed under section 10 as an assistant returning officer for 10
the election. 11
associated entity means an incorporated or unincorporated 12
body, or the trustee of a trust, that-- 13
(a) is controlled by 1 or more political parties; or 14
(b) operates wholly or mainly for the benefit of 1 or more 15
political parties. 16
by-election means an election to replace a councillor after the 17
councillor's office becomes vacant. 18
Note-- 19
See the Local Government Act 2009, chapter 6, part 2, division 3 or the 20
City of Brisbane Act 2010, chapter 6, part 2, division 3, for when a 21
vacancy in the office of a councillor must be filled by a by-election. 22
candidate means a person whose nomination for election as a 23
councillor has been certified by the returning officer under 24
section 31(1)(a). 25
candidate's disclosure period, for part 6, see section 106. 26
conclusion, of an election, see section 7. 27
councillor, of a local government, includes the mayor. 28
Court of Disputed Returns see the Electoral Act 1992, 29
section 139. 30
Page 294
Local Government Electoral Bill 2011
Schedule
cut-off day, for the voters roll for an election, means the day 1
to which the voters roll for the election must be compiled 2
under section 18. 3
declaration envelope means an envelope-- 4
(a) on which there is a form of declaration that is to be 5
made by an elector; and 6
(b) in which the elector's ballot paper is to be sealed. 7
deposit, in relation to a nomination, means the amount 8
deposited under section 39 for the nomination. 9
distribute, a how-to-vote card-- 10
(a) includes make the card available to other persons; but 11
(b) does not include merely displaying the card. 12
Examples-- 13
1 A person distributes how-to-vote cards if the person hands the cards 14
to other persons or leaves them at a place for other persons to take 15
away. 16
2 A person does not distribute how-to-vote cards if the person 17
attaches the cards to walls and other structures, merely for display. 18
division, of a local government area, means a division of the 19
area established for the election of councillors or a councillor. 20
early polling booth see section 46(4). 21
elect includes re-elect. 22
election means a local government election. 23
election material means anything able to, or intended to-- 24
(a) influence an elector about voting at an election; or 25
(b) affect the result of an election. 26
election period, for an election, means the period-- 27
(a) starting on the day when public notice of the holding of 28
the election is given under section 25(1); and 29
(b) ending on the close of the poll for the election. 30
elector means a person entitled to vote in an election. 31
Page 295
Local Government Electoral Bill 2011
Schedule
electoral commission means the Electoral Commission of 1
Queensland established under the Electoral Act 1992, section 2
7. 3
electoral district means an electoral district under the 4
Electoral Act 1992. 5
electoral officer means the returning officer, an assistant 6
returning officer or an issuing officer. 7
electoral paper means a ballot paper or declaration envelope. 8
electoral roll means an electoral roll kept under the Electoral 9
Act 1992, section 58. 10
emergency means-- 11
(a) a storm, tempest, flood, fire or a similar happening; or 12
(b) a riot or open violence. 13
first-preference vote, recorded on a ballot paper, means the 14
number 1, or a tick or cross, written in a square opposite the 15
name of a candidate on the ballot paper. 16
formal, in relation to a vote, means the vote is recorded on a 17
formal ballot paper. 18
formal ballot paper means a ballot paper that is a formal 19
ballot paper under-- 20
(a) for optional-preferential voting--section 86(7); or 21
(b) for first-past-the-post voting--section 87(6). 22
fresh election means an election of all the councillors of a 23
local government that is not a quadrennial election. 24
gift, for part 6, see section 107(1) and (2). 25
gifts register, for part 6, see section 106. 26
group of candidates-- 27
1 A group of candidates, for an election, means a group of 28
individuals, each of whom is a candidate for the 29
election, if the group was formed-- 30
(a) to promote the election of the candidates; or 31
Page 296
Local Government Electoral Bill 2011
Schedule
(b) to share in the benefits of fundraising to promote 1
the election of the candidates. 2
2 However, a group of candidates, for an election, does 3
not include a political party or an associated entity. 4
group's disclosure period, for part 6, see section 106. 5
how-to-vote card means-- 6
(a) a card, handbill or pamphlet, relating to an election for 7
which optional-preferential voting applies, that-- 8
(i) is or includes-- 9
(A) a representation of a ballot paper or part of a 10
ballot paper; or 11
(B) something apparently intended to represent a 12
ballot paper or part of a ballot paper; or 13
(ii) lists the names of any or all of the candidates for 14
the election with a number indicating an order of 15
voting preference against the names of any or all of 16
the candidates; or 17
(iii) otherwise directs or encourages the casting of 18
preference votes, other than first-preference votes, 19
in a particular way; or 20
(b) a card, handbill or pamphlet, relating to an election for 21
which first-past-the-post voting applies, that-- 22
(i) is or includes-- 23
(A) a representation of a ballot paper or part of a 24
ballot paper; or 25
(B) something apparently intended to represent a 26
ballot paper or part of a ballot paper; or 27
(ii) directs or encourages the casting of a vote for a 28
number of particular candidates equal to the 29
number of candidates to be elected. 30
informal, in relation to a vote, means the vote is recorded on 31
an informal ballot paper. 32
Page 297
Local Government Electoral Bill 2011
Schedule
informal ballot paper means a ballot paper that is an informal 1
ballot paper under-- 2
(a) for optional-preferential voting--section 86(8); or 3
(b) for first-past-the-post voting--section 87(7). 4
institution means any of the following-- 5
(a) a hospital; 6
(b) a convalescent home; 7
(c) a nursing home; 8
(d) a home for the aged; 9
(e) a hostel for the aged or infirm; 10
(f) another place prescribed by regulation to be an 11
institution. 12
issuing officer see section 12. 13
local government election means-- 14
(a) a quadrennial election; or 15
(b) a by-election; or 16
(c) a fresh election. 17
local government employee-- 18
(a) for the City of Brisbane--means a council employee 19
under the City of Brisbane Act 2010, schedule; or 20
(b) for another local government--means a local 21
government employee under the Local Government Act 22
2009, schedule 4. 23
mobile polling booth see section 46(3). 24
name, of a political party, means-- 25
(a) if the register of political parties includes an 26
abbreviation of the party's name--the abbreviation; or 27
(b) otherwise--the party's full name included in the 28
register. 29
Page 298
Local Government Electoral Bill 2011
Schedule
nomination day, for an election, means the day stated as the 1
nomination day for the election-- 2
(a) in a notice under section 25; or 3
(b) in a gazette notice under section 38. 4
nominee, for an election, means a person who has nominated 5
for election as a councillor at the election. 6
obstruct includes hinder and attempt to obstruct. 7
ordinary polling booth see section 46(2). 8
ordinary vote see section 67(1)(a). 9
ordinary voting hours means the hours between 8a.m. and 10
6p.m. on a day. 11
person acting on behalf of a candidate, for part 6, see section 12
106. 13
person acting on behalf of a group of candidates, for part 6, 14
see section 106. 15
place includes a vehicle. 16
political activity, for part 6, see section 106. 17
political party means an organisation or group whose object 18
or activity, or 1 of whose objects or activities, is the promotion 19
of the election of a candidate or candidates endorsed by it, or 20
by a body or organisation of which it forms a part, to an office 21
of councillor of a local government. 22
polling booth means-- 23
(a) an ordinary polling booth; or 24
(b) a mobile polling booth; or 25
(c) an early polling booth. 26
polling day, for an election, means the day-- 27
(a) stated in a notice under section 35; or 28
(b) fixed by notice under section 36; or 29
(c) fixed by a notice under section 38; or 30
(d) fixed by a notice under section 53. 31
Page 299
Local Government Electoral Bill 2011
Schedule
polling notice means the public notice given by a returning 1
officer, under section 35, that a poll will be conducted. 2
postal ballot election means an election for which the 3
Minister has directed, under section 45, that the poll be 4
conducted by postal ballot. 5
postal vote see section 67(1)(c). 6
postal voter means an elector who casts a postal vote in an 7
election. 8
preference vote, recorded on a ballot paper, means the number 9
2, or a higher number, written in a square opposite the name 10
of a candidate on the ballot paper. 11
pre-poll vote see section 67(1)(b). 12
presiding officer, for a polling booth, means the person who, 13
under section 11, is the presiding officer at the polling booth. 14
properly nominated, for an election, see section 31(3). 15
public office, of a local government, see the Local 16
Government Act 2009, schedule 4. 17
quadrennial election means the election of councillors for 18
local governments that is held in 2012, and every fourth year 19
after 2012. 20
register of political parties means the register of political 21
parties kept under the Electoral Act 1992. 22
registered industrial organisation, for part 6, see section 106. 23
registered officer, of a registered political party, see the 24
Electoral Act 1992, section 2. 25
registered political party see the Electoral Act 1992, section 26
2. 27
relevant details, for a gift, for part 6, see section 109. 28
returning officer, for an election, means a person appointed 29
under section 9 as returning officer for the election. 30
third party, for part 6, see section 123. 31
value, of a gift, for part 6, see section 106. 32
Page 300
Local Government Electoral Bill 2011
Schedule
voters roll, for an election, means the roll compiled by the 1
returning officer of persons entitled to vote at the election. 2
voting hours, for a mobile polling booth, means the hours 3
when electors may enter the booth to vote at an election. 4
© State of Queensland 2011
Page 301
AMENDMENTS TO BILL
Local Government Electoral Bill 2011
Local Government Electoral Bill 2011
Amendments agreed to during Consideration
1 Clause 50 (Declaration of early polling booths)
Page 48, line 16, `11 days'--
omit, insert--
`14 days'.
2 Clause 79 (Applications to cast postal votes in local
government elections that are not postal ballot elections)
Page 68, lines 25 and 26--
omit, insert--
``Ballot paper--(insert name of local government area)'.'.
3 Clause 80 (Distribution of ballot papers to electors for
postal ballot elections)
Page 69, lines 12 and 13--
omit, insert--
`the words `Ballot paper--(insert name of local government
area)';'.
4 Clause 81 (Applications to cast postal votes in postal
ballot elections)
Page 70, lines 24 and 25--
omit, insert--
``Ballot paper--(insert name of local government area)'.'.
Page 1
Local Government Electoral Bill 2011
5 Clause 82 (Distribution of ballot papers to particular
electors whose address has been omitted from a voters
roll)
Page 71, lines 11 and 12--
omit, insert--
`paper--(insert name of local government area)'.'.
6 Clause 99 (Returning officer's duty after counting votes)
Page 88, line 24, `(1)'--
omit.
7 Clause 99 (Returning officer's duty after counting votes)
Page 89, lines 5 to 14--
omit.
8 After clause 236 (Amendment of sch 2 (Dictionary))
Page 198, after line 7--
insert--
`Division 4A Amendment of Building Act 1975
relating to Pool Safety Council
`236A Act amended
This division amends the Building Act 1975.
`236B Amendment of s 246EK (Members)
Section 246EK(5)--
omit.
Page 2
Local Government Electoral Bill 2011
`236C Amendment of s 246EL (Appointment of deputy
members)
`(1) Section 246EL(1), `member, mentioned in section
246EK(3),'--
omit, insert--
`member'.
`(2) Section 246EL(2), `a member,'--
omit, insert--
`a member who is a representative of the department or
LGAQ,'.
`(3) Section 246EL(2), from `the member,'--
omit, insert--
`the member represents.'.
`236D Amendment of s 246EX (Presiding at meetings)
`Section 246EX--
insert--
`(2) If the chairperson is absent from a PSC meeting, but the
deputy chairperson is present, the deputy chairperson is to
preside.
`(3) If the chairperson and deputy chairperson are absent from a
PSC meeting, a member chosen by the members present at the
meeting is to preside.'.
`236E Insertion of new ch 11, pt 13
`Chapter 11--
insert--
`Part 13 Validation provision inserted
under the Local Government
Electoral Act 2011
Page 3
Local Government Electoral Bill 2011
`307 Validation of particular appointments to PSC
`(1) If, before the commencement of this section, the Minister
purportedly appointed a person as a deputy member, the
person is declared to always have been validly appointed as a
deputy member.
`(2) Anything done or omitted to be done by a person mentioned
in subsection (1) as a deputy member that would have been
valid and lawful under this Act had the person been validly
appointed is declared to always have been valid and lawful.
`(3) If, before the commencement of this section, the Minister
purportedly appointed a deputy member to be the deputy
chairperson of PSC, despite section 246EM(1) the deputy
member is declared to always have been validly appointed as
the deputy chairperson of PSC.
`(4) Anything done or omitted to be done by a deputy member
mentioned in subsection (3) as deputy chairperson of PSC that
would have been valid and lawful under this Act had the
deputy member been validly appointed is declared to always
have been valid and lawful.
`(5) To remove any doubt, it is declared that a quorum for a PSC
meeting can be, and could always have been, made up of any
combination of attendees if the number of attendees at the
meeting is, or was, more than half of the number of persons
appointed as members of PSC at the time of the meeting.
`(6) In this section--
attendee, for a PSC meeting, means--
(a) a member; or
(b) a deputy member, including a deputy member to whom
subsection (1) applies, acting for a member who is
absent from the PSC meeting.
deputy member means a deputy appointed under section
246EL(1) to act for a member.
member means a person appointed under section 246EK(1) as
a member of PSC.'.
Page 4
Local Government Electoral Bill 2011
`236F Amendment of sch 2 (Dictionary)
`Schedule 2--
insert--
`LGAQ means the LGAQ Ltd. under the Local Government
Act 2009, section 287(2).'.'.
9 After clause 240 (Insertion of new ch 3, pt 5)
Page 200, after line 22--
insert--
`240A Amendment of s 153 (Disqualification for certain
offences)
`Section 153(5)(a), `175,'--
omit.'.
10 After clause 242 (Amendment of s 166 (Filling a vacancy
in the office of another councillor))
Page 201, after line 8--
insert--
`242A Replacement of s 175 (Councillor's conflict of interest at
a meeting)
`Section 175--
omit, insert--
`175 Councillor's conflict of interest at a meeting
`(1) This section applies if a matter is to be discussed at a meeting
of the council, or any of its committees, and a councillor at the
meeting--
(a) has a conflict of interest in the matter (the real conflict
of interest); or
(b) could reasonably be taken to have a conflict of interest
in the matter (the perceived conflict of interest).
`(2) A conflict of interest is a conflict between--
Page 5
Local Government Electoral Bill 2011
(a) a councillor's personal interests; and
(b) the public interest;
that might lead to a decision that is contrary to the public
interest.
`(3) The councillor must deal with the real conflict of interest or
perceived conflict of interest in a transparent and accountable
way.
`(4) Without limiting subsection (3), the councillor must inform
the meeting of--
(a) the councillor's personal interests in the matter; and
(b) if the councillor participates in the meeting in relation to
the matter, how the councillor intends to deal with the
real or perceived conflict of interest.
`(5) Subsection (6) applies if a quorum at the meeting can not be
formed because the councillor proposes to exclude himself or
herself from the meeting to comply with subsection (3).
`(6) The councillor does not contravene subsection (3) by
participating (including by voting, for example) in the
meeting in relation to the matter if the attendance of the
councillor, together with any other required number of
councillors, forms a quorum for the meeting.
`(7) The following must be recorded in the minutes of the meeting,
and on the council's website--
(a) the name of the councillor who has the real or perceived
conflict of interest;
(b) the nature of the personal interests, as described by the
councillor;
(c) how the councillor dealt with the real or perceived
conflict of interest;
(d) if the councillor voted on the matter--how the
councillor voted on the matter;
(e) how the majority of persons who were entitled to vote at
the meeting voted on the matter.
Page 6
Local Government Electoral Bill 2011
`(8) For subsection (2), a councillor who is nominated by the
council to be a member of a board of a corporation or other
association does not have a personal interest merely because
of the nomination or subsequent appointment as the member.
`(9) To remove any doubt, it is declared that nonparticipation in
the meeting is not the only way the councillor may
appropriately deal with the real or perceived conflict of
interest in a transparent and accountable way.'.
`242B Amendment of s 178 (What this division is about)
`Section 178(3)(c), `176(2)'--
omit, insert--
`175(3), 175(4) or 176(2)'.
`242C Amendment of s 180 (Assessing complaints)
`Section 180(12), from `the record'--
omit, insert--
`the part of the record that relates to outcomes of written
complaints--
(a) at the council's public office; or
(b) on the council's website.'.
`242D Insertion of new s 180A
`After section 180--
insert--
`180A Preliminary dealings with complaints before hearing
`(1) This section applies if the chief executive officer refers a
complaint to the BCC councillor conduct review panel.
`(2) The BCC councillor conduct review panel may, without
conducting a hearing of the complaint, order the complaint, or
a part of the complaint, be dismissed or struck out if the panel
considers the complaint or part is--
Page 7
Local Government Electoral Bill 2011
(a) frivolous, vexatious or misconceived; or
(b) lacking in substance; or
(c) otherwise an abuse of process.
`(3) If the BCC councillor conduct review panel acts under
subsection (2), the panel must give written notice of the order
to the chief executive officer, the accused councillor and the
entity that made the complaint.'.
`242E Amendment of s 181 (Notifying councillor of the hearing
of a complaint)
`(1) Section 181(1)--
omit, insert--
`(1) At least 7 days before the hearing of a complaint by the BCC
councillor conduct review panel, the panel must give the
accused councillor a written notice about the hearing.'.
`(2) Section 181(3)--
omit.
`(3) Section 181(4)--
renumber as section 181(3).'.'.
11 After clause 260 (Insertion of new ch 3, pt 5)
Page 208, after line 15--
insert--
`260A Amendment of s 153 (Disqualification for certain
offences)
`Section 153(5)(a), `173,'--
omit.'.
12 After clause 264 (Amendment of s 166 (Filling a vacancy
in the office of another councillor))
Page 209, after line 15--
Page 8
Local Government Electoral Bill 2011
insert--
`264A Replacement of s 173 (Councillor's conflict of interest at
a meeting)
`Section 173--
omit, insert--
`173 Councillor's conflict of interest at a meeting
`(1) This section applies if a matter is to be discussed at a meeting
of a local government, or any of its committees, and a
councillor at the meeting--
(a) has a conflict of interest in the matter (the real conflict
of interest); or
(b) could reasonably be taken to have a conflict of interest
in the matter (the perceived conflict of interest).
`(2) A conflict of interest is a conflict between--
(a) a councillor's personal interests; and
(b) the public interest;
that might lead to a decision that is contrary to the public
interest.
`(3) The councillor must deal with the real conflict of interest or
perceived conflict of interest in a transparent and accountable
way.
`(4) Without limiting subsection (3), the councillor must inform
the meeting of--
(a) the councillor's personal interests in the matter; and
(b) if the councillor participates in the meeting in relation to
the matter, how the councillor intends to deal with the
real or perceived conflict of interest.
`(5) Subsection (6) applies if a quorum at the meeting can not be
formed because the councillor proposes to exclude himself or
herself from the meeting to comply with subsection (3).
`(6) The councillor does not contravene subsection (3) by
participating (including by voting, for example) in the
meeting in relation to the matter if the attendance of the
Page 9
Local Government Electoral Bill 2011
councillor, together with any other required number of
councillors, forms a quorum for the meeting.
`(7) The following must be recorded in the minutes of the meeting,
and on the local government's website--
(a) the name of the councillor who has the real or perceived
conflict of interest;
(b) the nature of the personal interest, as described by the
councillor;
(c) how the councillor dealt with the real or perceived
conflict of interest;
(d) if the councillor voted on the matter--how the
councillor voted on the matter;
(e) how the majority of persons who were entitled to vote at
the meeting voted on the matter.
`(8) For subsection (2), a councillor who is nominated by a local
government to be a member of a board of a corporation or
other association does not have a personal interest merely
because of the nomination or subsequent appointment as the
member.
`(9) To remove any doubt, it is declared that nonparticipation in
the meeting is not the only way the councillor may
appropriately deal with the real or perceived conflict of
interest in a transparent and accountable way.'.
`264B Amendment of s 176 (What this division is about)
`Section 176(3)(c), `171(3) or 174(2)'--
omit, insert--
`171(3), 173(3), 173(4) or 174(2)'.
`264C Amendment of s 177 (Assessing complaints)
`Section 177(12), `the record'--
omit, insert--
Page 10
Local Government Electoral Bill 2011
`the part of the record that relates to outcomes of written
complaints'.
`264D Insertion of new s 177A
`After section 177--
insert--
`177A Preliminary dealings with complaints before hearing
`(1) This section applies if the department's chief executive refers
a complaint of misconduct to a regional conduct review panel
or the tribunal.
`(2) The regional conduct review panel or the tribunal may,
without conducting a hearing of the complaint, order the
complaint, or a part of the complaint, be dismissed or struck
out if the panel or tribunal considers the complaint or part is--
(a) frivolous, vexatious or misconceived; or
(b) lacking in substance; or
(c) otherwise an abuse of process.
`(3) If the regional conduct review panel or the tribunal acts under
subsection (2), the panel or tribunal must give written notice
of the order to all the following--
(a) the chief executive officer (if any) who originally
assessed the complaint;
(b) the department's chief executive;
(c) the accused councillor;
(d) the entity that made the complaint.'.
`264E Amendment of s 178 (Notifying councillor of the hearing
of a complaint of misconduct)
`(1) Section 178(1) and (2)--
omit, insert--
`(1) At least 7 days before the hearing of a complaint of
misconduct by a regional conduct review panel or the tribunal,
Page 11
Local Government Electoral Bill 2011
the department's chief executive must give the accused
councillor a written notice about the hearing.'.
`(2) Section 178(4)--
omit.
`(3) Section 178(3) and (5)--
renumber as section 178(2) and (3).'.
13 After clause 269 (Insertion of new ch 9, pt 2, hdg)
Page 210, after line 19--
insert--
`269A Insertion of new ch 9, pt 3
`Chapter 9--
insert--
`Part 3 Transitional provision inserted
under the Local Government
Electoral Act 2011
`294 Continuation of particular local laws of Torres Strait
Island Regional Council
`(1) A prescribed local law in force immediately before 1 January
2012 continues in force until the earlier of the following--
(a) the local law's repeal by the Torres Strait Island
Regional Council;
(b) the end of 30 September 2012.
`(2) However, that Council may, by local law, amend a local law
continued under subsection (1) while it continues under that
subsection.
`(3) In this section--
prescribed local law means any of the following local laws--
(a) Badu Island Council By-Law No. 2 (Law and Order);
Page 12
Local Government Electoral Bill 2011
(b) Boigu Island Council By-Law No. 2 (Law and Order);
(c) Dauan Island Council By-Laws 1995;
(d) Erub Island Council By-Laws 1995;
(e) Hammond Island Council By-Law No. 2 (Law and
Order);
(f) Iama Island Council By-Law No. 2 (Law and Order);
(g) Kubin Island Council By-Law No. 2 (Law and Order);
(h) Mabuiag Island Council By-Laws 1995;
(i) Mer Island Council By-Laws 1995;
(j) Poruma Island Council By-Laws 1995;
(k) Saibai Island Council By-Laws 1997;
(l) St Pauls Island Council By-Laws 1995;
(m) Ugar Island Council By-Laws 1997;
(n) Warraber Island Council By-Laws 1997;
(o) Yorke Island Council By-Laws 1995.'.'.
© State of Queensland 2011
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