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1
Local Government Legislation Amendment
LOCAL GOVERNMENT LEGISLATION
AMENDMENT BILL 1995
EXPLANATORY NOTE
GENERAL OUTLINE
Objective of the Legislation
The Bill revises the legislation dealing with the establishment and
operation of superannuation schemes for councillors, employees and other
persons for whom local governments make contributions for
superannuation benefits.
The legislation affected is--
� Sections 23 and 25E of the City of Brisbane Act 1924 which deal
with the establishment of superannuation schemes for councillors
and employees of the Brisbane City Council;
� Section 186 of the Local Government Act 1993 which deals with
the establishment of or participation in superannuation schemes
by local governments (other than Brisbane City Council) for the
provision of superannuation benefits to councillors;
� The provisions of the Local Government Superannuation Act
1985.
Rather than amending the Local Government Superannuation Act 1985
the Bill provides for the new superannuation legislation for schemes
administered by the Queensland Local Government Superannuation Board
to be incorporated into the Local Government Act 1993.
The Bill also amends the Local Government Act 1993 for the following
purposes which do not relate to superannuation matters--
� To clarify that the Minister can impose conditions on the disposal
of certain land or goods when a local government makes
application for exemption from the public auction or tender
process;
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Local Government Legislation Amendment
� To remove the requirement for the proposed new local
governments of Cairns, Gold Coast and Ipswich City Councils to
meet the statutory obligations for the preparation of corporate and
operational plans for the financial year ending 30 June 1996.
The Bill also amends the Fire Service Act 1990 to remove certain
restrictions on local governments making and levying special rates or
charges for the purpose of contributing towards funding the operations of
Rural Fire Brigades.
Reasons for the Bill
1. Superannuation Related Matters
(a) Compliance with the Commonwealth's Superannuation Industry
(Supervision) Act 1993
The Superannuation Industry (Supervision) Act 1993 received assent on
30 November 1993. Regulations under the Act were made on 11 March
1994. The legislation covers a broad range of matters relating to the
operation and management of superannuation entities, including a
codification of the essential duties and obligations of trustees, custodians
and investment managers, restrictions on loans, borrowings and
investments, rules for equal trustee representation for employers and
employees, and standards for benefits and member communication.
The prudential measures are designed to ensure the trustees of
superannuation schemes manage the funds in the best interests of members.
Where any person breaches the relevant standards, the Commonwealth can
apply monetary and criminal penalties similar to Corporations Law
penalties.
To maintain a superannuation fund's entitlement to taxation concessions,
private sector schemes were to comply with the Commonwealth legislation
as from 1 July 1994 and public sector schemes are to comply as from 1
July 1995.
The Local Government Superannuation Act 1985 currently contains
certain regulatory provisions which do not enable the Queensland Local
Government Superannuation Board (as trustee) to comply with the
Commonwealth legislation. In this respect, the Commonwealth legislation
provides that the governing rules of a superannuation entity must not permit
the trustee to be subject, in the exercise of any of the trustee's powers under
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Local Government Legislation Amendment
those rules, to direction by any other person. Part of the rationale for this
provision of the Commonwealth legislation is that trustees should be given
the opportunity to act independently and responsibly, particularly, when
made personally subject to the accountability requirements under the Act.
Primarily, the provisions which currently conflict with the
Commonwealth legislation deal with certain matters requiring sanctioning
by the Governor in Council, e.g. appointment and remuneration of Board
members, investment arrangements, amendment of rules of schemes.
To enable the Board to comply with the Commonwealth legislation by
the due date, the Bill revises the legislation by removing offending
provisions.
Where unnecessary duplication of Commonwealth regulatory
requirements occur under the Act (e.g. submitting the annual report to the
Minister) those provisions have also been removed.
Similarly, the City of Brisbane Act 1924 and the Local Government Act
1993 contain provisions relating to the establishment and operation of
superannuation schemes which need to be revised to comply with the
Commonwealth legislation by the due date.
The Bill therefore provides for the necessary revision of the legislation.
(b) Consistency with the Local Government Act 1993
The Local Government Act 1993 introduces new definitions, terms and
references that supersede provisions in the Local Government
Superannuation Act 1985, e.g. "local authorities" are now known as "local
governments".
The Bill therefore updates the legislation for consistency with the
provisions of the Local Government Act 1993.
The Local Government Act 1993 also broadens the jurisdiction of local
governments and allows greater flexibility and autonomy in their operating
environment. For example, the enterprise powers under the Act enable a
local government to engage in an enterprise if it concerns a matter that is
directed to benefiting its area. For the purpose of exercising an enterprise
power, a local government can form, for example, a company limited by
shares that are not listed on a stock exchange.
In utilising these powers, cases will arise where the body exercising the
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Local Government Legislation Amendment
enterprise will be required to meet superannuation contributions under the
Commonwealth Superannuation Guarantee (Administration) Act 1992 on
behalf of its employees or directors (as the case may be). Such a body may
also wish to extend to employees or directors, superannuation benefits
above those required under the superannuation guarantee legislation.
As the operating environment in which local governments operate has
significantly changed under the Local Government Act 1993, the conditions
for bodies to participate in the scheme administered by the Queensland
Local Government Superannuation Board have been reviewed and extended
to also enable an entity prescribed by regulation which exclusively exercises
a local government power for a local government to be able to contribute to
the Local Government Superannuation Scheme.
(c) Absorbing the "Councillors' Scheme" into the "Employees'
Scheme"
Presently, the Queensland Local Government Superannuation Board
administers and acts as trustee of two superannuation schemes, namely:--
Local Government Employees' Superannuation Scheme (Employees'
Scheme)
� The Scheme provides for a defined benefit fund for permanent
employees of local government and an accumulation fund for
casual employees.
� The Local Government Superannuation Act 1985 provides the
legislative framework for the establishment of the scheme, the
contributions to the scheme, the constitution of the Board, the
Board's powers and eligibility for employees to join the scheme.
� It is compulsory for local governments to contribute to this
scheme for their employees.
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Local Government Legislation Amendment
Local Government (Relevant Persons) Plan (Councillors' Scheme)
� This is an accumulation scheme established by regulation under
the Local Government Superannuation Act 1985 specifically for
those councillors for whom a local government wishes to extend
superannuation benefits under the Local Government Act 1993.
The scheme is also for those contractors to local government who
are subject to the Commonwealth Superannuation Guarantee
(Administration) Act 1992.
� It is not compulsory for local governments to contribute to this
particular scheme for Superannuation Guarantee or Local
Government Act purposes. However, contributions are to be
made to a fund which complies with Commonwealth
Superannuation legislation.
As some councillors and contractors have private superannuation
schemes, local governments can choose to pay contributions to the person's
private scheme rather than the scheme administered by the Queensland
Local Government Superannuation Board.
It is considered desirable to rationalise the Board's management of
schemes for which it acts as trustee. The Bill therefore absorbs the
Councillors' Scheme into the Employees' Scheme. The management of
one scheme for councillors and employees will also result in administrative
savings for the Board.
(d) General updating and removal of redundant or offending
provisions
Many provisions in the Local Government Superannuation Act 1985 are
no longer applicable, have become redundant, potentially offend the Anti-
Discrimination Act 1991 or are more appropriately dealt with in the trust
deed of the scheme.
The Bill therefore revises the provisions to conform with contemporary
superannuation arrangements.
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Local Government Legislation Amendment
2. Other Matters
(a) Disposal of Land and Goods
The Local Government Act 1993 (section 405) provides that a local
government can dispose of land and also goods (with an apparent value of
at least $1000) by public auction or through a competitive tendering
process.
Where a local government does not wish to hold an auction or call for
tenders, it can apply for exemption from the Minister (under section 406).
As the provisions currently stand, it is unclear as to whether the Minister
can grant the exemption subject to conditions, e.g. where the disposal is
proposed to be to a specific charitable organisation, a condition could be
imposed to ensure only that charitable organisation could be the recipient of
the goods or land (as the case may be).
To put the intent of the provisions beyond doubt, it is proposed to clarify
that an exemption can be given by the Minister subject to conditions.
(b) Suspension of Corporate and Operational Planning Requirements
The Local Government Act 1993 requires local governments to prepare
and adopt a corporate plan and an operational plan for the financial year
commencing 1 July 1995 and for each financial year thereafter.
In this respect, the operational plan must address the methods by which
the objectives of the corporate plan are to be achieved.
The elections for the proposed new local governments of Cairns, Gold
Coast and Ipswich City Councils are to be conducted on 11 March 1995.
In view of the extensive arrangements which must occur to implement
the transition to the new local governments, it is considered appropriate to
exempt these local governments from the statutory requirements relating to
the preparation of corporate and operations plans for the 1995/96 financial
year.
Provision has also been made in the Bill to enable any future exemptions
to be provided for in the regulation implementing the recommendations of
the Local Government Commissioner on reviewable local government
matters.
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Local Government Legislation Amendment
(c) Funding for Rural Fire Brigades
The Fire Service Act 1990 enables a local government to make and levy a
special rate or charge (i.e. a rate or charge on certain parcels of rateable land)
or a separate rate or charge (i.e. a rate or charge on all rateable land in its
area) for the purpose of contributing towards funding rural fire brigades.
However, the Act limits the making and levying of special rates or charges
to land which a local government considers to be rural residential land.
Difficulties are being experienced by some local governments when
determining which parcels of land are rural residential. Certain parcels of
land which are serviced by a rural fire brigade are also not leviable by a
special rate or charge as it is not considered rural residential land, e.g. certain
urban style townships in rural areas.
To relieve the problems being experienced, the Bill provides for the
removal of the limitation placed on local governments in relation to making
and levying special rates or charges on rural residential land. This will
enable such rates or charges to be levied on all parcels of rateable land
serviced by a rural fire brigade.
However, cases will arise where a local government has within its area
parcels of rateable land which are subject to a levy for funding an urban fire
brigade. In such cases, it would be inappropriate to levy a separate rate or
charge to provide funding for a rural fire brigade on those properties subject
to the urban fire levy. In the same vein, a special rate or charge should not
be applied to a property subject to an urban fire levy.
Estimated Cost for Government Implementation
There are no additional costs incurred by the Government. Minor
administrative savings will occur as a result of the removal of certain
regulatory provisions in the Local Government Superannuation Act 1985
for compliance with the Commonwealth Superannuation Industry
(Supervision) Act 1993.
In this respect, certain functions currently performed by the Governor in
Council will no longer be exercised under the proposed legislation. These
type of regulatory requirements are provided for in the Commonwealth
legislation.
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Local Government Legislation Amendment
Consultation
The following organisations were consulted during the preparation of the
Bill--
� Queensland Local Government Superannuation Board
� Queensland Audit Office
� Local Government Association of Queensland (Inc.)
� Australian Workers' Union
� Australian Services Union
� Brisbane City Council
With the exception of the Local Government Association, all parties have
no objection to the proposed Bill.
The Local Government Association acknowledges the need for
superannuation schemes for the local government sector to comply with the
Commonwealth legislation as from 1 July 1995. However, the Association
is seeking the repeal of the legislation providing for any State Government
control over the operation of superannuation schemes administered by the
Queensland Local Government Superannuation Board for the local
government sector.
In particular, the Association would like to have removed those
provisions in the legislation which specify employer contributions into the
Scheme. The Association considers that the Board should determine the
levels of employer contributions.
As the scheme provides superannuation benefits primarily to employees,
the views of the Association as the representative of employers must be
balanced by the views of employee organisations. As the Association does
not have the support of the Australian Workers' Union and the Australian
Services Union on its proposal, the legislation is being retained.
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Local Government Legislation Amendment
NOTES ON PROVISIONS
PART 1--PRELIMINARY
Clause 1 sets out the short title of the Act.
Clause 2 provides for the commencement of the Act. Those provisions
of the Bill which will aid the transition of the legislation for compliance with
the Commonwealth Superannuation Industry (Supervision) Act 1993 will
commence on Royal Assent as well as the non-superannuation related
amendments to the Local Government Act 1993 and the Fire Service Act
1990. In order to comply with the Commonwealth legislation as from 1
July 1995, the revised legislation providing for local government
superannuation will commence on 1 July 1995.
PART 2--AMENDMENT OF CITY OF BRISBANE
ACT 1924
Clause 3 provides for the amendment of the City of Brisbane Act 1924.
Clause 4 updates section 23 to ensure compliance with the
Commonwealth Superannuation Industry (Supervision) Act 1993 as from 1
July 1995.
Section 23 currently enables the Brisbane City Council, with the approval
of the Governor in Council, to establish and vary a superannuation scheme
for its councillors. Any rules made by the Council for the scheme also
require approval by the Governor in Council to come into effect.
The clause revises the provisions by removing the requirements for
Governor in Council approval.
Clause 5 updates section 25E to ensure compliance with the
Commonwealth Superannuation Industry (Supervision) Act 1993 as from 1
July 1995.
Section 25E currently enables the Brisbane City Council, with the
approval of the Governor in Council to establish, maintain and amend any
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Local Government Legislation Amendment
superannuation scheme for its employees.
The clause revises the provisions by removing the requirement for
Governor in Council approval.
PART 3--AMENDMENT OF FIRE SERVICE ACT 1990
Clause 6 provides for the amendment of the Fire Service Act 1990.
Clause 7 removes the restriction on local governments being able to
make and levy special rates or charges only on rural residential properties
for funding of contributions to the operations of rural fire brigades. As a
result of the amendment in the clause, a local government will be able to
make and levy a special rate or charge (i.e. a rate or charge on certain parcels
of rateable land) or a separate rate or charge (i.e. a rate or charge on all
rateable land in its area) for the purpose of contributing towards funding
rural fire brigades. This will enable such rates or charges to be levied on all
parcels of rateable land serviced by a rural fire brigade.
However, cases will arise where a local government has within its area
parcels of rateable land which are subject to a levy for funding an urban fire
brigade. In such cases, it would be inappropriate to levy a separate rate or
charge to provide funding for a rural fire brigade on those properties subject
to the urban fire levy. In the same vein, a special rate or charge should not
be applied to a property subject to an urban fire levy.
PART 4--AMENDMENT OF LOCAL GOVERNMENT
ACT 1993
Clause 8 provides for the amendment of the Local Government Act
1993.
Clause 9 provides for a general regulation making power which will
enable an exemption from the requirement to prepare a corporate and
operational plan to be given to a local government when facilitating the
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Local Government Legislation Amendment
implementation of recommendations of the Local Government
Commissioner on reviewable local government matters.
Clause 10 clarifies section 186 and also updates the section for
compliance with the Commonwealth Superannuation Industry
(Supervision) Act 1993 as from 1 July 1995.
Section 186 of the Local Government Act 1993 provides a discretion for
a local government to establish or take part in a superannuation scheme for
the benefit of its councillors. Where a local government establishes a
scheme it must make rules for the scheme which comply with the
Commonwealth Occupational Superannuation Standards Act 1987 (the
requirements of which are now provided for by the Superannuation
Industry (Supervision) Act 1993). The rules are also required to be approved
by the Governor in Council.
To accord with the Commonwealth legislation, the clause removes the
provisions relating to approval of rules by the Governor in Council. The
clause also revises the section to make its intention clear with respect to the
levels of contribution which a local government can make in relation to its
councillors.
In respect of this latter point, an equity measure has previously been
applied in the section to limit the level of employer subsidised
superannuation contribution for councillors to that applicable for employees.
The section has therefore been revised to ensure that local governments are
not empowered to make levels of superannuation contributions (expressed
as a percentage of payment in the nature of salary) on behalf of councillors
which are greater than the levels payable on behalf of a standard permanent
employee (as defined in clause 12) of a local government who personally
contributes 6% of salary for membership of the scheme.
For example, for the financial year commencing 1 July 1997, a local
government is liable to contribute 12% of a standard permanent employee's
salary into the scheme (i.e. 18% minus the 6% recouped from the
employee). For the same financial year, a local government could only
contribute up to 12% for councillors.
At the same time, the section further provides that the proportion of
contribution payable by the local government for a councillor cannot be
more or less than the proportion of contribution payable for a standard
permanent employee.
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Local Government Legislation Amendment
For example, for the financial year commencing 1 July 1997 the total
contribution for an employee is 18% of salary. The local government's
proportion is 12% and the standard permanent employee's proportion is
6%. A ratio of 12:6 therefore exists for these employees with the local
government contributing two thirds of the total contribution. Under the
provisions, a local government can therefore contribute any lesser
percentage of contribution as long as the proportion of employer to
employee contribution is not disrupted, that is, for example, ratios of 12:6,
9:4.5, 6:3 could apply in respect of contributions to be made by the local
government and the councillor. In all of these cases, the local government
would contribute two thirds of the total contribution and the councillor
would contribute one third. The proportion has therefore not changed.
Clause 11 clarifies that the Minister can impose conditions on the
disposal of certain land and goods when a local government makes
application for exemption from the public auction or tender process.
Clause 12 inserts a new "Chapter 12A--Superannuation" into the local
Government Act 1993. The new Chapter will supersede the provisions of
the Local Government Superannuation Act 1985 as from 1 July 1995.
Explanation of the provisions of the Chapter is as follows--
CHAPTER 12A--SUPERANNUATION
PART 1--INTERPRETATION
Section 743A provides for the meaning of various terms.
Section 743B provides for the meaning of permanent employee for the
purpose of an employee making contributions to the Local Government
Superannuation Scheme.
Generally, when an employee of a Council becomes a "permanent
employee" he/she then becomes a contributory member to the Scheme and
attracts the Council contributions required for defined benefit purposes.
An employee of a "local government entity" (as defined) cannot elect to
become a "permanent employee" unless with the consent of the "local
government entity".
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Local Government Legislation Amendment
If an employee is not a "permanent employee" he/she would continue to
be a "non-contributory member" (as defined). In such cases, the employer
would only need to pay those contributions required under an industrial
arrangement or an Act (e.g. Superannuation Guarantee payments) on behalf
of the employee.
PART 2--QUEENSLAND LOCAL GOVERNMENT
SUPERANNUATION BOARD
Division 1--Establishment, functions and powers of Board
Section 743C provides for the continuance of the Queensland Local
Government Superannuation Board as a result of the repeal of the Local
Government Superannuation Act 1985.
Section 743D provides for the statutory incorporation of the Board.
Section 743E specifies the broad functions of the Board. In this respect,
the Board is responsible for trusteeship of the continued Local Government
Superannuation Scheme which primarily provides for superannuation
benefits for employees and councillors of local governments.
The Board may, with the approval of the Governor in Council, also
manage another superannuation scheme on behalf of its trustees, e.g. a
scheme established by a local government and for which the Board does not
act as trustee.
The Board may, with the approval of the Governor in Council, also act as
trustee or establish and act as trustee of another superannuation scheme for
persons working for or providing a service to a local government and who
are not eligible for membership of the Local Government Superannuation
Scheme.
Section 743F specifies the Board's powers in carrying out its functions.
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Local Government Legislation Amendment
Division 2--Board of directors
Section 743G provides for the establishment of a board of directors of
the Board. In this respect, the board is trustee of the Local Government
Superannuation Scheme.
Section 743H provides for the role of the board of directors.
Section 743I specifies the composition of the board of directors. In
accordance with the Commonwealth Superannuation Industry
(Supervision) Act 1994 the Board is to comprise of equal employer and
employee representation. Provision has also been made for the directors to
make arrangements for the appointment of an independent director, if they
so wish.
Division 3--General
Section 743J enables the Board to delegate its powers to an employee of
the Board, e.g., the Secretary.
PART 3--LOCAL GOVERNMENT
SUPERANNUATION SCHEME
Division 1--Continuation and membership of scheme
Section 743K provides for the continuation of the "Local Government
Employees' Superannuation Scheme" as the "Local Government
Superannuation Scheme".
The term "Employees' " is being removed from the name as a result of
the absorption of the "Councillors' Scheme" into the "Employees'
Scheme".
The rules of the Scheme will no longer require the approval of the
Governor in Council by regulation but must be made in accordance with the
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Local Government Legislation Amendment
Commonwealth Superannuation Industry (Supervision) Act 1993.
Section 743L specifies those categories of people who are eligible for
membership or who must be members of the Scheme.
Division 2--Contributions for permanent employees
Section 743M specifies the rates of compulsory annual employer
contributions into the Scheme for those employees who make the statutory
contributions under section 743N.
In this respect, the employer makes both the employer and employee
contributions to the Scheme and later recoups the employee contribution
from the employee.
Section 743N specifies the rates of employee contributions for
membership of the Scheme.
Section 743O enables a member of the Scheme or a local government on
behalf of a member to make additional contributions to the Scheme above
the compulsory contributions specified under sections 743M and 743N.
However, in the case of councillors, the contributions by a local government
are limited to those allowable under section 186 (see clause 10).
Section 743P enables a local government to recoup from an employee's
salary, the amount of employee contribution already paid to the Scheme
under section 743M by the employer.
Section 743Q provides the mechanism for the readjustment of the
amount of employer and employee contributions to the Scheme where an
employee's salary has changed.
Division 3--Contributions for non-contributory members
Section 743R makes it compulsory for local governments to contribute
superannuation payments required under State or Commonwealth
legislation or an Industrial Agreement or Award, into the Scheme on behalf
of employees who do not make personal contributions to the Scheme e.g.,
to fulfil a local government's obligations under the Commonwealth
Superannuation Guarantee (Administration) Act 1992.
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Local Government Legislation Amendment
Local government entities must also contribute to the Scheme where an
industrial agreement or award requires them to do so.
Division 4--General
Section 743S enables the Board to recoup (if it wishes) interest on
outstanding contributions owing by a local government at a rate prescribed
by regulation (currently 14% per annum under the Local Government
Superannuation Regulation 1992).
PART 4--MISCELLANEOUS
Section 743T constrains local governments (excluding local government
entities) from establishing superannuation schemes for its employees. In
this respect, it is considered all employees of local governments should be
members of the Local Government Superannuation Scheme, particularly, in
order to sustain accrued defined benefits.
Section 743U enables the Board, with the approval of the Governor in
Council, to manage other superannuation schemes for boards of trustees.
For example, a scheme established by a local government for its councillors
and for which the Board does not act as trustee.
Section 743V enables the Board, with the approval of the Governor in
Council, to act as trustee or establish and act as trustee of a scheme for
persons who work for or provide a service to a local government and who
are not eligible for membership of the Local Government Superannuation
Scheme.
Section 743W provides that the Auditor-General is responsible for
auditing schemes for which the Board acts as trustee.
Section 743X enables the Board to apply the provisions of the legislation,
with any practical variations, in relation to providing its employees with
superannuation benefits. In this respect, the Board's employees are also
members of the Local Government Superannuation Scheme. As the Board
is not a "local government" for the purposes of the legislation, full
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Local Government Legislation Amendment
application of the provisions would not be practicable.
Clause 13 provides for the removal of the requirement for the proposed
new local governments of Cairns, Gold Coast and Ipswich City Councils to
meet the statutory obligations for the preparation of corporate and
operational plans for the financial year ending 30 June 1996.
As a result, the budget for the 1995/96 financial year will not be required
to be based on the corporate and operational plan. Also, the annual report
for the 1995/96 financial year will not have to address the respective
Council's performance against the corporate and operational plan.
Clause 14 provides the necessary transitional and savings provisions
for--
� Meeting compliance with the Commonwealth Superannuation
Industry (Supervision) Act 1993;
� Absorbing the "Councillors' Scheme" into the "Employees'
Scheme";
� Facilitating the repeal of the Local Government Superannuation
Act 1985 the provisions of which will be superseded by "Chapter
12A--Superannuation" at clause 12 of the Bill.
Clause 15 enables the making of transitional regulations for facilitating
the transition from the operation of the Local Government Superannuation
Act 1985 to the operation of "Chapter 12A--Superannuation" at clause 12
of the Bill.
PART 5--AMENDMENT OF LOCAL GOVERNMENT
SUPERANNUATION ACT 1985
Clause 16 provides for amendment of the Local Government
Superannuation Act 1985 (which will be repealed as from 1 July 1995).
Clause 17 provides for amendments to the Local Government
Superannuation Act 1985 (which commence on Royal Assent) which
enable the current Board to make the necessary arrangements prior to 1 July
1995 to meet compliance with the Commonwealth Superannuation
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Local Government Legislation Amendment
Industry (Supervision) Act 1993 as from that date. In this respect, the
provisions enable the following to occur--
� the current Board to make the new trust deed for the Local
Government Superannuation Scheme which complies with the
Commonwealth legislation and which will commence as from 1
July 1995;
� the current Board to make the appropriate arrangements for the
nomination and appointment of the new directors of the board;
� the reconstituted Board to commence as from 1 July 1995 at
which time the members as previously appointed by the
Governor in Council will cease to hold office.
Clause 18 provides for the repeal of the Local Government
Superannuation Act 1985 and any subsequent Amendment Acts, as from 1
July 1995.
� The State of Queensland 1995