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1
Local Government Legislation Amendment
LOCAL GOVERNMENT LEGISLATION
AMENDMENT BILL 1996
EXPLANATORY NOTES*
GENERAL OUTLINE
Objectives of the Bill
The objectives of the Bill are to amend the Local Government Act 1993
and the City of Brisbane Act 1924 as follows--
(a) to replace the review process conducted by a full-time Local
Government Commissioner with a review process conducted by
the Electoral Commissioner assisted by Review Commissioners
appointed by the Governor in Council, as and when the need
arises;
(b) to replace the current process for the redistribution of ward
boundaries of the City of Brisbane with the new review process
for local government electoral arrangements under the Local
Government Act 1993;
(c) to commence the application of national competition policy
reforms to local government;
(d) to clarify and improve the workability of aspects of the
procedures for conducting local government elections;
(e) to enable the Minister to grant exemptions to certain local
governments from the requirement to develop and administer
equal employment opportunity management plans;
(f) to fix the date of the next triennial elections at 15 March 1997 and
* These Explanatory Notes relate to the Bill as introduced into the Legislative
Assembly. This Bill was amended in Committee--see Endnotes.
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Local Government Legislation Amendment
provide for a regulation making power to fix a different date for
future triennial elections in Brisbane;
(g) to provide for the Shire of Rosalie to become undivided for the
purpose of conducting the 1997 elections;
(h) to extend the time by which local governments must review their
local laws;
(i) to reinforce that local law policies bind the community;
(j) to clarify certain superannuation arrangements for senior
executives in local government;
(k) to validate and provide for certain local government water billing
arrangements;
(l) to clarify or provide greater flexibility in relation to certain local
government rating and charging powers;
(m) to clarify a person's obligation to identify their endorsement by a
registered political party when nominating as a candidate in an
election; and
(n) to extend certain sunset provisions.
Reasons for and Achievement of the Policy Objectives
Local Government Electoral and Boundaries Review
The Office of the Local Government Commissioner was established on 1
July 1992 by amendments to the (now repealed) Local Government Act
1936 which have been carried forward into the Local Government Act 1993.
The Act provides for the Local Government Commissioner to be
appointed on a full time basis and for the Office to be attached to the
Electoral Commission of Queensland (ECQ) which is part of the
Department of Justice. The ECQ is responsible for ensuring the
Commissioner has the necessary resources to effectively and efficiently
carry out this function.
Acting on referrals from the Local Government Minister, the
Commissioner is responsible for conducting reviews on matters dealing
with the external boundaries of local government areas and electoral
arrangements.
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Local Government Legislation Amendment
The cost of running a full-time Office, the declining work load and the
tight budgetary situation have prompted the need to develop a revised set of
procedures for dealing with changes to local government external
boundaries and electoral arrangements.
The Bill establishes a comprehensive process for local government
electoral and boundaries review that strengthens the independence of the
reviews and lifts the standard for community input to these decisions.
Under the new process the Electoral Commissioner of Queensland will
be responsible for conducting reviews of local government external
boundaries and electoral arrangements.
The Electoral Commissioner will be assisted in the review process by
suitably qualified Review Commissioners appointed by the Governor in
Council and who can be selected by the Electoral Commissioner to assist in
any reviews.
When the Minister makes a reference for a review, a Local Government
Electoral and Boundaries Review Commission will be constituted
comprising the Electoral Commissioner and, if applicable, those other
Review Commissioners assisting with the review process.
Another fundamental change from the current provisions of the Local
Government Act 1993 is that a Local Government Electoral and Boundaries
Review Commission does not make recommendations to the Minister on
whether or not a change should be made. The Commission makes the final
determination which must then be implemented by regulation.
The Government cannot reject a commission's fundamental
determination, for example to change an external boundary or the existing
electoral arrangements of a council.
This is consistent with the decision making powers of the Queensland
Electoral Commission in relation to a redistribution of State electoral
districts. It provides the highest possible level of independence to ensure
there is public confidence in the way these matters are handled.
To implement a Coalition policy commitment that amalgamations of
local government areas can take place only when a majority in each local
government vote for the amalgamation in a referendum, the Bill also
requires a referendum to be held to decide if a Commission proposal
involving amalgamation or the creation or abolition of a local government
area should proceed.
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Local Government Legislation Amendment
In these cases, the outcome of the referendum determines whether a
proposal for the creation, amalgamation or abolition of a local government
area is implemented.
In other cases where a major adjustment of local government boundaries
is proposed, the Commission will have discretion to direct that a
referendum of affected electors be held in order to gauge opinion.
It is also necessary to provide for a mechanism for very minor change of
local government boundaries and electoral arrangements and in particular
where anomalies occur (eg. as a result of a property being split by a local
government boundary).
To provide for consistency with other local governments and to
rationalise complexities associated with having two systems of review of
electoral divisions, the new system for review of electoral divisions will also
apply to the ward boundaries within the City of Brisbane.
The Bill sets out the process and is very similar to that currently provided
under the City of Brisbane Act 1924. It guarantees that the redistribution of
Brisbane's wards for a triennial election will be conducted independently
and that elections will be based on fair boundaries.
National Competition Policy--Applying Competitive Neutrality to Local
Government
The Competition Principles Agreement is a component of National
Competition Policy (NCP), adopted by the Commonwealth, States and
Territories on 11 April 1995. The Agreement required the States to issue a
policy statement on the application of national competition policy (including
competitive neutrality principles) to local government by June 1996.
In July 1996, the State Government issued its policy statement which
was developed in conjunction with a State/Local Government working
group on NCP and after a public consultation phase. The policy statement
outlines the application of the competitive neutrality reforms to local
government in Queensland.
These reforms are limited to the business activities of local government,
that is, activities involving trade in goods or services and not social and
regulatory activities. They will only apply to "significant" business
activities which have a current annual expenditure in excess of $5 million in
1992/93 terms (classified as type 1 and type 2 business activities).
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Local Government Legislation Amendment
The policy statement identified seventeen local governments with
significant business activities that are above these thresholds.
The Bill applies the first stage of the policy statement to local government
in Queensland. Because of the extent of the reforms, the application of the
competitive neutrality reforms will occur over a number of stages.
The seventeen local governments identified in the policy statement as
having significant business activities are required to undertake public benefit
assessments in accordance with prescribed standards to determine the
appropriateness of applying the reforms.
In particular, the local governments will have to determine whether the
costs outweigh the benefits of either corporatising, commercialising or
applying full cost pricing to the nominated activities.
Miscellaneous Amendments
Revision of Election Procedures.
The Department of Local Government and Planning has undertaken an
evaluation of the local government election procedures used for the first
time to conduct the 1994 triennial local government elections. As a result,
the Bill includes a number of legislative amendments to clarify and provide
added flexibility in conducting elections. Several of the amendments also
provide for greater consistency with provisions under the Electoral Act
1992.
EEO Management Plans.
The Local Government Amendment Regulation (No.3) 1995 provided for
the development and administration of Equal Employment Opportunity
(EEO) Management Plans by local governments.
The Bill includes a provision to exempt a local government from
complying with the regulation where there is sound justification. A
regulation may prescribe criteria for deciding whether a local government
should be exempt. For example, there might be a local government that has
so few employees that the ongoing implementation of an EEO
Management Plan is unlikely to achieve any lasting change/benefit. In
particular, a joint local government such as a library board may employ only
two or three people while another may not employ any permanent staff.
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Local Government Legislation Amendment
Date for Triennial Elections in Brisbane
The City of Brisbane Act 1924 and the Local Government Act 1993
provide that the day for triennial elections is the last Saturday in March. In
1997 this will fall during the Easter school holiday period.
The polling day for the 1997 triennial local government elections will be
changed to 15 March and a regulation fixing this date will be made under
the Local Government Act 1993 for all Councils other than Brisbane.
An amendment to the City of Brisbane Act 1924 is essential to allow a
regulation to be made to bring the polling day for Brisbane into line with
other local government elections.
Electoral Arrangements for Rosalie Shire
In accordance with the requirements of the Act, the matter of the electoral
divisions in the Shire of Rosalie was referred to the Local Government
Commissioner for examination, recommendation and report.
The Minister rejected the recommendation contained in the Report.
However, in the time available before the next local government elections, it
was not possible to issue a fresh reference to the Commissioner.
Therefore, to ensure that the Shire's electoral arrangements comply with
the tolerance requirements under the Act in time for the 1997 elections, it is
necessary to legislate for the Shire to become undivided.
Extension of Local Laws Review.
Under the Local Government Act 1993, all local governments are to
review their local laws for redundant provisions by 25 March 1997.
The State Government's policy statement of application of national
competition policy to local government requires all existing local laws with
anti-competitive provisions to be reviewed by June 1999.
To enable local governments to complete only one major review of their
local laws, the Bill provides local governments with the option to collapse
both reviews into one process by extending the deadline for completion of
the local law review to 30 June 1999.
Effect of Local Law Policies
There has been uncertainty as to whether a local law policy made by a
local government binds the community. The provisions of the Bill are
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Local Government Legislation Amendment
designed to clarify that this is so.
Superannuation Arrangements.
The Local Government Act 1993 contains provisions relating to the
establishment and operation of the Queensland Local Government
Superannuation Board and the Local Government Superannuation Scheme.
The Bill amends the Act to clarify that senior executive employees may
utilise salary sacrifice arrangements for superannuation under agreement
with their employers.
Water Billing Validation
The Livingstone Shire Council levied a base charge for water in 1993/94
($520 for domestic users) along with an excess charge ($1 per kilolitre used
above 520 kilolitre). This was intended to apply from 1 July 1993 to the
date of a meter reading in April 1994, but neither the budget resolution nor
the wording on the rate notice made this clear.
The Council then charged on a usage basis at the rate of $1 per kilolitre
for the period from April 1994 to July 1994 and for subsequent three
monthly periods with a minimum charge of $390 per financial year. This
process resulted in an argument that charges were levied twice in respect of
the period from the meter reading in April 1994 to 30 June 1994.
The State Ombudsman recommended that the Livingstone Shire Council
make a refund to each user for the amount apparently charged twice. If the
Council was to make this refund and still balance its budget, it would have
to raise additional revenue equal to the amount refunded plus any
administrative costs.
The effect on a person who was a ratepayer at the time of the charge and
is still a ratepayer is likely to be a refund largely offset by an additional levy.
Ratepayers who have since sold their properties would gain by receiving a
refund (if they could be identified) while those who have brought properties
would pay the additional levy and receive no refund.
Because of the complexity over the issue of refunds and as most
ratepayers would have paid the same amount or a lower amount than if
there had been no change in 1993/94 to the Council's charging scheme, the
Bill validates the charges made in that year.
Levy and Recovery of Rates and Charges
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Local Government Legislation Amendment
The Local Government Act 1993 authorises local governments to make
and levy a utility charge for supplying water, gas, sewerage services or
cleansing services.
Most local governments that use water meters charge for water usage on
the basis of charging periods which do not coincide with the financial year.
Legal advice received from the Ombudsman and the Local Government
Association indicates such a charge is not in accordance with the Act which
only allows a charge "for a financial year".
It is not possible for local governments to read all meters at 30 June each
year.
With the transition of more local governments to user pays systems it is
increasingly important that they are given the flexibility to adopt varying
charging procedures appropriate to their local circumstances.
Therefore, the Bill allows local governments specific options in setting
volume based utility charges at their budget meetings. The changes
proposed will allow local governments to set charges for periods which do
not coincide with the financial year.
The Bill also amends certain provisions dealing with interest accrued on
unpaid rates, the payment of overdue rates and incentives for the early
payment of rates in order to clarify the original intent of the provisions.
Nomination by a Political Party to Fill a Vacancy
The Bill clarifies that a registered political party can only nominate a
person to fill a vacancy if the vacating councillor at the time of candidature
had been nominated by a registered officer of a political party on the
nomination form for candidature as a Councillor.
The amendment is designed to address the consequence of a recent
decision by the Court of Appeal in relation to the filling of a vacancy on the
Townsville City Council but does not interfere with the Court's decision in
the case of the Townsville City Council.
Sunset Clauses
The Local Government Act 1993 enables a local government to make a
local law giving an authorised person authority to enter a place, including a
structure used for residential purposes, to seize a dangerous dog. The
provision was included to give local governments specific assistance with
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Local Government Legislation Amendment
the control of dangerous dogs.
The provisions include a sunset clause which provides for them to expire
2 years after commencement on 10 March 1997. This was done to enable
the use of the provisions to be monitored and an evaluation of their
operation undertaken The Bill extends the expiry date by approximately 15
months pending the completion of an evaluation of the provisions.
The Local Government Act 1993 retained provisions (from the repealed
Local Government Act 1936) relating to the control of levee banks by local
governments through the making of local laws. The Act also includes an
appeal mechanism (to the Chief Executive of the Department of Natural
Resources) against decisions made by local governments in relation to
applications for the construction of levee banks.
The provisions were temporarily retained as natural resource
management legislation was expected to incorporate new provisions dealing
with levee banks. The provisions are being extended for a period of 2 years
to accommodate the development of proposed natural resource management
legislation. If it is proposed that local law controls are to be retained, the
extension will also enable local governments to have sufficient time to
introduce appropriate local laws.
Alternatives to the Bill
Local Government Electoral and Boundaries Review
An alternative option was considered which would allow the term of
appointment of the Local Government Commissioner to run its course until
30 June 1997 and have amending legislation to the replace the Office of
Local Government Commissioner (OLGC) commence from that date.
However, given the declining workload of the OLGC, a more cost
effective alternative was considered desirable. The Bill repeals the relevant
provisions under the Local Government Act 1993 which replaces the
existing review process with a new framework for review.
National Competition Policy--Applying Competitive Neutrality to Local
Government
Local Governments are required to undertake public benefit assessments
this financial year on whether to corporatise, commercialise or apply full
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Local Government Legislation Amendment
cost pricing, require statutory guidance to initiate these reforms. Any delay
in the proposed legislation could jeopardise the implementation of the
national competition policy reforms in accordance with the timetable in the
State Government's policy statement.
Miscellaneous Amendments
Revision of Election Procedures.
Extensive consultation was carried out with returning officers, elected
members of local government and peak body organisations following the
conduct of the 1994 triennial local government elections and subsequent
fresh elections. The proposed amendments were developed as a result of
the experience gained using the present procedures and identifying where
adjustment was needed for conducting the next triennial elections in 1997.
Date for Triennial Elections in Brisbane
There is no alternative to fixing a new date for the 1997 triennial elections
in Brisbane if its polling day is to be the same as for all other local
governments. The regulation making power will provide added flexibility
in future and bring its procedures into line with those under the Local
Government Act 1993.
Sunset Clauses
Should the sunset dates not be extended, local governments will be
unable to continue to administer local laws dealing with these issues after 15
March 1997. In particular, there would be public concern if local
governments were unable to react immediately to potentially dangerous
situations in relation to vicious dogs.
Should local governments not be able to continue controlling the
construction and maintenance of levee banks, a regulatory vacuum would
exist until the introduction of relevant provisions in other legislation.
Levy and Recovery of Rates
Should the proposed amendments in relation to volume based utility
charges not be enacted, local governments will be utilising charging regimes
that could be open to legal challenge.
The State Ombudsman recommended Livingstone Shire Council refund
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Local Government Legislation Amendment
the amounts perceived to be double charged for water usage in 1993/94.
Making refunds would be an expensive process and have little impact on the
majority of ratepayers as it would be necessary for the council to raise an
additional amount to cover the costs of the refund, including the
administrative costs. If the validating legislation is enacted such refunds
would be unnecessary.
Electoral Arrangements for Rosalie Shire
If the Rosalie Shire's current electoral arrangements were retained, the
1997 council elections would be contested on divisions which do not meet
the "one vote-one value" principle under the Act.
Administrative Costs to Government of Implementation of the Bil
The costs associated with the proposed electoral and boundaries review
process will be borne by the State through the Electoral Commission of
Queensland. The cost of conducting any referendums will be apportioned
between the affected local governments.
The balance of the proposals will not have any financial impacts on the
State other than the cost of preparing the legislation and providing for
appropriate training, eg, for local government returning officers and other
election participants to be aware of changes to election procedures.
Consistency with Fundamental Legislative Principles
The Bill is generally consistent with fundamental legislative principles
Moreover, the Bill significantly advances fundamental legislative principles
dealing with the rights and liberties of individuals by providing a legislative
process for the consideration of the views of all electors affected by certain
external boundary change to their local government areas.
Consultation
Varying degrees of consultation have occurred with interested parties
(outlined below) during the preparation of the Bill.
� Local Government Association of Queensland Inc.
� Institute of Municipal Management (Qld) Division
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Local Government Legislation Amendment
� Electoral Commission of Queensland
� Brisbane City Council
� Local Government Commissioner
� Department of Justice
� Department of Natural Resources
� Queensland Treasury Department
� Department of Premier and Cabinet
� Local Government Superannuation Board (superannuation
arrangements)
� State Superannuation Office (superannuation arrangements)
� State Ombudsman's Office (validation of water charges)
� Livingstone Shire Council (validation of water charges)
EXPLANATION OF CLAUSES
Clause 1 sets out the short title of the Act.
PART 2--AMENDMENT OF CITY OF BRISBANE
ACT 1924
Clause 2 provides for the amendment of the City of Brisbane Act 1924.
Clause 3 sets out the amendments to the Local Government Act 1993
that apply to Brisbane City Council and the City of Brisbane.
The clause applies the provisions regarding reviewable local government
matters and the application of competitive neutrality reforms to local
government.
The clause also applies the provisions regarding qualification for
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Local Government Legislation Amendment
nomination as candidate, prohibition on dual candidature, leave to local
government employee to contest an election, and a candidate's obligation to
identify endorsement.
These provisions of the Local Government Act 1993 apply to Brisbane
City Council as if the council were a local government established under that
Act.
This provision is necessary as the Local Government Act 1993 provides
that unless the legislative provisions under the Act or any other Act
expressly state that they apply to Brisbane City Council or the City of
Brisbane, the provisions exclude application to Brisbane.
Clause 4 provides for the omission of a division heading to reflect new
provisions of the Local Government Act 1993 dealing with local
government elections which will now apply to the Brisbane City Council.
Clauses 4, 5, 6 and 7 provide for the omission of a division dealing with
the redistribution of electoral wards so that amendments to the Local
Government Act 1993 dealing with changing ward boundaries in the City of
Brisbane will apply.
Clause 8 amends the provisions concerning electoral rolls for each ward
of Brisbane City Council as a result of the application of amendments to the
Local Government Act 1993 dealing with changing ward boundaries in the
City of Brisbane.
Clause 9 amends section 16 of the Act by inserting a new provision
fixing the date of the 1997 triennial election for Brisbane and making
provision for a regulation making power to set a different date for such
elections if required. The election will normally be held on the last Saturday
in March every third year with a regulation making power to set a different
date for such elections if required. The intention of the amendments is to
enable the triennial elections for Brisbane to be held on the same day as the
triennial elections for other local governments under the Local Government
Act 1993.
Clause 10 amends the provisions of section 17 of the Act to provide that
the cut-off day for compiling electoral rolls for the triennial elections is 31
January in the year of the triennial elections.
Clause 11 repeals section 20 of the Act setting out when triennial
elections and separate elections conclude and when the term of office of the
mayor and other Councillors commence. This section is redundant because
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Local Government Legislation Amendment
amendments to section 6 of the Local Government Act 1993 provide for the
conclusion of elections for the Brisbane City Council and when the term of
office of the mayor and other Councillors commence.
Clause 12 amends section 58 to clarify the law relating to the making of
utility charges and provide suitable future options for the making of utility
charges. The provision is similar to that which will apply to all other local
governments under amendments to section 569 of the Local Government
Act 1993.
Clause 13 amends section 69 of the Act by clarifying that the Council
must make a resolution setting out the rules for the conduct of a lottery if it
decides to conduct a lottery where the chance of winning a prize is offered
as a benefit for the prompt payment of rates. Eventually the rules for
conducting these lotteries will be provided under the Art Unions and Public
Amusements Act 1992 or other future legislation governing such activities.
Therefore, the amendments are due to expire on 30 June 1998.
Clause 14 inserts a new part in the Act providing transitional and savings
provisions for application of the amendments in this Act. It provides that
31 January in the year of the 1991 and 1994 triennial elections was the
cut-off day for the electoral rolls for those respective triennial elections. It
provides that this part expires on 1 May 1997.
PART 3--AMENDMENT OF LOCAL GOVERNMENT
ACT 1993
Clause 15 provides for the amendment of the Local Government Act
1993.
Clause 16 provides for the omission of certain redundant definitions, the
insertion of new definitions into the Act, and the amending of certain
definitions relating to reviewable local government matters and local
government election procedures.
Clause 17 amends section 6 which sets out when a local government
election is to conclude. Section 316 of the Act requires the returning officer,
after the result of a poll for an election is known, to display a notice in the
local government's public office declaring the result of the poll. The
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Local Government Legislation Amendment
returning officer must also publish a notice in a newspaper declaring the
result of the poll.
For local governments other than the Brisbane City Council, the triennial
or fresh elections where a poll is conducted concludes on the day that the
last declaration of a poll is published in a newspaper, and for a by-election,
the day on which the declaration of the poll is published in a newspaper.
The amendment provides that triennial or fresh elections or a by-election
where a poll is conducted are now concluded on the date the declaration (or
last declaration if there is more than one poll) is displayed in the local
government's public office rather than the date of publication of the
declaration in a newspaper. This prevents any delay to concluding the
elections due to the infrequent or periodic publication of newspapers in
certain areas.
Section 6 is also amended by providing for the conclusion of an election
of a councillor for the City of Brisbane. This replaces section 20 of the City
of Brisbane Act 1924, but does not change the intent of that section, that an
election concludes when the names of the elected candidates, or candidate if
a by-election, are published in the gazette. For newly elected councillors,
their terms of office commence the day after notice is given in the gazette.
Clause 18 amends section 8 of the Act defining the term "open to
inspection". This section sets out what must occur when the Act requires a
document to be open to inspection. The amendment provides that when a
document of a Local Government Electoral and Boundaries Commission is
open to inspection, it must be open to inspection at the office of the Electoral
Commission, the public office of a local government affected by the matter
or at another place arranged by the Commission. The intent is to apply the
provisions of section 8 to documents of a commission that are required to
be open to inspection.
Clause 19 sets out the amendments to the Local Government Act 1993
that apply to Brisbane City Council and the City of Brisbane as if the council
were a local government established under the Act. In order for the
provisions of the Local Government Act 1993 to apply to the Brisbane City
Council and its area, the Act must expressly state such application.
Clause 20 amends section 10 which identifies how terms used in the
parts of the Act ( and other Acts dealing with local government) apply to
Brisbane City Council and its area. New terms are inserted to deal with the
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Local Government Legislation Amendment
application to Brisbane of various electoral provisions and references to the
council's public office.
Clause 21 inserts a new section 62 into the Act, containing new
definitions applicable to Chapter 3 Part 1 dealing with reviewable local
government matters. In particular, it provides that any reference in Part 1 to
a commission is a reference to a Local Government Electoral and
Boundaries Review Commission.
Clause 22 inserts a new section 63 into the Act adding to the definition of
"owner of land" in section 5 of the Act as the term applies to Chapter 3 Part
1 dealing with reviewable local government matters. This is necessary
because Part 1 of the Act now provides for owners of land to have special
rights in certain circumstances for dealing with reviewable local government
matters. The State is to be also regarded as the owner of certain land for the
purposes of Part 1, in addition to anyone else defined under the Act as the
owner of that land, eg, a lessee of State land. The power exists for a
regulation to be made prescribing additional persons who may be treated as
an owner for the purposes of Part 1.
Clause 23 amends the definition of reviewable local government matters
in section 64 of the Act. It provides that in applying the concept of
reviewable local government matters to the City of Brisbane and Brisbane
City Council, it does not include things that are fixed in the City of Brisbane
Act 1924. The intent is that the City of Brisbane cannot be abolished under
the Local Government Act 1993, nor can a change be made to the name of
the City, its class as a City, the number of councillors making up the
Council, or the number of councillors to represent each ward, because these
matters are fixed in the City of Brisbane Act 1924. Clause 25 below also
inserts a new section 69D in the Local Government Act 1993 to clarify that
the number of wards cannot be changed under this Act, because this is fixed
in the City of Brisbane Act 1924.
The amendment also provides that the naming of Brisbane's wards can
be changed when there is a redistribution of wards under this Part.
Clause 24 provides for the repeal of section 65 dealing with referable
local government matters and the insertion of a new section 65 to define the
term "limited reviewable local government matter" that is used in this Part.
This term is used to describe a special process for dealing with a reviewable
local government that is transferring a part of a local government area to
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Local Government Legislation Amendment
another local government area or including in a local government area a part
of the State that is not in a local government area.
Such a transfer or inclusion is a limited reviewable local government
matter if the local governments and the affected owners of the land agree to
the change. Once this agreement is reached, the reviewable local
government matter can then be dealt with as a limited reviewable local
government matter. Clause 25 below inserts a new Division 3B of Part 1
that sets out the procedure for dealing with a limited reviewable local
government matter.
Clause 25 provides for the replacement of Divisions 2, 3, 5 and 6 of Part
1 with new Divisions for dealing with reviewable local government matters.
Division 4 of Part 1 is retained, but amendments have been made.
Division 2--Local Government Electoral and Boundaries Review
Commissions
Subdivision 1--Establishment, constitution and functions of
commissions
Section 66 establishes a Local Government Electoral and Boundaries
Review Commission for each reference of a reviewable local government
matter referred to the Commissioner and for each application relating to a
limited reviewable local government matter. In relation to references, the
intent is that a separate Commission be constituted for each reference made
by the Minister.
Section 66A provides for the constitution of each Commission.
If the reference is a special reference, a Special Commission is to be
constituted. Its members are to be a judge or former judge of a court of the
Commonwealth, or a State or Territory with at least 3 years' experience as a
judge, a chief executive officer of a State Government Department and the
Electoral Commissioner (or the Deputy Electoral Commissioner). The
chairperson of a Special Commission is the member who is a judge or
former judge.
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Local Government Legislation Amendment
A special reference is a reference that must be made under section 235 of
the Act if any of the wards of the City of Brisbane do not comply with the
quota and are outside the margin of allowance of 10% on or about 1
October two years before the triennial elections, eg, if on or about 1 October
1998 any of the wards do not comply with the quota and are outside the
10% margin of allowance, the Minister must make a special reference for a
redistribution before the triennial elections in the year 2000.
For any other reference other than a special reference, the Commission
will consist of the Electoral Commissioner or Deputy Electoral
Commissioner and if necessary, one or more Review Commissioners. The
Minister may request that a Commission include a minimum number of
Review Commissioners. Subject to this request, it is up to the Electoral
Commissioner to decide if Review Commissioners are needed and if so,
how many. Review Commissioners are appointed to a Commission by the
Electoral Commissioner, drawn from a panel of Review Commissioners
appointed by the Governor in Council as set out in section 96 (explained
below).
When an application for a limited reviewable local government matter is
made, the Electoral Commissioner, or if directed, the Deputy Electoral
Commissioner, will constitute the Commission.
Section 66B provides that the functions to be carried out by a
Commission are to examine and determine reviewable local government
matters referred by the Minister or the subject of an application as a limited
reviewable local government matter. If a reference involves the external
boundaries of a local government, a Commission's function includes
examining and making recommendations on other matters defined as
"implementation issues", eg, apportioning assets and liabilities if external
boundaries are changed. The list of implementation issues is defined in
section 4 of the Act, as amended by Clause 16.
Subdivision 2--Business and meetings of commissions
Section 67 provides for the way a commission is to conduct its business.
Section 67A provides for when and where an expanded Commission
holds meetings. An expanded Commission is one which is constituted by
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Local Government Legislation Amendment
more than one member and includes a Special Commission. An expanded
Commission decides on its meeting times. The chairperson of an expanded
Commission may also call a meeting by giving reasonable notice to the
other members.
Section 67B provides the requirements for determining if a quorum is
present to allow meetings of an expanded Commission to proceed.
Section 67C provides for who presides at a meeting of an expanded
Commission.
Section 67D provides for the method of deciding matters being
considered by an expanded Commission.
Section 67E requires the disclosure of either direct or indirect financial
interests of a Commission member and how it is to be dealt with.
The interest has to be disclosed and recorded in the Commission's
minutes. Unless directed otherwise by the Commission, the member who
has disclosed an interest is not to be present or take part in any decision
making on the matter being considered. If a member has a conflict of
interest, that member must not take part when the Commission is
considering whether to give a direction, nor in the decision to give a
direction allowing the member to participate in consideration of the issue.
If the absence of a member because of a conflict of interest takes the
number of members below what is required for a quorum for the
Commission meeting, the remaining members present are sufficient to
form a quorum to decide the matter being considered.
Section 67F details the action to be taken if the Commissioner or Deputy
Commissioner has a direct or indirect interest in an issue or could be
regarded as having a conflict of interest.
Subdivision 3--Miscellaneous
Section 68 provides for the resignation of a Review Commissioner from
a commission by notifying the Commissioner in a signed notice of
resignation. In addition, the provisions of section 25 of the Acts
Interpretation Act 1954 do not apply to the appointment of a Review
Commissioner to a Commission, except section 25(1)(b)(iv).
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Local Government Legislation Amendment
Division 3--References of, and applications for, reviewable local
government matters
Subdivision 1--References to Commissioner by Minister
Section 69 details how the Minister can refer reviewable local
government matters to the Commissioner. It provides different methods of
specifying the matter and gives examples of methods of describing areas for
consideration.
Reviewable local government matters are specified in section 64 of the
Act. They include the creation of a new local government area, the abolition
of an existing area and its amalgamation with a neighbouring area or new
area, changing the external boundaries of a local government area, dividing
or redividing and abolishing divisions of a local government area and
changing the composition of a local government.
Section 69A requires the Minister to table a copy of any reference in the
Parliament within 7 sitting days and to give notice to each local government
mentioned in the reference.
Section 69B provides that the Electoral Commissioner may request the
Minister to refer a reviewable local government matter to the Electoral
Commissioner. Reasons for the request are to be given in the request. It
details what action must be followed if the request is either approved or
refused.
Subdivision 2--References to commissioner by local governments
Section 70 provides for how a local government may apply to the
Electoral Commissioner to determine a limited reviewable local government
matter. It details what information must accompany the request. The
request can only be made if all affected local governments have, by
resolution, decided to make the application.
The application must be in the approved form and must include written
agreement to the request from each affected local government and affected
landowner.
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Local Government Legislation Amendment
The application must also include a certificate by the local governments
that the issues prescribed under a regulation made under section 75 of the
Act have been considered.
In addition, the local governments are to include a report on how the
implementation issues have been examined and suggestions about the
implementation issues, eg, apportionment of assets and liabilities between
the local governments, application of rates.
Division 3A--Procedures for major and minor references of reviewable
local government matters
Subdivision 1--Preliminary
Section 71 details the actions to be taken after the Minister has given a
reference to the Electoral Commissioner.
If a reference includes consideration of the City of Brisbane's wards, it must
be treated as a major reference. This is set out in the definition of the term
"major reference".
If a major reference is a special reference, the Governor in Council must
appoint a judge and a chief executive officer of a State Department (as
required under section 66A) to partly constitute a special commission. The
remaining member of a special commission is the Electoral Commissioner
or, if directed, the Deputy Electoral Commissioner.
A reference must also be treated as a major reference if the Minister has
so requested when making the reference. This is set out in the definition of
the term "major reference".
If none of the above provisions apply to the reference, the Electoral
Commissioner must decide whether the reference is to be treated as a major
or minor reference and give Gazette notice accordingly.
If the Electoral Commissioner decides an expanded commission is
needed (or if the Minister has directed there be a minimum number of
review commissioners) the Electoral Commissioner appoints the review
commissioners to constitute the commission along with the Electoral
Commissioner (or the Deputy Electoral Commissioner if so directed).
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Local Government Legislation Amendment
If it is not an expanded commission, the Electoral Commissioner
constitutes the commission. However, the Electoral Commissioner may
also decide not to participate in a commission and in this case must direct
the Deputy Electoral Commissioner to constitute the commission.
Section 71A provides for the appointment of additional review
commissioners after the establishment of a commission (except a special
commission). For example, the Electoral Commissioner may decide after
constituting a commission that the commission's consideration of an issue
would benefit from having review commissioners to participate.
Section 71B provides that a Commission may declare that a minor
review is a major review. If a Commission does make this declaration, that
Commission continues in existence to determine the reference, but it must
then follow the procedure for a major reference.
Section 71C requires that a Commission must have regard to prescribed
issues when considering a reviewable local government matter.
Section 71D imposes certain restrictions on the activities of a
Commission (including a Special Commission) that is considering changes
to the wards of the City of Brisbane. The Commission cannot make a
determination that would change the number of electoral wards in the City
because this is fixed in the City of Brisbane Act 1924 as 26. In addition, if
the Commission is naming electoral wards in the City as a part of its
review, it is not allowed to used a name which is the name of an electoral
district under the Electoral Act 1992.
Subdivision 2--Major references of reviewable local government matters
Section 72 provides for the application of this subdivision to a reviewable
local government matter which is the subject of a major reference being
considered by a Commission. This includes a special reference.
Section 72A provides that a Commission may make inquiries it considers
appropriate when examining a matter that has been referred.
Section 72B details the preliminary procedures to be undertaken by a
Special Commission. These preliminary procedures may also be applied by
a Commission to any other major reference, but it must give Gazette notice
if it has done so.
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Local Government Legislation Amendment
The following activities must be undertaken prior to determining whether
the reviewable local government matters in a reference should be
implemented. The Commission must invite suggestions on the matter by
public notice from persons and entities. The suggestions have to be
received within 30 days of the notice. These suggestions are to be open for
public inspection and the public must be invited, by a second notice, to
make written comment on the suggestions. These comments will have to
be received within 21 days of the second notice.
Copies of the suggestions and comments are to be available for
inspection at the office of the Electoral Commission in Brisbane, the public
office of each local government which would be affected if the matter were
implemented and at any other place considered appropriate by the
commission. The Commission must take all suggestions and comments
into account when it is determining whether the reference is to be
implemented.
Section 72C provides that if a Commission determines not to implement
a major reference of a reviewable local government matter, a report, stating
the determination and reasons, must be prepared by the Commission. The
intent is that this could occur if a commission decides not to formulate a
proposed determination to implement a reviewable local government matter.
Section 72D provides that a Commission must give public notice of a
proposed determination to implement a reviewable local government matter.
If relevant, the Commission must also include its recommendations on
implementation issues for the matter.
This section also sets out what must be included in the notice and how
submissions in response should be made. If the proposed determination is
one that requires a compulsory referendum to be held, the Commission
may include in the notice its suggestions about what should be the affected
area and the voting areas for the referendum .
The proposed determination must be available for inspection at the office
of the Electoral Commission in Brisbane, the public office of each local
government which would be affected if the matter were implemented and at
any other place considered appropriate by the Commission.
Section 72E provides the Commission must consider all submissions
received in response to its proposed determination. The Commission may
amend its proposed determination to implement a reviewable local
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Local Government Legislation Amendment
government matter. If it intends to substantially change its proposed
determination, it must give notice of the amended proposed determination.
An amended proposed determination is taken to be the proposed
determination for the purposes of re-advertising the amended determination.
The intent is that the procedure for substantially amending and
re-advertising a proposed determination could be undertaken more than
once.
Section 72F provides for the holding of a referendum on a proposed
determination in certain circumstances.
A referendum must be held if a Commission proposes to make a final
determination for the abolition or creation of a local government area, or the
amalgamation of local government areas. This is defined as a compulsory
referendum
A Commission may decide to hold a referendum if it proposes to make a
final determination that could result in the changing of the external
boundaries of a local government area by excluding part of the area and
including it in another local government area. However, the decision to hold
a referendum can only occur after consultation with the local governments
that would be affected if the matter were to be implemented. This
referendum is defined as a non-compulsory referendum.
Section 72G requires a Commission to make a final determination on the
matter it is considering and prepare a report for the Minister as soon as is
practicable after either the result of a referendum for the matter or after the
Commission completes its consideration of submissions on the proposed
determination.
The report must include the final determination whether or not to
implement a reviewable local government matter and if relevant, any
recommendations on implementation issues. The report must also include a
summary of the submissions made in relation to the matter (including
suggestions and any comments on suggestions received, if applicable),
copies of all submissions, suggestions and comments received, and the
results of any referendum, if one was held.
If a compulsory referendum is held and the referendum question is not
approved, a copy of the Commission's proposed determination (and any
recommendations on implementation issues) must be included in the report.
This requirement is intended to provide the information necessary for
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Local Government Legislation Amendment
further consideration of the matter by the Legislative Assembly (as provided
under section 72J).
If a compulsory referendum approved the proposed determination, the
Commission must determine that it be implemented. If a compulsory
referendum has opposed a proposed determination, the Commission must
determine that the proposed determination not be implemented.
If a non-compulsory referendum has been held, the Commission may
determine to implement the matter regardless of the referendum result.
Section 72H requires the Commission to give public notice in the gazette
and local newspapers of its final determination or its determination under
section 72C, and present its report. The notice must include a summary of
the determination and state that its report is open to inspection at the
Electoral Commission's office and the public office of each relevant local
government. The notice must also state that the matter is to be implemented
by regulation if the Commission determines the matter be implemented.
The Commission must give its report to the Minister along with a copy
of the notice. A copy of the report must also be given to each relevant local
government.
Section 72I requires that if the Commission determines the matter be
implemented, the Governor in Council must implement the matter by
regulation as soon as practicable after receipt of the report and gazette notice
by the Minister. The regulation may provide that the changes commence at
a later time, eg, on and from the conclusion of the next triennial elections.
Section 72J provides circumstances for the implementation of a
reviewable local government matter at the request of the Legislative
Assembly.
This section will apply if a compulsory referendum has been held and
has not approved the proposed determination.
In these circumstances, within seven sitting days of the Minister tabling
the Commission's report on the matter, the Legislative Assembly may
resolve to ask the Governor in Council to implement the matter. The matter
must be implemented by regulation as soon as practicable by the Governor
in Council after the resolution is passed. The regulation may provide that
the changes commence at a later date, eg, from the start of a financial year.
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Local Government Legislation Amendment
Subdivision 3--Minor references of reviewable local government matters
Section 73 provides for the application of this subdivision to reviewable
local government matters which are the subject of minor references being
considered by a Commission.
Section 73A provides for a Commission to make appropriate inquiries
when considering a minor reference of a reviewable local government
matter.
Section 73B provides for the Commission to prepare a report, if after
considering the matter it determines that the matter not be implemented.
Section 73C provides that if a Commission proposes to determine that a
reviewable local government matter be implemented, it must develop a
proposed determination and give written notice to each local government
that would be affected if the matter were to be implemented.
If the matter is one dealing with either the alteration of a local government
external boundary or including in a local government area an unincorporated
area, the notice must also be given to each owner of land in the part
proposed to be changed. The notice may also be given to anyone else the
Commission considers would be directly affected.
The notice must include information about the general effect of the
proposed determination and if relevant any recommendations on
implementation issues, and state that the details of the proposed
determination are open to inspection and submissions may be made on the
proposed determination within 30 days after the proposed determination is
first open to inspection at the Electoral Commission's office. The
commission may allow extra time to take into account the time taken in
providing the notice and details of the proposed determination to the affected
local governments.
The notice given to the local government should include a copy of the
details of the proposed determination and any implementation issues on the
matter. These particulars must be open to inspection at the Electoral
Commission's office and the public office of each local government
affected by the proposal. Because of the application of section 8, the public
is entitled to inspect the proposals even though no public notice has been
given.
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Local Government Legislation Amendment
Section 73D provides the Commission must consider all submissions
received in response to its proposed determination. The Commission may
amend its proposed determination to implement a reviewable local
government matter. If it intends to substantially change its proposed
determination, it must give notice of the amended proposed determination.
Section 73E requires a Commission to make a final determination on the
matter it is considering and prepare a report for the Minister as soon as is
practicable.
The report must state the determination and reasons and if relevant
include recommendations on implementation issues, and include a
summary of the submissions made on the matter (copies of submissions
must be attached).
Section 73F requires the Commission to give public notice of its final
determination or its determination under section 73B in the gazette and local
newspapers and to present its report and a copy of the gazette notice to the
Minister. The report must also be given to the relevant local governments.
The notice must include a summary of the determination, indicate the
Commission's report is open to inspection at the Electoral Commission's
office and the public office of each relevant local government and state that
the determination is to be implemented by regulation.
Section 73G requires that if the Commission determines the matter be
implemented, the Governor in Council must implement the matter by
regulation as soon as practicable after receipt of the report and gazette notice
by the Minister. This section also clarifies that the regulation can commence
on a later day fixed in the regulation, eg, the start of a financial year or from
the next triennial election.
Division 3B--Limited reviewable local government matters
Section 74 provides for the application of this division for an application
made for a determination of a limited reviewable local government matter.
The Commission must make a determination on the matter even if the
matter is at any time the subject of a reference of a reviewable local
government matter. However, this would not prevent the Commission from
deciding not to implement the matter as a result of the application, but then
consider the matter further if it is part of a reference.
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Local Government Legislation Amendment
Section 75 provides a Commission may make appropriate inquiries when
considering a limited reviewable local government matter.
Section 76 requires the Commission to have regard to issues prescribed
by regulation when considering a matter. These issues must also have been
considered by the relevant local governments when making an application
as required under section 70.
Section 77 applies if an affected local government for the matter is
divided. The Commission cannot made a determination to implement the
matter if it means that the quota of electors is not complied with and it is
outside the margin of allowance specified under section 233.
Section 78 details what action must be taken by the Commission if it
decides to implement a limited reviewable local government matter. The
Commission must give public notice of its final determination in the Gazette
and local newspapers and present its report and a copy of the notice to the
Minister. A copy of the report must also be given to each local government
whose agreement accompanied the application. The notice must include a
summary of the determination, indicate the Commission's report is open to
inspection at the Electoral Commission's office and the public office of each
relevant local government and state that the determination is to be
implemented by regulation.
Section 78A details what action must be taken by the Commission if it
determines that the limited reviewable local government matter not be
implemented. The Commission must prepare a report stating the
determination and reasons and give the Minister a copy of the report A
copy of this report must also be given to the local governments whose
agreements accompanied the application. The Commission must also give
written notice of its determination to the landowners who agreed to the
change in the application for the determination of the matter. The notice
must state the determination and that the Commission's report is open to
inspection at the office of the Electoral Commission and at the public office
of each relevant local government.
Section 79 requires that if the Commission determines the matter be
implemented, the Governor in Council must implement the matter by
regulation as soon as practicable after receipt of the report and gazette notice
by the Minister. This section also clarifies that the regulation can commence
on a later day fixed in the regulation, eg, the start of a financial year or from
the next triennial election.
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Local Government Legislation Amendment
Clause 26 inserts a new section 80 which provides for an expanded
Commission considering a reviewable local government matter which is the
subject of a major reference to decide to hold an inquiry into the matter.
Clause 27 omits Divisions 5 and 6 of Chapter 3 Part 1 and inserts the
following new Divisions in their place.
Division 4A--Referendums
Subdivision 1--Preliminary
Section 91 provides for the application of this division to the conduct of a
compulsory or non-compulsory referendum held for a reviewable local
government matter. Section 72F specifies when a referendum must or may
be held.
Section 91A defines how a referendum question is approved.
Section 4 provides that an affected elector for an affected area for a matter
for which a referendum is to be held, means a person who on the
referendum roll cut-off day is an elector under the Electoral Act 1992 for an
electoral district or part of an electoral district included in the affected area.
An affected elector for a voting area of an affected area, means a person
who on the referendum roll cut-off day is an elector under the Electoral Act
1992 for an electoral district or part of an electoral district included in the
voting area.
A person who is an affected elector for an affected area approves a
referendum question if the person answers the question in the affirmative.
A referendum question for an affected area is approved if those persons
approving the question are greater in number than those not approving.
If the affected area is divided into voting areas, each elector for the voting
area approves a referendum question if the person answers the question in
the affirmative. The voting area approves the question if the affected
electors who vote to approve the question are greater in number than those
who vote to oppose the question. The affected area approves the
referendum question only if each voting area approves the question.
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Local Government Legislation Amendment
Subdivision 2--Holding referendums
Section 92 requires the wording of a referendum question to be
prescribed under a regulation.
Section 92A requires the Commissioner to appoint a returning officer and
assistant returning officer for the purpose of conducting a referendum.
Notice of the appointment must be made in the Gazette as soon as
practicable. The returning officer and assistant returning officer are entitled
to be paid the fees and allowances decided by the Commissioner. The
returning officer for a referendum must operate a public office for this
purpose.
The affected local governments must provide the returning officer with
all reasonable assistance in conducting a referendum.
Section 92B provides for a referendum to be held on a Saturday. A later
day may be fixed by the Governor in Council by Gazette notice if the
returning officer has already given public notice of the referendum day. The
Gazette notice must give necessary directions to electors about the
procedures to be followed if a new referendum day is fixed. The Gazette
notice must also be published in a newspaper circulating in the local area.
Section 92C requires the returning officer to give public notice of the
referendum day and to also notify electors of certain information dealing
with the conduct of the referendum including the roll cut-off day and a brief
explanation about the referendum question and who is an affected elector for
the referendum.
Sections 92D requires the returning officer to compile a voters roll for the
affected area or for each voting area if there are voting areas.
The roll must be comprised of electors under the Electoral Act 1992 who
are enrolled for an electoral district (or part of an electoral district) included
in the affected area or voting area.
Section 92E provides for the voters roll to be open to inspection and may
be purchased at a cost which is no more than the cost of making a copy.
Section 92F requires the Commission to prepare an explanatory
statement about the advantages and disadvantages of the proposed
determination to adequately advise affected electors of the necessary
information to enable them to make an informed decision when voting at a
referendum.
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Local Government Legislation Amendment
Section 92G enables the Commission to request and be given
information necessary for the preparation of the explanatory statement from
a local government.
Section 92H requires the returning officer to provide each affected elector
with the relevant explanatory statement for the referendum at a reasonable
time before the referendum date. The returning officer must also display a
copy of the Commission's proposed determination and the explanatory
statement in the returning officers public office and other places considered
appropriate by the returning officer.
Section 92I clarifies that a local government which considers it will be
affected by the outcome of a referendum, may inform affected electors of its
views about the referendum question.
Section 92J provides that voting at a referendum is compulsory.
Section 92K applies (with any necessary changes or changes prescribed
by regulation) the provisions of the Local Government Act 1993, ie. chapter
5 (Local government elections), part 6 (Conduct of elections) to the conduct
of a referendum.
Subdivision 3--Replacement provisions
Section 93 provides that a provision of chapter 5, part 6 of the Local
Government Act 1993 does not apply to the extent that it is inconsistent with
the replacement provisions in this subdivision.
Section 93A provides the Governor in Council may direct that a
referendum for the whole, or a part, of an affected area be conducted by
postal ballot.
Section 93B provides that a separate coloured ballot paper must be used
for each voting area.
Section 93C specifies how an affected elector may vote to approve or
oppose a referendum question.
Section 93D specifies the requirements for accepting a ballot paper from
an elector, including the requirements for accepting a declaration vote.
Section 93E provides for the appointment of scrutineers for a
referendum. A local government for the affected area or an individual or
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Local Government Legislation Amendment
group of individuals reasonably identified by the returning officer in the
community as supporting or opposing the referendum question may
appoint a scrutineer(s) to be present at a polling booth or a place for
examination of declaration envelopes or votes. If the efficiency of the
conduct of the referendum could be adversely affected, a returning officer
may reject the appointment of further scrutineers and may direct one or
more scrutineers to leave a place. A scrutineer must comply with a
direction or otherwise be subject to a maximum penalty of 10 penalty units
($750).
Subdivision 4--Miscellaneous
Section 94 provides that each local government for an affected area must
bear the costs of a referendum, irrespective of whether or not the cost is
provided for in its budget.
Section 94A provides for proof of a voters roll.
Division 5--Provisions about commission members
Subdivision 1--Commissioner and deputy commissioner
Section 95 provides for the Electoral Commissioner to direct the Deputy
Commissioner to perform the function of the Commissioner in relation to a
reviewable local government matter if the Electoral Commissioner is unable
to perform the function or exercise a power.
Subdivision 2--Appointment, and duration of appointment, of review
commissioners
Section 96 provides for the appointment by the Governor in Council of
qualified individuals as Review Commissioners.
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Local Government Legislation Amendment
The Minister must consult with the Local Government Association of
Queensland prior to the initial appointment. A person is qualified for
appointment if the person has either extensive knowledge and experience in
local government, public administration, law, public finance or community
affairs, or, has other qualifications and experience the Governor in Council
considers appropriate.
A person is not qualified for appointment if the person is a member of
Parliament or a nominee for election as a member of Parliament, a
Councillor or nominee for election as a Councillor or is a member of a
political party.
Section 96A provides that a Review Commissioner may be appointed for
a term not exceeding three years. A Review Commissioner may be
re-appointed at the conclusion of the original term of appointment of that
Commissioner. If a Commissioner is re-appointed for a further term, there
is no necessity for consultation to occur prior to any such re-appointment.
Subdivision 3--Terms of appointment, resignation and termination of
appointment of certain commission members
Section 97 defines a Commissioner for this subdivision is a Review
Commissioner or the chairperson of a Special Commission.
Section 98 provides that a Commissioner is entitled to receive the
remuneration and allowances and holds office subject to the conditions
determined by the Governor in Council.
Section 99 provides for a Commissioner to resign by giving notice in
writing to the Minister.
Section 100 provides for the termination of the appointment of a
Commissioner by the Governor in Council.
A Commissioner's appointment must be terminated if the person
nominates for election to an Australian parliament; nominates for election to
a local government or is appointed as a local government Councillor; joins a
political party; or becomes a bankrupt. In addition, the person's
appointment must be terminated if the person breaches the requirements of
new section 67E which deals with the disclosure of interests by a
Commissioner.
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Local Government Legislation Amendment
Division 6--Miscellaneous
Section 101 provides for the Electoral Commission to provide the
necessary staff and administrative support to a Commission.
Section 102 requires the Electoral Commissioner to provide an annual
report to the Minister on the Local Government Electoral and Boundaries
Review Commission operations during the preceding financial year. The
report may form part of the annual report prepared by the Electoral
Commission.
Section 103 requires the Minister to table a copy of a report on a major or
minor reference of a reviewable local government matter, in the Legislative
Assembly within 7 sitting days of receiving it.
Section 104 requires the Electoral Commissioner to ensure copies of each
commission's report are available for public inspection at the office of the
Electoral Commission in Brisbane and are available for purchase for 6
months after the report is tabled or for a limited reviewable local
government matter, 6 months after notification of the commission's
determination
Section 105 provides for the making of a regulation about additional
procedures for both major and minor references of reviewable local
government matters and for applications in relation to limited reviewable
local government matters.
Clause 28 amends section 169 by clarifying when a person is qualified to
become a councillor of a local government. A person is qualified if the
person lives in the local government area and is an elector under the
Electoral Act 1992 for an electoral district or part of an electoral district
included in the whole of the local government area.
In order to be an elector, the section sets out two different circumstances.
First, for a person's election as a councillor, the person must be an elector
for the whole of the local government area when the voters roll for the
election is compiled under section 225 (for a triennial election or a
by-election), section 353 (for a fresh election), or for election as a councillor
of Brisbane City Council, section 17 of the City of Brisbane Act 1924 (for a
triennial election) or section 80 of the Electoral Act 1992 as it applies to a
by-election for the mayor or a councillor of the Brisbane City Council.
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Local Government Legislation Amendment
Second, for a person's appointment as a councillor, the person must be
an elector for the whole of the local government area for at least 30 days
before the appointment.
For example, for a by-election in Division 1 of an area, a person who is
an elector for Division 2 of the area, at the time when the voters roll is
compiled for Division 1, may nominate for election even though the person
is not on the voters roll for Division 1.
Clause 29 amends section 170 of the Act dealing with general
disqualifications by providing a person may not be or become a councillor if
the disqualifications apply.
Clause 30 amends section 200(1)(a) of the Act dealing with when a
councillor's office becomes vacant by providing that a person's office as
councillor is vacated if (among other things) the person ceases to be
qualified to be or become a councillor.
Clause 31 amends section 202 of the Act by clarifying that the registered
officer of a registered political party can only nominate a qualified person to
fill a vacancy if the vacating councillor at the time of candidature had been
nominated on the nomination form by a registered officer of a political party
under section 250(1)(a) or if the former councillor was a councillor of the
Brisbane City Council, under section 84 of the Electoral Act 1992 as it
applies to the conduct of an election for Brisbane City Council.
Also, if the vacating councillor was appointed to office as a registered
political party's nominee, the new councillor must be a nominee of the
registered political party.
The same procedure applies to the filling of a vacancy if the former
councillor held office as mayor.
Clause 32 inserts a new section 219A providing that a local government
is responsible for expenditure incurred for the conduct of a election in its
area. This clarifies that the local government and not the returning officer is
responsible for remuneration paid to electoral officers employed during the
election.
Clause 33 makes a technical amendment to section 220(2) to reflect the
amendment contained in clause 34 below.
Clause 34 replaces the existing section 221 and section heading.
The new provisions allow the Chief Executive Officer (CEO) of a local
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Local Government Legislation Amendment
government to appoint someone else as the returning officer to conduct an
election in the area and the appointment must be in the approved form.
Subsection (2) sets out the procedure to be followed if the CEO intends
to appoint a person who is not a current employee of the Council. As far as
possible, the CEO must invite expressions of interest from qualified
persons by giving notice in a newspaper. The CEO may also invite
submissions for appointment as returning officer from anyone the CEO
considers may be suitably qualified, eg, a person who has experience in
conducting state elections for the Electoral Commission. If an appointed
returning officer is unable to complete or perform the duties of returning
officer, the CEO may become the returning officer or appoint another
person to act as the returning officer for the election.
The CEO may ask the Minister to appoint another person as returning
officer if the officer believes he or she cannot properly perform the duties
because of a conflict of interest. In this case the Minister must appoint
another person to be the returning officer.
Clause 35 amends section 233 to make provision for the new process for
the determination of references for reviewable local government matters and
the determination of limited reviewable local government matters. A Local
Government Electoral and Boundaries Review Commission must work out
whether the quota of electors for a relevant area is within the specified
margin of allowance when considering reviewable local government
matters. Calculation of the quota must be carried out as near as practicable
to the time the notice about the determination is given under sections 72D or
73C or 78.
Clause 36 inserts a new section 238A providing for the appointment of
an assistant returning officer for the conduct of a local government election
if required.
For example, assistant returning officers may be appointed in a large
divided local government area to conduct the election for one or more
divisions.
Clause 37 amends section 240 to clarify that anything done by an issuing
officer acting on the authority of a presiding officer is taken to be done by
the returning officer or presiding officer.
Clause 38 amends section 242 by clarifying that the returning officer
may act through an assistant returning officer, presiding officer or issuing
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Local Government Legislation Amendment
officer when the returning officer may or must do anything in the conduct
of the election.
Clause 39 inserts a new section 242A providing that the assistant
returning officer may act through a presiding officer or an issuing officer if
the assistant returning officer does anything in the conduct of the election.
Clause 40 makes a technical amendment to section 244(1) to reflect
amendments to section 169 by clause 28 above.
Clause 41 deletes section 247 which provided for endorsed candidates to
identify the fact of their endorsement on the nomination form. This matter
is provided for under section 202.
Clause 42 applies section 249 (Who may nominate) to the Brisbane City
Council.
Clause 43 inserts a new section 251A which sets out the special grounds
for deciding a person is not properly nominated as a candidate for election.
The new section contains several definitions and provides details of cases
where the nomination name may result in a candidate not being properly
nominated because the name could cause confusion or is a party name or is
obscene or offensive.
If the returning officer decides a person is not properly nominated, the
returning officer is to give a notice to the person stating the decision and the
reasons for that decision and advise the person of their right to seek an
injunction.
Clause 44 inserts a new section 252(1A) which requires the certificate
issued to a candidate by the returning officer to state the time, day and place
proposed for the draw for the order of listing of candidates' names on the
ballot paper.
Section 252(3)(c) is amended to clarify that the returning officer in
deciding if a person is properly nominated is not obliged to look beyond the
form of nomination and payment of the deposit, the voters roll, and
documentary evidence produced by the nominator or nominee that at the
time the voters roll is compiled for the election:--
(a) the nominator is an elector for that election or is the registered
officer of a registered political party; or
(b) the person who is nominated is an elector for the whole of the
local government area, ie, the intent is to reflect the provisions of
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Local Government Legislation Amendment
section 169, that the person does not have to be an elector for a
particular division (if it is a divisional election), but must be an
elector for the local government area.
Clause 45 amends section 264(3) by providing for a map, showing the
part or parts of a local government area where a postal ballot will be held, to
be open to inspection at the public office of the local government.
Clause 46 amends section 265 by clarifying that for a divided area each
polling booth within a local government area may be declared to be a polling
place for other divisions within the local government area.
Clause 47 amends section 273(5) to reflect the amendments to section
252 contained in clause 44 above dealing with the draw for the order of
names on the ballot paper.
Clause 48 amends section 293 which deals with the distribution of ballot
papers to electors who may or must cast a declaration vote.
Section 293(5) is amended by providing for written instructions (in the
approved form) setting out the procedure for declaration voting to be given
to each elector who is to cast a declaration vote.
Section 293(6) is amended to allow the use of reply paid envelopes
instead of prepaid postage envelopes. This will avoid unnecessary postage
costs being incurred if declaration votes are not returned.
Sections 293(7) and (8) are inserted which allow the returning officer to
post the items required to an elector who applies for a declaration vote under
subsection (3) and (5). The election matter may be sent to either the address
listed in the electoral roll for the local government election, the State electoral
roll, or to the address on the application made by the elector, eg, a mail
service number could be supplied. This will allow a voter who is absent to
have their ballot papers forwarded directly to their temporary address.
Clause 49 amends section 295 which deals with the distribution of ballot
papers to electors for a postal ballot election.
Section 295(1) is amended by providing for written instructions (in the
approved form) setting out the procedure for declaration and postal voting to
be given to each elector who is to cast a postal ballot.
Section 295(4) is amended to allow the use of reply paid envelopes
instead of prepaid postage envelopes. This will avoid unnecessary postage
costs incurred when postal ballots are not returned.
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Local Government Legislation Amendment
Sections 295(5), (6) and (7) are inserted which allow the returning officer
to post the items required to an elector for the postal ballot election to either
the address listed in the electoral roll for the local government election, or a
State electoral roll.
However, for an elector who must cast a declaration vote under section
290 or where the issuing officer suspects that the person is not entitled to
vote, the returning officer may give the things by posting them to either the
address listed in the voters roll, or a State electoral roll or to another address
given by the person on the declaration form.
Clause 50 amends section 298 which deals with the casting of declaration
votes before polling day.
Section 298(1) is amended to clarify that the returning officer may
declare one or more of the following as a place for casting of declaration
votes before polling day--the local government's public office or other
place used as a public office, or another convenient place.
Clause 51 inserts a new section 298A clarifying that a declaration voter
cannot be issued with more than one declaration envelope with separate
ballot papers where separate polls are conducted on the same day.
Clause 52 amends section 302 dealing with the effect of ballot papers in
first-past-the-post voting.
Section 302(2)(d)(ii) is inserted clarifying which elector is the person
casting the declaration or postal vote and requires the signature on the
declaration envelope to match the signature on the relevant application form.
Clause 53 amends section 303 dealing with the effect of ballot papers in
first-past-the-post voting.
Section 303(2)(d)(ii) is inserted clarifying that for an elector casting the
declaration or postal vote, the signature on the declaration envelope must
match the signature on the relevant application form. Superfluous wording
in section 303(3) is deleted.
Clause 54 amends section 308 of which deals with the preliminary
counting of votes by the presiding officer.
Section 308(2) provides for, among other things, an approved form for a
reconciliation statement for all ballot papers given out at a polling booth and
all votes put in ballot boxes at the booth.
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Local Government Legislation Amendment
A new subsection 308(3) is inserted to clarify who should issue a receipt
for all the items detailed in section 308(2).
Clause 55 amends section 310 which deals with the procedures for
processing declaration envelopes.
The design of the declaration envelope has been substantially altered to
ensure that declaration voters are satisfied that their votes will remain
confidential. Section 310 is amended to address the new procedures
necessary for processing the new declaration envelopes.
The returning officer must detach the elector's declaration from the
envelope, mark the elector's name on the voter's roll, place the envelope
into a locked or sealed ballot box and keep all accepted envelopes in the
ballot box until dealt with at the official count. However, the accepted
envelopes may be taken from the ballot box, the ballot papers removed
from the envelopes and placed into another locked or sealed ballot box until
dealt with at the official count.
In addition, provision has been made for local governments to mark a
computerised roll by the use of electronic receipting, such as the scanning of
a barcode on the envelope, as an alternative to manual marking of a voter's
roll, if the local government so wishes. It is considered such a procedure
could significantly shorten the receipting process.
Section 310(4)(a) is amended to ensure the accepted envelopes are kept
secure once the declaration has been removed and the envelopes placed in a
locked or sealed ballot box. This reflects the new procedures detailed above.
Similarly, section 310(6) is amended to reflect the new procedures for
processing declaration envelopes.
Clause 56 amends section 311 to take account of the amended
procedures for processing declaration envelopes as detailed in the amended
section 310 under clause 55 above.
Clause 57 amends section 315 providing for the returning officer to
bundle the rejected declaration envelopes, accepted envelopes and
declarations which have been removed from declaration envelopes.
Clause 58 inserts a new section 317A which requires the local
government to make a resolution deciding whether to take action about
electors who failed to vote in the election.
Clause 59 amends section 318 so that action against non-voters can only
be taken after the local government resolves it will take action about electors
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Local Government Legislation Amendment
who failed to vote. If the local government fails to make such a resolution,
no action can be taken.
The former requirement that a copy of the list be given to any person
who was a candidate in the election or who requests a copy has been
deleted.
Clause 60 replaces the existing provisions contained in section 319 of the
Act with new sections 319 and 319A.
The new section 319 deals with the preparation of a notice of failure to
vote in a local government election. This action can only be taken if the
local government has resolved to take action under section 318(4) explained
in clause 59 above.
The notice must state the elector's name and address; state that the elector
failed to vote; warn that this is an offence; and advise the elector that they
could pay a penalty of one-half of a penalty unit and no further action will be
taken by the local government.
The notice must require the elector, if he or she intends to pay the penalty
to sign a form enclosed with the notice and make payment. If the elector
does not intend to pay the penalty, the elector must advise whether they
voted in the election, and if not, the reason for not voting.
If the elector is unable to comply with the notice, or is absent, and another
elector, who has knowledge of why the first elector did not vote, complies
with the notice, the first elector is taken to have complied.
Section 319A requires a local government that receives payment from an
elector who receives a notice on failing to vote to accept the payment and
take no further action against the elector.
Clause 61 makes a technical amendment to section 320 to reflect
amendments to section 319.
Clause 62 inserts a new section 323A which requires a local government
to advise a person who applied for a declaration vote under section 290 (a)
and who made a declaration vote if it was not accepted for counting because
it was decided by the retuning officer that the person was not an elector.
Clause 63 amends section 349 by clarifying that an application may be
made to the Supreme Court of Queensland for an injunction if a returning
officer decides a person is not properly nominated for the election.
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Local Government Legislation Amendment
Clause 64 provides for the insertion into the Local Government Act 1993
of a new chapter 7A regarding National Competition Policy reform of
significant business activities.
CHAPTER 7A--NATIONAL COMPETITION
REFORM OF SIGNIFICANT BUSINESS ACTIVITIES
PART 1--OBJECT AND APPLICATION
Section 458A states that the object of the new chapter is to provide ways
to facilitate the application of National Competition Policy to significant
local government business activities.
Section 458B provides for the application of the chapter to the Brisbane
City Council.
PART 2--DEFINITIONS
Section 458C sets out the meanings of various terms used in the new
chapter inserted into the Local Government Act 1993.
The term "National Competition Policy Inter-Governmental
Agreements" is defined to mean the 3 agreements made in 1995 between
the Commonwealth and the States:
� the Conduct Code Agreement
� the Competition Principles Agreement
� the Agreement to Implement National Competition Policy and
Related Reforms.
The term "public benefit assessment" is defined for the purposes of
chapter 7A to mean an assessment of a significant business activity of a
local government.
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Local Government Legislation Amendment
The term "public benefit assessment report" is defined for the purposes
of chapter 7A to mean the report, including recommendations, on a public
benefit assessment.
The term "significant business activity" of a local government is defined
for the purposes of chapter 7A to mean a Type 1 or Type 2 business
activity.
The term "Type 1 business activity" is defined for the purposes of
chapter 7A to mean the provision of specified services by the following
local governments: Brisbane City Council; Gold Coast City Council;
Ipswich City Council; Logan City Council; and Townsville City Council.
The term "Type 2 business activity" is defined for the purposes of
chapter 7A to mean the provision of specified services by the following
local governments: Caboolture Shire Council; Cairns City Council;
Caloundra City Council; Hervey Bay City Council; Ipswich City Council;
Logan City Council; Mackay City Council; Maroochy Shire Council; Noosa
Shire Council; Pine Rivers Shire Council; Redland City Council;
Rockhampton City Council; Thuringowa City Council; Toowoomba City
Council; and Townsville City Council.
PART 3--PUBLIC BENEFIT ASSESSMENT OF TYPES
1 and 2 BUSINESS ACTIVITIES
Division 1--Subject matter of public benefit assessments
Section 458D provides for the matters to be addressed by a public benefit
assessment of a Type 1 business activity. The assessment is required to
review the appropriateness of applying corporatisation, commercialisation
or full cost pricing to the activity and to conclude whether and to what extent
the benefits of applying these reforms would outweigh the costs.
Section 458E provides for the matters to be addressed by a public benefit
assessment of a Type 2 business activity. The assessment is required to
review the appropriateness of applying commercialisation or cost pricing or
corporatisation to the activity. A local government may also resolve that
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Local Government Legislation Amendment
corporatisation be considered. The assessment must conclude whether and
to what extent the benefits of applying these reforms would outweigh the
costs.
Section 458F sets out the meaning of corporatisation of a significant local
government business activity for the purposes of conducting a public benefit
assessment. Corporatisation involves the establishment of a separate legal
entity which provides goods and services on a commercial basis, and
community service obligations if goods and services are not provided on a
commercial basis.
In addition, for the purposes of a public benefit assessment,
corporatisation includes the question of amounts equivalent to State taxes
and local government rates to be paid by the entity and retained by the local
government. It must also include the payment of Commonwealth taxes.
Section 458G sets out the meaning of commercialisation of a significant
local government business activity for the purposes of chapter 7A.
Commercialisation involves the activity being carried on by a business unit
of the local government which provides goods and services on a
commercial basis, and community service obligations if goods and services
are not provided on a commercial basis.
In addition, for the purposes of a public benefit assessment,
Commercialisation includes the retention by the local government of
amounts equivalent to Commonwealth and State taxes and local
government rates.
Section 458H sets out the meaning of full cost pricing for the purposes of
chapter 7A. Full cost pricing is defined to mean that the prices charged by a
significant local government business activity for goods and services take
account of the full cost of providing the goods or services.
Division 2--Content of public benefit assessment report
Section 458I sets out the matters to be addressed in a public benefit
assessment report. The report is required to include a conclusion on
whether or not, and if so to what extent, the benefits of applying the reforms
considered under section 458D or 458E would outweigh the costs. It must
also include recommendations on how the business activity should be
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Local Government Legislation Amendment
carried on and a proposed timetable for implementing any recommended
changes, if changes are recommended.
Division 3--Local government to undertake assessments
Section 458J provides for the undertaking of a public benefit assessment
and the preparation of a public benefit assessment report for each significant
business activity.
Section 458K provides for a local government to decide by resolution, for
each of its significant business activities, the process for the public benefit
assessment and the requirements for the report of the assessment. The
resolution is required to state the consultation process to be used in the
assessment.
Section 458L prescribes the timing for the public benefit assessments and
reports. The assessment report on a significant business activity must be
completed before 30 June 1997 or a day approved by the Minister which is
not later than 30 September 1997. It also provides for the public benefit
assessment report to be presented to a meeting of the local government as
soon as practicable after the report is completed.
Section 458M provides that a regulation may prescribe the requirements
for public benefit assessments and the reports of the assessments.
It is intended that before a regulation is made the Department of Local
Government and Planning and Treasury will publish a guideline for the
carrying out of assessments and the preparation and form of reports. It is
proposed that the regulation will adopt the guidelines and that the guideline
will include amongst other things the following matters that the Competition
Principles Agreement requires for a public benefit assessment--
(a) legislation relating to ecologically sustainable development;
(b) social welfare and equity considerations including community
service obligations;
(c) legislation of policy about matters such as occupational health and
safety, industrial relations and access and equity issues;
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Local Government Legislation Amendment
(d) economic and regional development, including employment and
investment growth;
(e) the interests of consumers;
(f) the competitiveness of Australian business;
(g) the efficient allocation of resources.
Clause 65 amends section 493 by reinforcing that a local law policy
binds the local government and the community.
An example of the intended operation of local laws and local law policies
is as follows--
� Model Local Law No.6 "Keeping and Control of Animals"
grants the power for a local law policy to prescribe minimum
standards for the keeping of certain animals, with the local law
policy setting the maximum penalty for an offence under a local
law policy, eg, a local law policy may set the maximum number
of dogs kept by a person in a residential area be limited to two
(2).
� When a person is found to be keeping more than two dogs, where
the limit is set by the local law policy, then that person could be
prosecuted under the provisions of the local law policy.
In effect the amendment clarifies that if a person was in breach of the
requirement that no more than two (2) dogs could be kept on the premises,
then the person may be subject to proceedings taken by the local
government and the payment of a penalty.
Clause 66 amends section 552 by extending the expiry date of Chapter 9,
part 5 "Local Government Control Over Levee Banks" to 31 March 1999.
Clause 67 inserts new subsections in section 569 in order to clarify the
law relating to the making of utility charges and provide suitable future
options for the making of utility charges.
Subsection (7) provides a local government has been and will be able to
from commencement of section 569 of the Local Government Act 1993,
make and levy a utility charge for services supplied in a period spanning
two consecutive financial years. For example, a local government may
legally make and levy utility charges for water where it is supplied,
measured by meter or other device, during a period from say, 30 April 1998
to 30 April 1999.
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Local Government Legislation Amendment
It further provides a local government may make and levy different utility
charges for different periods in 1 or more financial years and can decide
how these charges are to be apportioned.
Non-exhaustive examples of different situations and application of these
provisions are given in the legislation.
Subsection (8) limits to two, the number of consecutive financial years a
charge may span.
Subsection (9) provides that utility charges made and levied by a decision
of the local government under subsection (7) are lawfully made and levied
in accordance with the Act.
Subsection (10) provides subsections (7) to (9) will apply despite the
references in sections 559 and 560 to the levying and making of rates and
charges "for a financial year" which if read in isolation, infer a charge can
not be for a period spanning different financial years.
Subsection (11) provides that where a local government nominates a
particular day to which consumption of a utility service is to be measured
and charged on the basis of that measure, a metre or other measuring device
is deemed to have been read on that day if the actual date of reading is
within 2 weeks before or after the day. An example is given in the
legislation.
Subsection (12) provides a local government's ability to make local laws
to regulate and administer a utility service is not restricted by subsection
(11).
Clause 68 clarifies the actions a local government may take when the
terms under which a rate is being paid by instalments under section 611 are
not met by the ratepayer. In particular, that on default of instalment terms,
interest may be charged only from the time of default.
Under the Act, rates are payable to a local government within either 30 or
60 days from the issue of a rate notice. The rate notice must specify
whether the period is 30 days or 60 days.
If a rate is not paid in the specified period, the rate becomes "overdue"
and a local government may commence legal action for recovery and/or
charge interest on the unpaid amount. Interest accrues until the rate is paid.
The Act also enables a local government to allow a rate to be paid by
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Local Government Legislation Amendment
instalments (section 611) or other arrangements rather than requiring full
payment within 30 or 60 days.
A local government can, at its discretion, if the terms of the instalment or
other arrangement are not met treat the unpaid instalment(s) as an overdue
rate. The local government can then commence action for recovery and/or
charge interest on the rate.
A local government may charge a premium for allowing payment of a
rate by instalment to, for example, cover administrative costs or the cost of
the receipt of revenue being deferred.
There has been debate about whether, on default by a ratepayer of an
instalment or payment arrangement, a local government should charge
interest on, for example, only the amount of payment which has been
defaulted from the time of default or, on the whole of the original rate from
the date it would have been payable if there were no instalment arrangement,
that is, 30 or 60 days after the rate notice for the whole amount was issued.
It is considered a ratepayer who defaults on an instalment arrangement
should only be charged overdue interest from the time of default as:
1. until default, the ratepayer has honoured the terms of the
arrangement;
2. these provisions are primarily intended to assist ratepayers facing
financial difficulty in the payment of rates; and
3. a premium may be charged as part of the instalment arrangement.
A local government is given the discretion to apply the section to only the
amount of defaulted instalment or to that and remaining future instalments.
Clause 69 facilitates those amended provisions which provide that rates
being paid by instalment or other arrangements under sections 611, 627 and
628 are not overdue rates except in accordance with arrangements made
under those sections.
Clause 70 amends section 619 to clarify the intent of the Act that a local
government may offer prizes through a lottery as an incentive to encourage
prompt payment of rates.
The need for the clarification has arisen from legal advice subsequent to
the introduction of the Act which indicates the original provision was
subject to the Art Unions and Public Amusements Act 1992.
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Local Government Legislation Amendment
These clarification provisions will expire on 30 June 1998 during which
time it is intended longer term arrangements, if any, will be considered and
incorporated in the Art Unions and Public Amusements Act 1992 or other
future legislation governing such activities.
Clause 71 amends section 627 to provide that if the terms of an
arrangement for payment of a rate are not met, a local government may take
action to recover the outstanding payment(s) and charge interest until the
payment is made. The local government may take this action in respect of
only the overdue payments(s) or the overdue and remaining payments
under the arrangement.
Further explanation of the intent of the provision is provided in the
explanatory note for clause 68 above.
Clause 72 amends section 628 to provide where the terms of an
arrangement for the deferral of the payment of a rate are not met, a local
government may take action to recover the outstanding payment and charge
interest until the payment is made. The local government may take this
action in respect of only the overdue payments(s) or the overdue and
remaining payments under the arrangement.
Further explanation of the intent of the provision is provided in the
explanatory note for clause 68 above.
Clause 73 and 74 deal with the provisions of the Act enabling a local
government to sell land on which a rate(s) has remained unpaid for 3 years
or more (3 months in the case of a mining claim).
Clause 73 clarifies section 638 so that all overdue rates on the land must
be paid to end the sale procedure not just the rate(s) which has been unpaid
for longer than 3 years.
Clause 74 clarifies section 640 so that the reserve price for sale of the
land must be the higher of the unimproved capital value or the amount of all
overdue rates on the land not just the rate(s) unpaid for more than 3 years.
Clause 75 extends the expiry date of s 697 of the Act to 30 June 1998.
The section enables a local government to make a local law giving an
authorised person authority to enter a place, including a structure used for
residential purposes, to seize a dangerous dog.
Clause 76 amends section 721 to provide that the Minister may exempt a
local government from developing and administering an EEO Management
Plan. A regulation may provide criteria which the Minister must consider
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Local Government Legislation Amendment
before deciding to grant an exemption to a local government. For example,
the number of staff employed by a local government or joint local
government.
Clause 77 amends section 774 to provide that a senior executive
employee for a local government does not have to make the compulsory
employee superannuation contributions required by the Act if employees on
agreement with their local governments choose to have the local
government make an equivalent contribution or an employee may negotiate
that the local government make additional superannuation payments.
Clause 78 inserts a new section 792A giving the chief executive officer
of the Department of Local Government and Planning power to approve
forms used under this Act.
Clause 79 inserts a new section 793A which provides for the making of
a regulation declaring the existing names and boundaries of electoral wards
in the City of Brisbane. The regulation must be made on or before 1 March
1997.
Clause 80 replaces the provisions of section 802 with a new section 802.
If a local government has not published a notice by 1 July 1999 advising
that a local law has been reviewed and does not contain redundant
provisions, that particular local law will automatically be repealed on 1 July
1999. The extension of time in which a local government is required to
review its local laws has been granted to allow local governments to take
account of the provisions of the national competition policy.
Clause 81 amends section 803 to provide for the provisions contained in
Division 3 of Chapter 15 Part 1 dealing with local laws and local law
policies to expire on 2 July 1999.
Clause 82 amends the heading to chapter 15.
Clause 83 amends the heading to chapter 15 part 1.
Clause 84 provides for the insertion of a new Division 5 into Chapter 15
Part 1 of the Act.
Division 5--Transitional and savings provisions for amendments under
the Local Government Legislation Amendment Act 1996
Section 810 is inserted to provide that the Shire of Rosalie is undivided
for the purpose of and from the 1997 triennial elections.
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Local Government Legislation Amendment
Section 811 provides confirmation that the water undertaking fund charge
of $130 per unit for consumers in the Capricorn Coast water area made by
the Livingstone Shire Council in its budget for the 1993/94 financial year
applied to the period from 1 July 1993 to the first week in April 1994, and
not to the period 1 July 1993 to 30 June 1994.
The effect of the section is that the Livingstone Shire council did not
charge for water services in the Capricorn Coast during the period from the
first week in April 1994 to 30 June 1994 in both its 1993-94 and 1994-95
budgets in the council's transition to a user pay system of charging despite
the manner in which the charge was represented on rate notices.
Section 812 provides that the electoral wards of the City of Brisbane in
force immediately before the commencement of the section remain the
electoral wards for the city for the 1997 triennial election.
Section 813 provides that Chapter 3 part 1 division 7 of the Local
Government Act 1993 as it stands before the commencement of the
amended section in this Bill is the applicable law for the implementation of a
report on a reference of a reviewable local government matter tabled in the
Legislative Assembly before the commencement of the new section.
Section 814 provides that where immediately before the commencement
of this section, the chief executive, under a regulation, approves a form for a
matter, the form is taken to have been approved, and therefore, validly made
under the new section 792A of the Act.
PART 3--AMENDMENT OF PUBLIC SERVICE ACT
1996
Clause 85 provides for the amendment of the Public Service Act 1996.
Clause 86 provides for the replacement of section 109(3)(d) so that the
meaning of "term appointee" under the Act does not include a Review
Commissioner under the Local Government Act 1993.
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Local Government Legislation Amendment
Schedule
MINOR AND CONSEQUENTIAL AMENDMENTS OF
Local Government Act 1993
These minor and consequential amendments to the Act are mechanical in
nature and relate to changes in terminology as a result of other amendments
contained in this legislation.
The original intent of the sections listed as amended in this Schedule has
not been altered by these amendments.
Amendments agreed to in Committee
1. After clause 29--
At page 71, after line 19--
insert--
`Amendment of s 171 (Disqualification and vacation of office for
certain offences)
29A. Section 171(1)--
insert--
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Local Government Legislation Amendment
`� section 190(8) (Requirements of councillors before acting in
office)
� section 355W(1) or (2) (Offences about returns).'.
Replacement of s 190 (Councillor's declaration of office)
29B. Section 190--
omit, insert--
`Requirements of councillors before acting in office
`190.(1) A person elected as a councillor must not act in the office until
the person--
(a) if elected as a councillor of the Brisbane City Council--makes a
declaration of office; or
(b) if elected as a councillor of another local government--
(i) firstly gives the chief executive officer of the local
government a return in the approved form;1 and
(ii) subsequently makes a declaration of office.
`(2) A person appointed as a councillor must not act in the office until the
person makes a declaration of office.
`(3) The return under subsection (1)(b)(i) must state the information the
person is required to give under section 355N2 relating to the disclosure
period for the election of the person to the extent that the person states the
information is readily available when giving the return.
`(4) The declaration of office must be in the following form--
`I, ............, having been elected/appointed as a councillor of the
Council of the City/Town/Shire of ............, declare that I will
faithfully and impartially fulfil the duties of the office to the best
of my judgment and ability.'.
`(5) The chief executive officer of the local government is authorised to
1 A return given under section 190(1)(b)(i) is part of the register kept under
section 355T (Registers of electoral gifts).
2 Section 355N (Gifts to candidates)
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Local Government Legislation Amendment
take the declaration.
`(6) The chief executive officer must keep a record of the taking of the
declaration.
`(7) The person ceases to hold office as a councillor if the person does
not comply with subsection (1) or (2) within 1 month after being elected or
appointed or a longer period allowed by the Minister.
`(8) The person must not give a return, under subsection (1)(b)(i),
containing particulars that are, to the knowledge of the person, false or
misleading in a material particular.
Maximum penalty for subsection (8)--100 penalty units.'.'.
2. After clause 44--
At page 80, after line 28--
insert--
`Amendment of s 260 (Disposal of deposits generally)
44A. Section 260--
insert--
`(1A) Despite subsection (1), a candidate's deposit must not be refunded
until the candidate has given the chief executive officer of the local
government the return the candidate is required to give under section 355N3
in relation to the candidate's disclosure period for the election.'.'.
3. After clause 63--
At page 92, after line 3--
insert--
`Insertion of new ch 5, pt 8
63A. Chapter 5--
insert--
`PART 8--DISCLOSURE OF ELECTION GIFTS
3 Section 355N (Gifts to candidates)
55
Local Government Legislation Amendment
`Division 1--Preliminary
`Definitions for pt 8
`355A. In this part--
"associated entity" means an incorporated or unincorporated body, or the
trustee of a trust, that--
(a) is controlled by 1 or more political parties; or
(b) operates wholly or mainly for the benefit of 1 or more political
parties.
"disclosure period"--
(a) for a candidate for an election--see division 2, subdivision 1; and
(b) for section 355Q,4 for an election--see division 2, subdivision 2.
"disposition of property" means a conveyance, transfer, assignment,
settlement, delivery, payment or other alienation of property, and
includes--
(a) the allotment of shares in a corporation; and
(b) the creation of a trust in property; and
(c) the grant or creation of a lease, mortgage, charge, servitude,
licence, power, partnership or interest in property; and
(d) the release, discharge, surrender, forfeiture or abandonment, at
law or in equity, of a debt, contract or chose in action, or of an
interest in property; and
(e) the exercise by a person of a general power of appointment of
property in favour of someone else; and
(f) a transaction by a person with intent to diminish, directly or
indirectly, the value of the person's own property and to increase
the value of someone else's property.
"gift" means the disposition of property or the provision of a service,
without consideration or for a consideration less than the full
consideration, but does not include--
4 Section 355Q (Gifts for third party expenditure for political purposes)
56
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(a) transmission of property under a will; or
(b) provision of a service by volunteer labour.
"prescribed amount" means an amount prescribed under a regulation but,
until a regulation is made, means--
(a) in sections 355N(2)(b)(iii) and 355O(1)5--$200; or
(b) in section 355Q(1)(b) and (6),6 definition "prescribed gift",
paragraph (c)--$1 000.
"prescribed period" means a period prescribed under a regulation but,
until a regulation is made, means 30 days.
"register", for a local government, see section 355T(1).7
"registered industrial organisation" means an organisation registered
under a law of the State, another State or the Commonwealth about the
registration of industrial organisations.
"relevant details", for a gift, means the value of the gift and when the gift
was made and--
(a) for a gift purportedly made on behalf of the members of an
unincorporated association--
(i) the association's name; and
(ii) unless the association is a registered industrial
organisation--the names and residential or business
addresses of the members of the executive committee
(however described) of the association; or
(b) for a gift purportedly made out of a trust fund or out of the funds
of a foundation--
(i) the names and residential or business addresses of the
trustees of the fund or other persons responsible for the
funds of the foundation; and
(ii) the title or other description of the trust fund or the name of
5 Section 355N (Gifts to candidates) and section 355O (Certain gifts not to be
received)
6 Section 355Q (Gifts for third party expenditure for political purposes)
7 Section 355T (Registers of electoral gifts)
57
Local Government Legislation Amendment
the foundation; or
(c) for a gift not mentioned in paragraph (a) or (b)--the name and
residential or business address of the person who made the gift.
"value", for a gift, means--
(a) if the gift is money--the amount of the money; or
(b) if the gift is property other than money--
(i) the market value of the property; or
(ii) if a regulation prescribes principles under which the value of
the property is to be determined--the value determined
under the principles; or
(c) if the gift is the provision of a service--
(i) the amount that would reasonably be charged for providing
the service if the service were provided on a commercial
basis; or
(ii) if a regulation prescribes principles under which the amount
that would reasonably be charged for providing the service is
to be determined--the amount determined under the
principles.
`Candidates
`355B. For this part, a reference to a candidate for an election is a
reference to a person who, at noon on the nomination day for the election, is
properly nominated for the election.
`Things taken to be done by political party
`355C. For this part, for a political party that is not a body corporate,
things done by or with the authority of members or officers of the party on
behalf of the party are done by or for a political party.
`Related corporations
`355D. For this part--
(a) a body corporate and any other body corporate related to it are
58
Local Government Legislation Amendment
taken to be the one person; and
(b) whether a body corporate is related to another body corporate
must be decided in the same way a corporation is decided to be
related to another corporation under the Corporations Law.
`Division 2--Disclosure periods
`Subdivision 1--Disclosure periods for candidates for elections
`Purpose of subdivision
`355E. This subdivision defines the disclosure periods for candidates for
elections.
`Disclosure period for candidates at previous elections
`355F.(1) This section applies if a candidate for an election (the "current
election") was a candidate for another election relating to any local
government the conclusion of which was within the relevant period before
the polling day for the current election.
`(2) The disclosure period for the candidate for the current election starts
at the end of the prescribed period after the conclusion of the most recent
election happening before the current election in which the candidate was a
candidate.
`(3) The disclosure period ends at the end of the prescribed period after
the conclusion of the current election.
`(4) In this section--
"relevant period" means the period prescribed under a regulation but, until
a regulation is made, means 4 years.
`Disclosure period for candidates at previous fresh elections
`355G.(1) This section applies if a person--
(a) was a candidate at a fresh election (the "previous election")
relating to a local government (the "first local government");
59
Local Government Legislation Amendment
and
(b) is a candidate for a subsequent election relating to any local
government (the "relevant election") up to and including the next
triennial election relating to the first local government.
`(2) Despite section 355F,8 the disclosure period for the candidate for the
relevant election starts at the end of the prescribed period after the
conclusion of whichever is the later of--
(a) the previous election; or
(b) a later election in which the candidate was a candidate before the
relevant election.
`(3) The disclosure period ends at the end of the prescribed period after
the conclusion of the relevant election.
`Disclosure period for new candidates
`355H.(1) This section applies if sections 355F, 355G and 355I9 do not
apply to a person who is a candidate for an election.
`(2) The disclosure period for the candidate for the election starts when
the first of the following happens or, if they happen at the same time, when
they happen--
(a) the person announces the person is to be a candidate in the
election;
(b) the person nominates as a candidate in the election.
`(3) The disclosure period ends at the end of the prescribed period after
the conclusion of the election.
`Disclosure period for certain candidates who are appointed
councillors
8 Section 355F (Disclosure period for candidates at previous elections)
9 Section 355F (Disclosure period for candidates at previous elections),
section 355G (Disclosure period for candidates at previous fresh elections) and
section 355I (Disclosure period for certain candidates who are appointed
councillors)
60
Local Government Legislation Amendment
`355I.(1) This section applies if a candidate for an election, when
nominating as a candidate, is an appointed councillor of a local government
to whom neither section 355F nor section 355G10 applies.
`(2) Despite section 355H, 11 the disclosure period for the candidate for
the election starts when the candidate was appointed a councillor.
`(3) The disclosure period ends at the end of the prescribed period after
the conclusion of the election.
`Subdivision 2--Disclosure period for third parties for elections
`Purpose of subdivision
`355J. This subdivision defines the disclosure period for section 355Q12
for an election.
`Disclosure period for s 355Q
`355K. For section 355Q, the disclosure period for an election--
(a) starts at the end of the prescribed period after the date of the
immediately preceding triennial elections for local governments
under section 217;13 and
(b) ends at the end of the prescribed period after the polling day for
the election.
`Subdivision 3--Transitional provisions for start of disclosure periods
`Transitional provisions
`355L.(1) Despite subdivisions 1 and 2--
10 Section 355F (Disclosure periods for candidates at previous elections) and
section 355G (Disclosure period for candidates at previous fresh elections)
11 Section 355H (Disclosure period for new candidates)
12 Section 355Q (Gifts for third party expenditure for political purposes)
13 Section 217 (Date of triennial elections)
61
Local Government Legislation Amendment
(a) if a disclosure period would otherwise start before 1 January
1997, it starts on 1 January 1997; and
(b) for a candidate to whom section 355H14 would otherwise apply,
the disclosure period for a 1997 triennial election starts on
1 January 1997, regardless of the day of the candidate's
announcement of candidature or nomination as a candidate; and
(c) for a candidate to whom section 355I15 would otherwise apply,
the disclosure period for a 1997 triennial election starts on
1 January 1997, regardless of when the candidate was appointed a
councillor.
`(2) This subdivision expires on 1 January 2001.
`Division 3--Disclosure of gifts
`Subdivision 1--Disclosure by candidates for elections
`Definitions
`355M. In this subdivision--
"candidate's campaign committee", for a candidate for an election, means
a committee formed to help the candidate's campaign in the election
but does not include a committee that is recognised by a political party
as being part of the political party.
"gifts received by a candidate for an election" includes gifts received by
the candidate's campaign committee for or on behalf of the candidate.
`Gifts to candidates
`355N.(1) This section applies to gifts received by a candidate for an
election during the candidate's disclosure period for the election but not to a
gift made in a private capacity to the candidate, for the candidate's personal
use, that the candidate has not used, and does not intend to use, solely or
14 Section 355H (Disclosure period for new candidates)
15 Section 355I (Disclosure period for certain candidates who are appointed
councillors)
62
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substantially for a purpose related to any election.
`(2) Each candidate for the election must, within 3 months after the
conclusion of the election, give to the chief executive officer of the local
government to which the election relates a return, in the approved form,
stating--
(a) whether the candidate received any gifts to which this section
applies; and
(b) if so--
(i) the total value of all of the gifts; and
(ii) how many persons made the gifts; and
(iii) the relevant details for each gift made by a person to the
candidate, if the total value of all gifts made by the person to
the candidate during the disclosure period is the prescribed
amount or more.
`Certain gifts not to be received
`355O.(1) It is unlawful for a candidate for an election, or a person acting
on behalf of a candidate for an election, to receive, during the disclosure
period for the candidate for the election, a gift made to or for the benefit of
the candidate the value of which is the prescribed amount or more unless--
(a) the relevant details for the gift are known to the person receiving
the gift; or
(b) when the gift is made--
(i) the person making the gift gives to the person receiving the
gift details of the gift; and
(ii) the person receiving the gift has no reasonable grounds to
believe that the details given are not the relevant details for
the gift.
`(2) If a person receives a gift that, under subsection (1), it is unlawful for
the person to receive, an amount equal to the value of the gift--
(a) is payable by the person to the local government to which the
election relates; and
(b) may be recovered by the local government as a debt owing to the
63
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local government by action in a court of competent jurisdiction
against the person.
`(3) For subsection (1), a person who is a candidate in an election
remains a candidate for the prescribed period after the conclusion of the
election.
`(4) For this section, 2 or more gifts made by the one person to or for the
benefit of the one candidate, are to be treated as 1 gift.
`(5) In this section--
"person acting on behalf of a candidate for an election" includes the
candidate's campaign committee for the election.
"person making a gift" includes an unincorporated association on whose
behalf a gift is made.
`Chief executive officer to give reminder notice to candidates
`355P.(1) This section applies if a candidate for election has not given the
return the candidate is required to give for the election under section 355N.16
`(2) Within 2 months after the conclusion of the election, the chief
executive officer to whom the return must be given must give in writing the
information mentioned in subsection (3) to the candidate.
`(3) The information is--
(a) a reminder that the candidate is required to give the return within 3
months after the conclusion of the election; and
(b) the following provisions, or a general outline of them, to the
extent they may be relevant to the candidate--
� section 171 (Disqualification and vacation of office for
certain offences)
� section 260(1A) (Disposal of deposits generally)
� section 355N (Gifts to candidates)
� section 355W (Offences about returns)
� section 355Y (Obtaining of information and completion of
16 Section 355N (Gifts to candidates)
64
Local Government Legislation Amendment
returns).
`Subdivision 2--Disclosure by third parties for elections
`Gifts for third party expenditure for political purposes
`355Q.(1) This section applies if, during the disclosure period for this
section17 for an election (the "relevant election") relating to a local
government (the "relevant local government")--
(a) a person (other than a political party, an associated entity or a
candidate for the election) incurs or has incurred expenditure for a
political purpose about an election or elections relating to the
relevant local government; and
(b) the total amount of all the expenditure mentioned in paragraph (a)
is the prescribed amount or more; and
(c) the person receives a gift that is a prescribed gift in relation to the
relevant local government.
`(2) The person must, before the end of 3 months after the conclusion of
the relevant election, give to the chief executive officer of the relevant local
government a return, in the approved form, stating the relevant details for all
gifts that--
(a) are prescribed gifts in relation to the relevant local government;
and
(b) are received by the person during the disclosure period.
`(3) For subsection (1), a person does not include persons appointed to
form a committee to help the campaign in an election of a candidate who
has been nominated for election by the registered officer of a political party
if the campaign committee is recognised by the political party as being part
of the political party.
`(4) Expenditure for a political purpose relating to 2 or more local
governments is taken to have been incurred for a political purpose about an
election relating to each local government.
`(5) In this section, 2 or more gifts made, during the disclosure period for
17 The disclosure period for this section is defined in section 355K.
65
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this section for an election, by the one person to another person are to be
treated as 1 gift.
`(6) In this section--
"expenditure", for a political purpose, means expenditure for 1 or more of
the following--
(a) publication by any means (including radio or television) of
election matter;
(b) public expression of views on an issue in an election;
(c) a gift to a political party;
(d) a gift to a candidate in an election;
(e) a gift to a person on the understanding that the person or someone
else will apply, either directly or indirectly, the whole or a part of
the gift for a purpose mentioned in paragraph (a), (b), (c) or (d).
"prescribed gift", in relation to a relevant local government, means a gift--
(a) intended by the giver to be used by the receiver, either wholly or
in part, to enable the receiver to incur expenditure for a political
purpose or to reimburse the receiver for incurring expenditure for
a political purpose; and
(b) used, either wholly or partly, for a political purpose about 1 or
more elections relating to the relevant local government; and
(c) the value of which is the prescribed amount or more.
`No requirement to give return if no further gifts to disclose
`355R.(1) This section applies to a person if--
(a) the person gives a return relating to an election disclosing gifts
under section 355Q 18 to a chief executive officer of a local
government; and
(b) apart from this section, because of a later election, the person
would be required to give another return under section 355Q to
the chief executive officer of the same local government; and
18 Section 355Q (Gifts for third party expenditure for political purposes)
66
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(c) the other return, if given, would disclose no other gifts.
`(2) The person is not required to give the other return.
`Subdivision 3--Amendment of returns
`Amendment of returns
`355S.(1) A person who has given a return under this part to the chief
executive officer of a local government may at any time apply to amend the
return to correct an error or omission.
`(2) An application under subsection (1) must--
(a) be signed by the applicant; and
(b) state particulars of the amendment; and
(c) be given to the chief executive officer of the local government.
`(3) The chief executive officer must--
(a) permit the applicant to amend the return in accordance with the
application; and
(b) record in the register particulars of the date and time of the
amendment.
`(4) The amendment of a return under this section does not affect the
liability of a person to be convicted of an offence under section 355W(2)19
committed before the amendment.
`Division 4--Registers
`Registers of electoral gifts
`355T.(1) The chief executive officer of a local government must keep,
for the local government, a register of electoral gifts (the "register").
`(2) The register must include the following--
(a) all returns given to the chief executive officer under this part or
19 Section 355W (Offences about returns)
67
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section 190;20
(b) applications made to the chief executive officer under
section 355S;21
(c) copies of information given by the chief executive officer under
section 355V(2);22
(d) statutory declarations given to the chief executive officer under
section 355V(5);
(e) copies of notices given by the chief executive officer under section
355Y(3);23
(f) particulars given to the chief executive officer after a request made
under section 355Y(3);
(g) notices given to the chief executive officer under section 355Y(5).
`Access to registers
`355U.(1) A local government's register is open to inspection.
`(2) A person must not knowingly disclose information obtained from
the register if it is not a true copy, or a fair summary, of particulars in the
register.
Maximum penalty for subsection (2)--20 penalty units.
`Queries on contents of register
`355V.(1) A person who suspects, or believes, on reasonable grounds
that a return given to the chief executive officer of a local government under
this part has an error or omission, may inform the chief executive officer.
`(2) The chief executive officer must immediately take reasonable steps
to inform the person who gave the return about the suspicion or belief.
`(3) The person who gave the return must, within 30 days of being
20 Section 190 (Requirements of councillors before acting in office)
21 Section 355S (Amendment of returns)
22 Section 355V (Queries on contents of register)
23 Section 355Y (Obtaining of information and completion of returns)
68
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informed, establish whether the return should be amended to make it a true
record of fact.
`(4) If the person establishes that the return should be amended, the
person must apply to the chief executive officer to amend the return to
correct the error or omission.24
`(5) If the person establishes the return does not need to be amended, the
person must--
(a) complete a statutory declaration to the effect that the particulars in
the return are a true record of fact; and
(b) give the statutory declaration to the chief executive officer.
`Division 5--Miscellaneous
`Offences about returns
`355W.(1) A person must give a return the person is required to give
under division 325 within the time required by the division.
Maximum penalty--20 penalty units.
`(2) A person must not give a return the person is required to give under
division 3 containing particulars that are, to the knowledge of the person,
false or misleading in a material particular.
Maximum penalty--
(a) if the person is required to give the return as a
candidate--100 penalty units;
(b) if paragraph (a) does not apply--50 penalty units.
`(3) A person (the "first person") must not give to another person who
is required to give a return under division 3 or section 19026 information to
which the return relates that is, to the knowledge of the first person, false or
misleading in a material particular.
24 Section 355S (Amendment of returns) provides for applications to amend returns.
25 Division 3 (Disclosure of gifts)
26 Section 190 (Requirements of councillors before acting in office)
69
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Maximum penalty--20 penalty units.
`(4) A prosecution for an offence against a provision of this section may
be started at any time within 4 years after the offence was committed.
`(5) If a person is found guilty of an offence under subsection (1), a court
may, as well as imposing a penalty under the subsection, order the person to
give the relevant return within a time stated in the order.
`(6) If a person is found guilty of an offence under subsection (2), a court
may, as well as imposing a penalty under the subsection, order the person to
pay, within a time stated in the order, to a local government an amount equal
to the amount of the value of any gifts made to, or for the benefit of, the
person and not disclosed in a return.
`Records to be kept
`355X.(1) A person who makes or receives a relevant record for an
election must keep the record for at least 4 years after the conclusion of the
election unless the record, in the normal course of business or
administration, is transferred to someone else.
Maximum penalty--20 penalty units.
`(2) In this section--
"relevant record", for an election, is a document or other thing that is or
includes a record about a matter particulars of which--
(a) are, or could be, required to be stated in a return under division
327 about the election; or
(b) evidence that the giver of a gift had an intention mentioned in
section 355Q(6),28 definition "prescribed gift", paragraph (a).
`Obtaining of information and completion of returns
`355Y.(1) A person who is required to give a return under division 329
must--
27 Division 3 (Disclosure of gifts)
28 Section 355Q (Gifts for third party expenditure for political purposes)
29 Division 3 (Disclosure of gifts)
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(a) take all reasonable steps to obtain the particulars required to
complete the return; and
(b) complete the return to the extent that it is possible with the
particulars obtained.
Maximum penalty--20 penalty units.
`(2) The return must state whether the return is complete as required by
division 3 and, if not complete, state--
(a) the nature and type of particulars the person has not been able to
obtain; and
(b) the reasons why the person has not been able to obtain the
particulars; and
(c) if the person believes, on reasonable grounds, that another person
whose name and address the person knows can give the
particulars--that belief and the reasons for it and the name and
address of the other person.
`(3) If a return contains a statement mentioned in subsection (2)(c), the
chief executive officer of the local government who receives the return must
give a written notice to the person named in the statement asking the person
to give the chief executive officer the particulars the person knows.
`(4) Subsection (5) applies if, at any time, within 4 years after the
conclusion of an election, a person, who has made a statement under
subsection (2) in a return about the election that the return is not complete,
obtains information or particulars relevant to the return that the person was
not able to obtain before completing the return.
`(5) The person must give to the chief executive officer of the local
government to whom the return was given a written notice of the
information or particulars obtained.
Maximum penalty for subsection (5)--20 penalty units.
`Attempts to commit offences
`355Z.(1) A person who attempts to commit an offence against this part
commits an offence.
Maximum penalty--half the maximum penalty for committing the offence.
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`(2) The Criminal Code, section 430 applies to subsection (1).
`Non-compliance with part does not affect election
`355ZA.(1) A failure of a person to comply with a provision of this part
for an election does not invalidate the election.
`(2) Without limiting subsection (1) but subject to section 171,31 if a
candidate who is elected at an election fails to comply with a provision of
this part for the election, the failure does not invalidate the election of the
candidate.
`Division 6--Evidence
`Evidentiary provisions
`355ZB.(1) This section applies to a proceeding under this part.
`(2) A certificate purporting to be signed by the chief executive officer of
a local government and stating any of the following matters is evidence of
the matter--
(a) a stated document is an application, declaration, notice or return
given or kept under this part, or a copy of it;
(b) on a stated day, a stated person was given a stated notice, under
this part.'.'.
� State of Queensland 1996
30 The Criminal Code, section 4 (Attempts to commit offences)
31 Section 171 (Disqualification and vacation of office for certain offences)