Northern Territory Explanatory Statements

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LOCAL GOVERNMENT BILL 2008

140

Attachment B
2008
LEGISLATIVE ASSEMBLY OF THE
NORTHERN TERRITORY

MINISTER FOR LOCAL GOVERNMENT

LOCAL GOVERNMENT Bill 2008
(Serial No 129)


EXPLANATORY STATEMENT


GENERAL OUTLINE

This Bill provides for a new Local Government Act.

The purpose of this Bill is to provide a refreshed, updated Act for the commencement of new local government. Local government in the Northern Territory is being reformed by moving from sixty-one local government bodies to nine shire councils and four municipal councils.

This Bill establishes the framework for provision and regulation of local government under the new system.




NOTES ON CLAUSES


Preamble

The preamble describes the premise on which the Bill is placed. It sets the scene in which the Bill has come about and puts into context the values and ideals underpinning the new legislative framework.

1.
This clause describes local government as a distinct and essential sphere of government. This means that the Bill recognises local government as an important, discrete domain of government, giving recognition and legitimacy to local government.

2.
This clause refers to the diversity within the Northern Territory and the need for local government to be flexible and adaptable to the diverse interests and needs of the many communities within the Territory. This recognises the variety across the Territory and that differing circumstances may require a flexible approach. This clause also refers to our system of local government needing to be comprehensive, democratic, responsive and accountable.

3.
Recognition and respect for the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) and the Native Title Act 1993 (Cth), are declared in this clause, making it clear that the delivery of local government services must be in harmony with those laws.

4.
This clause explains that the legislative framework established by the Act aims to:

a) create a democratic and effective system of local government, recognising the diversity across the Territory. It provides for Territory-wide coverage and the means to effect a system that delivers the services required to communities;

b) provide councils with wide powers to act in the best interests of their local communities and to act for the advancement of those communities. This reinforces the notion of improvement, and places emphasis on the communities;

c) enable councils to play a broad role in promoting the social, economic, environmental and cultural well-being of communities. This is achieved by sound, wide-ranging planning and implementation processes;

d) impose high standards of ethical conduct on council members to ensure that they properly and ethically represent the interests of the residents of the area in which the council operates;

e) place on council high standards of governance (that is, representing the people), service delivery (that is, providing services for the people who they govern), asset management, and financial accountability in providing those services and governance; and

f) require councils to assist in the participation in local government by their local communities so that people, organisations or interest groups will be encouraged to have some input into the governance of the local government area.



Chapter 1 Preliminary

Part 1.1 Short title and commencement

1 Short title
This is a formal clause which provides for the citation of the Bill.
The Bill when passed may be cited as the Local Government Act 2008.

2 Commencement
The Act will commence on 1 July 2008 except for section 257 which will commence on the date of assent to this Act.

Part 1.2 Interpretation

3 Definitions

Clause 3 creates definitions necessary for the Act.

4. Associates

Clause 4 defines the word Associate for the purposes of the Act.

Part 1.3 Agency

5 Agency

Clause 5 provides that an Administrative Arrangements Order will allocate the department or departmental unit bearing responsibility for administering this Act, and it will be referred to as the Agency. Clause 5 also provides that where the Act confers a particular power or function to the Agency, the power or function is to be exercised by the Chief Executive Officer of the Agency (or his or her delegate).

Part 1.4 Act to bind Territory etc

6 Act to bind the Territory and other jurisdictions

Clause 6 confirms that the Act binds the Territory and its instrumentalities, and all other jurisdictions and their instrumentalities.

Chapter 2 System of local government

Part 2.1 Local government areas

7 Local government system

Clause 7(a) describes how the Territory is to be divided into local government areas and nominates considerations such as geography, population and the potential viability of a council established in a geographic area.

Clause 7(b) confirms that a council constituted for a particular area is responsible for the government and management of that area at the local level within the confines of that area.

8 Municipalities and shires

Clause 8 states that municipalities and shires are classified according to the density of population and the degree of urbanisation in the area.

Part 2.2 Constitutive powers

9 Power to establish local government etc

Clause 9(1) provides that the Administrator may exercise certain powers by publishing a notice in the Northern Territory Government Gazette. The Administrator may:

(a) declare that a part of the Territory has become a local government area or has ceased to become a local government area. This allows for the creation and consolidation of local government areas;

(b) declare a local government area a municipality or a shire or change the nature of a local government area between a municipality and a shire;

(c) name the shire or municipality or change the name of the shire or municipality;

(d) name the council for a local government area or change the name of a local government area;

(e) define or change the boundaries of local government areas to respond, for instance, to changes in the resident population;

(f) create or abolish wards. This may be required, for example, to suit the needs of the residents in a particular council area by ensuring proper representation;

(g) define or change the boundaries of a ward or wards. This may be done, for example, to respond to changes in the resident population of both the council and the wards;

(h) assign or alter a name for a ward for purposes of identification of the ward as a voting area in council elections and as a method of describing the area which an elected councillor represents;

(i) change the number of representatives to be elected (at the next election). For example, a ward may require more than one member in order to properly represent the resident population and, if so, the Administrator can change the number of representatives to be elected at the next election;

(j) correct an error or omission in an earlier notice sent out under this section

Clause 9(2) confers on the Minister the same powers as the Administrator except that the Minister cannot constitute or abolish a local government area. This means that the Minister can, for instance, change the name of a local government area, or create or abolish wards.

Clause 9(3) provides that a local government area does not have to be one complete area but may be different areas of land that are not connected. It may be that a local government area excludes, for instance, a town in the area which is governed by its own council.

10 Consequential adjustment of rights and liabilities

Clause 10(1) allows the Minister to transfer the assets and liabilities of an existing council if a change in the local government area by alteration or abolition requires that those assets and liabilities be undertaken by another council.

Clause 10(2) provides that where the Minister exercises power under Clause 10(1) involving the transfer of land, the Registrar General must register the change of interest in land.


Part 2.3 Role, functions and objectives of councils

11 Principal role of council
The role of a council is:
(a) This clause generally defines the role of a council. First, the role of a council is to represent the interests of the community and to be an informed and responsible decision maker for the community it represents.

(b) A council’s role is to develop a strong and cohesive community and provide community resources in a fair fashion having regard to spreading those resources across the community, but doing so in a way that is sustainable.

(c) A council’s role is to provide public facilities and services

(d) A council’s role is to take a proactive and developmental stance in relation to improving the quality of life for its residents.

(e) A council’s role is to represent the interests of its area to the wider community such as to the Northern Territory Government, the Federal Government and to other councils.

(f) A council’s role is to carry out the functions given to it under the Act and to exercise the powers given to it under the Act.

12 Functions of a council

The functions of a council include:
(a) Whereas clause 11 above defines the main roles of a council, this clause develops in more detail the functions of a council, including planning for the future requirements of its area in relation to local government services.

(b) Another function of a council is to provide services and facilities for the benefit of its area not only for its residents but also for visitors.

(c) Another function of a council is to consider the well-being of not only its residents as a whole, but also those that make up the whole, that is, individuals and groups.
(d) Another function of a council is to take such measures as it can to protect its area from natural and other hazards or, if those hazards are a feature of the area, to lessen the effect of them upon the residents of the area.

(e) Another function of a council is to ensure that the development of facilities and services within the area is done so in a sustainable and responsible way.

(f) Another function of a council is to have regard to those parts of its area which might be a prime location for particular industries or commerce and to develop, where applicable, areas that will attract tourists.

(g) Another function of a council is to establish or support organisations or developmental programmes that will benefit the council area.

(h) Another function of a council is to manage and develop its resources for the benefit of the area.

(i) In addition, there may be specific functions allocated to a council under this or other Acts and such a function is taken to be also in this list.

13 Objectives of a council

A council also has objectives as follows:
(a) An objective of a council is to provide a proper and accountable government at the local level.

(b) A council needs to be aware of, and to respond to, the needs of its residents expressed either as individuals or groups within its area.

(c) Another objective of a council is to cooperate with Territory, State and Federal governments. For example, this could be in respect of being able to achieve the provision of services for the benefit of residents and to obtain grants or dispensations from the larger governments to assist those in the area.

(d) This clause indicates that council should have a proper emphasis on environmentally sustainable development and a proper balance between economic social environmental and cultural considerations.

(e) Council is reminded by this clause that another objective is to place a high value on its role of providing service to the community.

(f)This clause makes it an objective of the council to use its resources in a fair, efficient and effective way.

(g) This clause makes it an objective of the council to provide appropriate services to its residents and to ensure that those residents have fair and equitable access to the services that the council provides.

(h) This clause makes it an objective of the council to act at all times in the best interests of the whole community.

14 Operations outside area

(1) This clause allows a council to provide services outside its own area but directs that a council cannot exercise its regulatory powers outside its own area except by mutual agreement with the council in whose area the powers are to be exercised. This means that, for instance, a council that had established an emergency services organisation could assist residents outside its own area in an emergency.
(2) This clause provides for an exception to 14(1) so that a council may use its powers outside its own area (such as enforcing a by-law) without the agreement of another council if the circumstances which gave rise to that power occurred within the council’s area.

Example
A dangerous dog attacks a child in the area of council A and becomes liable to seizure and destruction under the by-laws of that council. The dog is removed to the area of council B. In this case, council A may (without the agreement of council B) have the dog seized and destroyed in the area of council B.


Chapter 3 Planning at the regional and local level
Part 3.1 Regional management plans

15 Division of Territory into regions
This clause creates the concept of various regions within the Territory. Those regions may cover the geographical area of more than one council. There will be three regions in the Northern Territory.

16 Requirement for, and consultative nature of, regional management plan
(1) Each of the regions established requires a regional management plan to be developed for the region.

(2)This clause stipulates that consultation is an integral part of a regional management plan. In developing a regional management plan there must be consultation between interested councils in the region and between those councils and the Agency.

(3)This clause means that a municipal council may participate in the consultation process for developing a regional management plan, but it is not required to.

Note
The note explains that an interested council is a shire council in the region and any municipal councils in the region that have chosen to participate in the consultation process.

(4)This clause provides that a municipal council is bound by a regional management plan, but only to an extent agreed by the council.

(5) This clause provides that LGANT may participate in the consultation process for the development of a regional management plan.

17 Content of regional management plan
(1) (a) The regional management plan that is developed for a region must address the provision of local government service delivery within each region and consider opportunities and challenges for the provision of those services within each region, the administrative and regulatory framework that would be required to enable councils within the region to deliver the required local government service, and suggest ways to improve local government service delivery within a region by developing a cooperative framework between councils in the region or councils and government agencies or other organisations that operate in the region.

(b) In relation to shire councils within the region, the regional management plan must define the core local government services in the region and where they are to be delivered within that region.

(2) The regional management plan may also provide for joint management of facilities within the region for the benefit of the residents within the region so, for example, that a region could contain sporting and cultural facilities developed jointly by the local councils in that region.

Examples
A regional management plan could provide for the joint management of a cemetery or a waste management facility for the mutual benefit of two or more areas – and perhaps for the formation of a council subsidiary to manage and operate the cemetery or waste management facility on behalf of the councils.

A regional management plan could provide for consultation and co-operation between a council or councils and the appropriate Land Council in accordance with a memorandum of understanding between them.

18 Term, revision and amendment of regional management plans
(1) Each regional management plan should look to providing direction for a region for a period of four years.

(2) At the end of the four year period, the regional management plan should be updated and replaced by another regional management plan for the region for the next period of four years and so on.

(3) It may be necessary to consider and implement an amendment to a regional management plan during the term of its operation and if so, the Agency may amend the plan after consultation with interested councils for the region and consultation with any other organisations or people that the Agency considers might be necessary.

19 Preparation and revision of regional management plans
(1) The responsibility for the preparation of regional management plans and revised regional management plans lies with the Agency responsible for the administration of this Act, but the Agency must collaborate with the interested councils in each region.

(2) The Department prepares a regional management plan (or a revised management plan) for a region as follows:

(a)-(d) the agency is required to consult with the councils within the region and any other interested bodies and persons, including LGANT (if LGANT wishes to be involved), and prepare from that process of consultation, a draft management plan for the region. That draft regional management plan will set a date for its commencement. At least four months prior to the planned commencement date the Agency is required to publish the plan on its website. It is also required to publish a notice on the website and in a newspaper circulating generally throughout the Territory seeking written representations from interested persons. Those who wish to comment must be given at least one month to do so. After considering any responses received within the relevant period the Agency, in consultation with the interested councils and LGANT (if LGANT wants to be involved), then prepares a final version of the regional management plan and is required to publish that final version on the Agency's website.

(3) The draft version of the regional management plan should also be provided by the Agency to any local councils within the particular region and those local councils should publish the draft regional management plan on their own websites. The effect of this is that the draft regional management plan obtains the widest exposure that is possible to those who will be affected by it.

(4) If a difference of opinion arises between the Agency and a council in relation to a draft regional management plan, and the dispute cannot be resolved by agreement, then that dispute should be referred to the Minister.

(5) Should the above situation arise, the Minister has the authority to resolve the dispute and the regional management plan must reflect the Minister’s decision.

20 Agency to report annually on service delivery
(1) Every year the Agency (the Department) must report to the Minister as to the performance of a council in a region against the relevant regional management plan.

(2) After receiving a report from the Agency, the Minister must lay the report before the Legislative Assembly. This must be done within six sitting days of receipt of the report..

21 Public accessibility of regional management plans and related documents
(1) The Agency must make available on its web site any regional management plans, drafts of those plans and any related annual reports made to the Minister by the Agency in respect of a council’s performance, compared with the management plan for the region in which the council operates.

(2) Similarly, the regional management plan must also be made available on the website of a council within the region covered by the management plan.

Part 3.2 Municipal or shire plans

22 Municipal or shire plan
(1) Just as a management plan is required for a region that may contain more than one council, each council must individually have a plan for the area it administers.

(2) Such a plan prepared by a municipal council is to be called a municipal plan and for a shire council, a shire plan.

(3) A council is required to make its municipal or shire plan available on the council website.

23 Contents of municipal or shire plan

(1)(a) A municipal or shire plan must contain a plan for the delivery by the council of services within the area in accordance with the planning requirements that are specified in the relevant regional management plan. The municipal or shire plan must also contain the council’s budget.

(b) The municipal or shire plan must contain, or refer to, any long-term community or strategic plans that have been adopted by the council or a local board that are relevant to the period of operation of the municipal or shire plan, and details of the council's long-term financial plan and

(c) The municipal or shire plan must contain, or refer to, the council’s most recent assessment of; the adequacy of constitutional arrangements presently in force for the council under this Act and consider whether those constitutional arrangements provide the most effective form of representation for the residents in the area in which the council operates; the opportunities and challenges for the delivery of local government services within the council's area and the possibility of changing the administrative and regulatory framework for the delivery of those services in the period to which the plan relates and whether it is possible to improve the provision of local government services by a cooperative scheme with other councils, or government agencies and organisations.

(d) The municipal or shire plan must also define indicators for judging the standard of performance of the council.

(2) Addressing the financial, community or strategic plans presently in force for the council must be done at least once in the council’s term (four years) and, until that is done, the previous assessment is to be included in the municipal or shire plan.

(3) This clause explains that a plan or assessment is ‘incorporated by reference’ if it has been referred to in the municipal/shire plan and if the municipal/shire plan includes a link or reference to a website on which the plan or assessment can be viewed.

24 Annual review of municipal or shire plan
(1) The council is required to adopt its municipal or shire plan between 1 April and 31 July each year, and forward a copy of the plan to the Agency by 31 July.

(2) Prior to a council adopting (or incorporating any revisions to) the municipal/shire plan, a council must prepare a draft of the plan (or any revisions) and these must be accessible on the council website as well as at the council office for public inspection. The council must also publish a notice inviting written submissions on the draft plan on its website as well as in a newspaper which circulates generally in the council area. Written submissions must be received within a time period which is at least 21 days from the date of the notice. The council must consider these submissions and, if appropriate, make revisions based on them.




Chapter 4 Council and its members
Part 4.1 Council as a body corporate
Division 1 Corporate nature, capacity and powers of council

25 Council to be body corporate etc.
(1)This clause declares that a council is a legal entity described as a body corporate and this means that a council can sue and be sued, and can enter into contracts.

(2) This clause declares that the name of the council is the name provided to it under this Act.

(3) This clause more fully states the legal abilities of a council, and places the council in the same position as a body corporate in terms of acquiring any rights powers obligations and liabilities. This relates to the ability of the council to, at law, be a body corporate.

(4) Further to the above legal powers, a council also has functions and powers conferred upon it by this Act.

26 How council acts in its corporate capacity
(1) This clause sets out how a council acts in a legal sense. That is, a council acts through its local boards and committees, officers and staff to whom the council has delegated powers or authorisation. A council similarly acts through officers or other people authorised to act on behalf of the council through the Bill, or under the common seal of the council. The common seal is the "signature" of the council and when properly witnessed by its officers, can legally bind the council in written documents.

(2) The affixing of the common seal or "signature" of the council must be authorised or ratified by resolution of the council. It also must be signed by the CEO and at least one member of council, whose signatures vouch for its authenticity and its authority.

Division 2 Formation of council subsidiary

27 Council Subsidiary
(1) A council, or two or more councils acting together, have the power to form a body corporate (council subsidiary) to carry out local government functions. The formation of such a body corporate is subject to Ministerial approval.

Where two or more councils form a council subsidiary together, the participating councils are called “constituent councils”.

(2) When such a body corporate is formed, it must comply with any conditions that the Minister may impose.

(3) A council subsidiary may include LGANT. If LGANT is included in the formation of a council subsidiary, any reference to a council or council constituent in this Division extends to LGANT.

28 Corporate identity and functions of a council subsidiary
(1) If a body corporate (council subsidiary) of the council is formed, it begins on the day that the Minister notifies in the Gazette.

(2) The council subsidiary will have a constitution which will determine its name, powers and functions.

(3) The council subsidiary acts through its appointed officers or agents, or under its common seal.

(4) The common seal of a council subsidiary can only be used on documents as allowed by the constitution of the council subsidiary.

29 Constitution of a council subsidiary
(1) The Minister must approve the constitution of a council subsidiary.

(2) The constitution of a council subsidiary may require that the council guarantees its liabilities. This means that the council indemnifies the council subsidiary should it run into financial trouble.

(3) The council or constituent councils can vary the constitution of the subsidiary if the council or constituent councils have permission from the Minister.

(4) The constitution of the subsidiary must be available on the Department’s website and on the website of each of the constituent councils.

30 Reporting obligations
(1) A constituent council which has a subsidiary must make sure that proper accounts are kept by that subsidiary in relation to its financial affairs.

(2) The annual report of a constituent council which has a subsidiary must contain a report on the activities of the council subsidiary, including financial statements.

31 Abolition of a council subsidiary

(1) The Minister may abolish a council subsidiary. This is done by Gazette notice.

(2) When a council subsidiary is abolished, all of its property, rights and liabilities are transferred to the constituent council or councils in the way described in the constitution of the subsidiary.

Division 3 Delegation

32 Delegation
(1) This clause states that a council can delegate its powers and functions.

(2) The powers and functions of the council can be delegated to a local board, council committee, council subsidiary, or to the CEO.

(3) The council cannot delegate the power to impose rates upon residents and, if the council delegates a power to enter into an arrangement which will incur financial liabilities, it must limit the exercise of that power by setting a reasonable limit on the delegate’s authority. A delegation is not permitted to duplicate any functions of the CEO, including functions delegated to them by the council.

Part 4.2 Council members
Division 1 Composition of council

33 Composition of council
This clause states that the council consists of the members who are elected by the residents to the council or council members who are appointed under the Act.

34 Vacancy etc in office of member
The validity of a council decision is unaffected by a vacancy in the office of a member, a defect in the appointment or election of a member or the fact that a person has acted in the office while disqualified.

It is a matter of importance that the public has confidence in the ability of a council to enter into arrangements without the possibility that the action taken or promises made by the council could be defeated or invalidated by a technical flaw in the authority of the person acting on the council's behalf.

Division 2 Role of members

35 Role of members
(1)This clause defines the role of the elected or appointed members of the council.

(a) The members of the council represent the interests of the residents and ratepayers of the council area.

(b) The members of the council provide leadership and guidance.

(c) The members of the council ensure that the views of the members of the council’s constituency are received by the council and likewise that the views of the council are disseminated to the council’s constituency.

(d) The members of the council participate in the deliberations of the council in making decisions for the benefit of the residents of the local community and to participate in the community activities of the council.

(e) The members of the council ensure that the council acts honestly, efficiently and appropriately in carrying out its statutory responsibilities to properly represent the local community.

(2) The duties of members of council do not extend to the direction of staff employed by the council.

(3) A member must always act in, what they believe to be, the best interests of the council’s constituency.

Division 3 Terms and conditions of membership

36 Eligibility for membership
(1) If a person is enrolled as an elector in a council's area then that person is eligible to become a member of council, unless they are disqualified from doing so under clause 37.

(2) In the case of a shire council, a person must be enrolled in a particular ward to stand for election in that ward. (This is not the case with municipal councils. In a municipal council, a person can stand for election for any ward regardless of which ward they are enrolled in.)

37 Disqualification
(1) Persons who are disentitled to be a member of council include those who hold judicial office (other than Justice of the Peace); those who are bankrupt or subject to a scheme of arrangement for composition; and those who have been sentenced to a term of imprisonment for 12 months which is yet to expire. It also includes persons who are employees of the council, or who owe rates or surcharges to the council and have done so for more than six months, and the amount is still owing. Also disqualified, are persons who are certified to be mentally unfit to carry out the functions of a member.

(2) An employee of one council may serve as a council member on another council.

Example: An administration officer who lives in Alice Springs and works for the Central Desert Shire Council is not precluded from standing for election as a member of Alice Springs Town Council due merely to their employment.

(3) In order to be certified mentally unfit to carry out the functions of a member, a person must be so certified by two medical practitioners and, in the case of someone who is already elected or appointed to office as a member of council, the certification must indicate that the member is likely to remain unfit to carry out the functions of a member for the balance of the person's term of office.

38 Basic term of office
(1) The term of office of a council member is from the date of election or appointment until the conclusion of the next general election.

(2) If a person has been elected or appointed as a member of the council and remains qualified to be elected as a member of the council then that person can be elected for a further term as a member of the council. That is, there is no limitation on the number of terms that a person might be a member of council as long as the person is not otherwise disqualified.

39 Casual vacancies
(1) This clause sets out circumstances in which there may be casual vacancies of a member of council. These occur when a member dies; is found to be not qualified to hold office (or is disqualified from office); ceases to be enrolled as an elector within the council’s area; or is absent without permission of the council from 2 consecutive ordinary meetings of the council. In addition, a member of council ceases to hold office if that member resigns or is removed from office by the Minister because a disciplinary committee has recommended the members removal to the Minister, or the member is convicted of an offence that shows that the member is not fit to remain in office.

(2)If a member ceases to hold office because they become disqualified or ceases to be an elector in an area which gives them the right to stand for office, they must inform the CEO as soon as practicable of the casual vacancy created and the reason for the creation of the vacancy. Failure to inform the CEO is an offence under this Act. The maximum penalty is 100 penalty units.

(3) This clause means that when a member gives written notice of resignation to the CEO, it cannot be withdrawn and it takes effect no more than 14 days after it is given to the CEO.

(4) Once a CEO receives the resignation, the CEO must immediately notify council.

(5) If a casual vacancy occurs within 12 months of the next general election, the council is able to co-opt a person to fill a vacancy but if the vacancy occurs more than 12 months from the next general election, a by-election must be held to fill the vacancy.

(6) This clause is the exception to the finality of providing a notice of resignation to the CEO. The exception is where the reason for providing the resignation is to enable the member to stand for election to the Legislative Assembly or the Commonwealth House of Representatives or the Senate and in that case the resignation takes effect not more than 28 days before the close of nominations for the relevant election, but if the member is not elected, then the member may apply to the CEO to be reinstated as a member of council within seven days after the result of the election is known.

(7) In the case of a casual vacancy where the member is reinstated as per the previous clause, the member is not entitled to any remuneration or allowances between the date of resignation and the date of reinstatement.

40 Determination of eligibility for office
If there is some doubt that a member or a candidate for membership is qualified for election to council, either the CEO, the returning officer or a local resident may apply to the Tribunal to determine whether that member or candidate is qualified to hold office as a member of council.

41 Immunity from liability
This clause provides immunity from liability to a member when that member might have become liable either civilly or criminally in the course of performing an honest act or making an honest omission in the exercise of the member's official functions, or in circumstances where the member purports to exercise the member's official function. Instead, any civil liability that the member may have incurred is transferred to the council itself so that rights of action by residents or others are preserved.

Part 4.3 Principal member of Council

42 Mayor or President
This clause, together with the following five clauses sets out the requirements for the position of Mayor or President of a council. This particular clause says that the principal member of a municipal council is to have the title "Mayor", except in the case of Darwin City Council, where the principal member will be known as the “Lord Mayor”. In the case of shire councils, the principal member will be known as “President” or “Mayor” depending on the wish of the council.

43 Role of principal member (and deputy or acting principal member)
(1) This clause outlines the functions of the principal member of council. These include: to chair meetings of the council; to outwardly represent the views of the council; and to carry out any civic or ceremonial functions required of them.

(2) The role of a Deputy Mayor or Deputy President is to carry out the functions of the Mayor or President when the Mayor or President is on leave, absent from official duties or when particular functions are delegated to the Deputy by the Mayor or President.

(3) In the event that the Principal Member is on leave or, for some other reason, absent from official duties and the Deputy Principal Member is unavailable to act as the Principal Member, then the council may pass a resolution appointing some other member as Acting Principal Member for either a specified period of time or until the Principal Member resumes official duties.

44 Election or appointment of principal member
(1)The Mayor or President of the council is to be appointed or elected to that office.

In the case of municipal councils, the principal member is to be elected to office (by popular vote). In the case of shire councils, the principal member may be appointed by the council or elected to office, subject to the sub-clauses below.

(2) Initially, a shire council is taken to have chosen the process of "appointment" as the basis for filling the office. "Appointment" means appointment of the Mayor by the members of the council. A council can choose to change the process for determining the principal member by following the sub clauses below.

(3) A shire council may change the process (that is, change whether the principal member is appointed or elected) by passing a special resolution.

(4) A change to the way the office of the principal member is filled can only be made once during the term of the council and must be made at least three months, but not more than nine months before the end of the term.

(5) If a change is made, it takes effect at the next election so that the principal member is appointed or elected according to the decision of the council.

45 Appointment or election of principal member (and deputy)
(1) If appointment is the way the principal member’s position is filled, the appointment of a Mayor or President (and deputies) must take place at the first meeting of a council, after a general election. One of the members is to be appointed to be Mayor or President and one to be Deputy Mayor or Deputy President.

(2) If the method of filling the office of Mayor or President is by election then the office is to be filled at each general election and, at the first meeting after the general election, the council must appoint one of the members to be a Deputy Mayor or Deputy President.

46 Term of office and casual vacancies
(1) Where a principal member is appointed or elected, their term of office concludes upon the completion of the next general election.

(2)The deputy principal member is appointed for the term of the council unless the council decides to fix a shorter term. For example, some councils rotate the deputy position among the other members.

(3) If a principal member or deputy ceases to be a member of the council or resigns, a casual vacancy is created.

(4) A council can make an appointment to fill a casual vacancy in the office of the principal member (where the position of principal member is not to be filled by popular election) and can appoint a deputy principal member if there is a vacancy caused by their term coming to an end.

(5) If a by-election is to be held to replace an elected president or mayor, the vacancy is filled by the person who wins the by-election. If a person is co-opted to fill a casual vacancy of the elected principal member, the co-opted member is not to be the council’s president or mayor. The council may appoint any of the existing members to be president or mayor. If the council does not fill a casual vacancy of a president or mayor, it may appoint any of its members to be president or mayor for the remainder of its term.

This clause is better understood by taking clause 39(5) into account which says that if a casual vacancy occurs more than 12 months before an election, a by-election is to be held, but if the vacancy occurs within 12 months of the election, the council may co-opt a person to fill the vacancy.

Part 4.4 Council Office

47 Council Office
(1) This clause requires a council to maintain a public office. A council may have more than one public office.

(2)The office must be open to the public at reasonable times as determined by the council.

(3) If a council has more than one public office, when a document must be displayed or available for inspection, it must be displayed or available for inspection at every public office of the council.

Chapter 5 Local boards and council committees
Part 5.1 Local boards

48 Object
Clause 48 sets out that the object of this part is to ensure that people in local communities are involved in local government through the creation of local boards and council committees.

49 Establishment of local boards
(1) This provides for the creation of local boards. Such boards are to include members of the community in order to facilitate community involvement in local government. The clause allows the establishment of one or more local board.

(2) This allows the council to limit the area within which a local board can exercise its functions. It can be over the whole area, or just part of the council’s area.

(3) This provides council with the ability to abolish a local board. (This may be necessary if the board requests to be closed down or if the board is no longer functioning.)

50 Petition for establishment of local board
(1) People within an area of a council may request that the council create a local board for their area. This is done by way of petition, which requires at least 20 signatures to gain effect. The petition is then lodged with the council.

(2) The petition must say which of the signatories will be the group’s representative.

(3) When the council receives such a petition, it must consider establishing a local board for that area, but the council does not have to establish a local board.

(4) In making its decision about whether to create a local board, the council must take into account whether other residents in the area support the idea and whether council has sufficient resources to support the board so that it will be effective.

51 Constitution of local boards
Clause 51 spells out who can be on a local board.

(1)(a)This provides that a member of the council is on the board if they either live in the area covered by the local board or are the representative of the ward(s) within the area covered by the local board

(b)The council has the power to appoint members of the community to the local board but they must be residents of the area covered by the local board.

(c)The council can appoint other people to the board as it sees fit.

Note
A member of the council's staff is eligible for appointment as a member of a local board (even though staff members are disqualified from membership of the council itself).

(2) The principal member (whether it be the Mayor, Lord Mayor, or President), by virtue of their office, becomes a member of the local board. They do not have to participate in meetings of the board, but can if they want.

(3) Members of local boards are not entitled to receive an allowance (or other form of remuneration) from the council for the work they perform as members of the board. They are, however, entitled to be reimbursed for out-of-pocket expenses.

52 Functions of local boards
Clause 52 sets out the functions of local boards.

(1)(a) Local boards are to involve local communities regarding local government issues.

(b) The legislation also envisages that the board will give the community a bigger voice in local government as the board will be a conduit for the opinions of those on the board to the council about the issues important to the relevant community. This clause says that local boards should ensure that local communities are given an opportunity to express their opinions on local government matters

(c) A corollary of this is that the local board will have the opportunity to have input into the policies developed by council which directly affect the area the community members live in. The board could have an influence in policies relating to the whole of the council area and that of the region.

(d) The members of the board are envisaged to be promoters of the opinions of the persons that make up the community the board members represent. Board members should take the views of their communities back to council and advocate on behalf of their communities.

(e) The council is also to take into account the views espoused by the board members when it is drawing up its council plan. The Bill also provides for the council to take to the Department the views of the members of the local board so that the members might have some influence on the development of the regional management plan.

(2) A local board is subject to direction by the council.

53 Procedure
Clause 53 gives the local board power to decide its procedures but those procedures are subject to direction by council.

Part 5.2 Council committees

54 Council committees
Clauses 54 to 57 set up and regulate council committees which are, of their nature, sub committees of the council.

(1) Sub-clause 1 gives the council the power to set up council committees.

(2) The council appoints the members of a council committee.

(3) The council need not appoint only members of the council to the committee but outsiders as well.

Note
A member of the council's staff is eligible for appointment as a member of a council committee (even though staff members are disqualified from membership of the council itself).

(4) The council has to develop a policy relating to council committees which sets out the terms and conditions on which the persons appointed to the council committee hold office.

(5) The council can abolish a council committee. (This might be necessary at the request of the committee, or if the committee is no longer functioning.)

55 Nature of committee's functions
(1) The council can assign to a committee, functions for which it is responsible.

(2) The functions may be advisory or executive, For example, a finance committee may be set up to advise council on payment of accounts, or it may be given authority to approve payment of accounts.

(3) An executive committee carries out its delegated functions on behalf of the council.

56 Control and direction by the council
This clause states that the council committee is subject to the control and direction of the council.

57 Procedure
This clause allows the committee set its own procedures. It can decide how it runs its meetings and does its work, but it is subject to the direction of the council.


Chapter 6 Meetings
Part 6.1 Council meetings
58 Nature and timing of council meetings
Clause 58 sets out some of the procedural matters in relation to meetings.

(1) The council must meet at least once in every two months. This meeting is called an ordinary meeting.

(2) At an ordinary meeting, business of any kind can be discussed and dealt with.

(3) The first meeting of a council must be within 14 days after the holding of a general election.

(4) The council may call a separate meeting to deal with a particular issue. Such a meeting is called a special meeting.

59 Convening of meetings

Clause 59 deals with council meetings and sets out the procedures for convening meetings.

(1) The CEO is to organise council meetings.

(2) A special meeting must be called if the principal member, or three or more members of the council, put in a written request to the CEO to call such a meeting. The CEO must also convene a special meeting if a council resolution is passed to the effect that a special meeting is to be held. The time and the place and the business to be dealt with can be requested by the people requesting the special meeting.

(3) If the CEO does not convene a meeting when legally required to do so, then any member of the council can convene a meeting.

(4) Council must produce a notice advising residents when convening a council meeting.
(a) The notice must be in writing.
(b) The notice must state the date, time, place and agenda of the meeting.
(c) The notice must be delivered to council members before the meeting:
(i) For an ordinary meeting, the notice has to be given at least 3 business days before the date of the ordinary meeting and;
(ii) For a special meeting the notice has to be given at least 4 hours before the meeting is to be held.
(d) The notice must be posted on the council website.
(e) The notice must be posted on the council’s notice board at all of its public offices.

(5) The notice may be emailed, faxed, posted or delivered to the member or may be provided to the member in any other way that the CEO has arranged with the member.

60 Business to be considered at a meeting
Clause 60 sets out the type of business that may be discussed at meetings.
Firstly, at an ordinary meeting any business may be discussed. However at a special meeting, unless all members are present and unanimously agree that other business be dealt with, only the business for which the meeting was convened is to be considered.

61 Procedure at meeting
Clause 61 deals with the procedure important to the holding of a meeting.

(1) The chair of a council meeting will be the principal member, but if that person is absent, their deputy, and if that person is absent, an acting principal member, and if that person is absent, a member chosen by the members present at the meeting.

(2) This clause sets the number of members who have to be present at a meeting for it to be a valid meeting as a majority of members. It must be a majority of the council’s members.

(3) This clause says the members have to wait 30 minutes before a meeting is automatically adjourned. Thus a member has 30 minutes to get to a meeting after the appointed time and place, if that member is to be counted as part of a quorum. If a meeting is abandoned, the time and place of the next meeting is set by the CEO who has to prepare and deliver another notice of meeting.

(4) This clause sets out a way that a member can attend a meeting without actually being present.

(a) The member can participate by either an audiovisual conferencing link or an audio conferencing link if this is authorised through council policy.

This means that the member may be on a video link with the other members who are physically present at the place nominated by the CEO as the place the meeting is to be held.

(b) Communication by conferencing link must be established at or around the commencement of the meeting.

(c)The member must be able to participate in debate, express opinions and vote as if they were physically present at the meeting

(5) This sub-clause gives the legislative stamp of authority to the decisions of council. Subject to other clauses in this Act, a majority decision of a quorum is deemed to be a valid and binding decision of the council.

(6) Each member present at a meeting has one vote unless the council has a policy which allows the chair to exercise a casting vote. In that case, the chair can exercise their casting vote if there is an equality of votes.

(7) A policy to allow the chair to exercise a casting vote when there are tied votes may only be established at the first meeting of council after a general election and cannot change during the term of the council.

(8) Sub-clause 8 says that the voting is to be by show of hands. A decision to have a secret ballot must be unanimous.

(9) Sub-clause 9 gives a qualified discretion to the council to decide how it will conduct its meetings. Any rule set out in the Act and any by-laws made as to how a council is to run its meetings, will override the decision of the council on meeting procedure.

Part 6.2 Meetings of local boards and council committees

62 Timing of meetings of local boards and council committees
Clause 62 states the local board and council committees referred to in Clauses 49 and 54 above, can decide themselves when to meet. However they are always subject to the direction of the council.

63 Convening of meetings
Clause 63 sets out the rules as to the calling of meetings of the local board and council committees.

(1) As with council meetings the CEO is to convene the meetings.

(2) The CEO may convene a meeting of a board or committee if asked by the Chair of the body that wants to hold a meeting.
(3) Sets out the notice requirements as follows:

(a) A notice in writing must be produced to be given to the members of the board or committee.

(b) The notice must set out the date time place and agenda for the meeting.

(c) The written notice must be given to the members of the relevant board or committee. The time for service is different to that notice required for a council meeting as the notice for a board or committee only has to be delivered a reasonable time before the meeting is to be held. To decide what is reasonable the convener would have to take into account all relevant circumstances.

(d) This requirement is that the notice has to be put on the council’s web site and it has to be there a reasonable time before the meeting. The CEO or delegate has to ensure the notice is on the website.

(e) The notice must be posted on a notice board at all the public offices of the council.

(4) The notice may be given personally or sent by post, email, fax or in any other way that the CEO has pre-arranged with a member.

64 Procedure at meeting
Clause 64 deals with the actual procedures of meetings of local boards and council committees.

(1) The chair of a meeting of a committee or board is the person appointed by the council to be the chair but if they are absent, a member of the committee or board chosen by the members at the meeting.

(2) Sub-clause 2 states the number of people that have to be present at the meeting for there to be a valid decision passed by a vote of the board or committee. There has to be more than 50% of the appointed members
.
(3) As with the council, the meeting has to wait 30 minutes and if more than 50% of the members are not present, the meeting is adjourned to a date and time to be fixed by the CEO. The CEO will again need to follow the notice procedure to properly convene a meeting.

(4) Sub-clause 4 sets out a way that a member can attend a meeting without actually being present:

(a) The member can participate by either an audiovisual conferencing link or an audio conferencing link if this is authorised through council policy.

The member could be on a video call with the other members who are physically present at the place nominated by the CEO as the place the meeting is to be held and they are declared by the Act to be present at the meeting.

(b) If communication is by audio or video, it must start at or around the commencement of the meeting.

(c) The member must be able to participate in debate and register an opinion as if they were actually present at the meeting.

(5) If a quorum is present and if a decision is voted on and more than 50% of the members present physically or by video or audio conference agree with the motion then the motion is passed and is a valid decision of the committee or board.

(6) Other than the rules above and any others provided for in this Act, or provided for by valid decision of the council or its delegate, the board or committee can make its own rules as to meeting procedure.

Part 6.3 Provisions of general application to meetings of councils, local boards, and council committees

65 Meetings to be open to the public
Clause 65 outlines public access to meetings of council, council committees and local boards.

(1) Sub-clause 1 says the meetings have to be open to the public subject to the following exception:

(2) The public can be excluded if confidential business is being discussed. The regulations made under this Act can list those subjects that are to be confidential business. An example of such could include a discussion of tenders.

66 Postponement of meeting
Clause 66 provides an arrangement to deal with the situation when it becomes impracticable to hold a meeting. If that situation arises the CEO may advise the members that the meeting is no longer to be held at the appointed date and time.

(1) The CEO can appoint another date for the meeting as long as the date is no more then 21 days after the meeting that has been postponed.

(2) Sub-clause 2 provides that the CEO must, as far as practicable, ensure every member receives notice of the postponement and of the new date, time and place of the postponed meeting.
The postponement rules apply to councils, local boards and council committees.

67 Minutes
Clause 67 relates to the minutes of meetings of council, council committees and local boards.

(1) This clause provides that minutes of the meetings of the council and the boards and committees are to be kept, and that it is the CEO’s job to ensure that they are kept and maintained accurately.

(2)(a) The Act provides a minimum of what the minutes are to contain, being:
(i) the names of the members present at the meeting; and
(ii) the business transacted at the meeting (for example a clear description of the motions put to the meeting); and
(iii) any other information required by the regulations. That is, the regulations to the Act may set out further requirements that the minutes of meeting must meet so as to be proper.

(b) The minutes must also include a description of any written reports put before the meeting and a description of any recommendations considered by the meeting. The minutes must also describe how someone who is interested can view the reports and recommendations considered in the meeting.

(3) The council, board or committee confirms the minutes of a meeting at the next meeting or next ordinary meeting and at that time they can amend the minutes if necessary, before they confirm that the minutes are a correct record of the meeting.

(4) Sub-clause 4 of clause 67 requires that the minutes are to be published on the council’s website within 10 business days of the date the meeting was held. It also requires the minutes to be available to interested parties at the council’s public office. “Minutes” includes the minutes of the council, the boards and the council committees. The Act sets out an exception to the information that must be in the minutes. If the material being discussed in the meeting is confidential, that information should not be included in the minutes for the same reason that the public can be excluded from the meeting discussing the confidential material.

(5) In line with the provisions providing for the minutes being made available in the public office of the council sub-clause 5 states that a member of the public can look at the minutes so provided for free. The interested member of the public can then, on payment of a fee fixed by council, get an identical copy of the minutes. In addition to this, a member of the public can get from the CEO, on payment of a fee fixed by council, a certified copy of the minutes or a certified copy of an extract from the minutes.

(6) Until the minutes are confirmed as correct, the minutes made available to the public must be marked with a warning that they have not been confirmed and no certified copy or extract of the minutes may be issued.

Part 6.4 Meetings of electors

68 Calling meeting of electors
Clause 68 refers to a meeting of electors of a council or local board.

(1) Sub-clause 1 provides for the calling of such a meeting by the council. It refers to the electors in the area covered by the council or ward

(2) Sub-clause 2 provides for the calling of such a meeting by a board. The electors interested in such a meeting are those in the board’s area which was defined by council when the board was set up.

(3) Notice of the meeting has to be given via the website of the council, by notice displayed in all of the council’s public offices and via a newspaper circulating generally in the area.

69 Procedure at meeting
Clause 69 sets out some of the rules for how an electors meeting is to be carried out.

(1) Firstly a chair must be appointed. This will be a person nominated by the council or the local board.

(2) The procedure at the meeting is to be determined by the chair unless the council or the board otherwise directs.

(3) If a motion is put to the meeting of electors then each person who is an elector is entitled to one vote only.

(4) If a person attempts to vote and there is a dispute as to whether the person seeking the right to vote can do so, the chairman has the final say at the meeting. The chair can conclusively determine the qualification of a person to vote.

(5) As with most meetings, the majority will carry the day on a vote on a motion put to decide an issue at the meeting.

70 Effect of resolution passed at meeting of electors
A resolution passed at a meeting of electors does not bind the council

Chapter 7 Rights and obligations of members
Part 7.1 Allowances and expenses

71 Allowances
Clause 71 deals with the allowances to members of council.

(1) Sub-clause 1 states that a member is entitled to be paid an allowance by the council.

(2) The council is to fix the rate of allowance, however the Ministers guidelines must be taken into consideration. The rate is applicable only for the single financial year it is set for, and is reconsidered by council each year.

(3) Allowances are to be fixed in the first or second meeting that occurs in the financial year for which the rate is relevant. This is to ensure the council considers the question each financial year.

(4) The principal member can get a different rate to that of the deputy and the ordinary members of council. The rate of the deputy can also be different to that of an ordinary member of council. They could also be all the same.

(5) The allowance to be paid to members cannot be paid in advance. When the allowances are to be actually paid is at the discretion of the council.

72 Expenses
Clause 72 provides for a payment to a member of council, subject to limitations determined by the council, by way of payment or reimbursement, of money spent by a counsellor on travel and accommodation necessary for attending meetings. The meetings can be those of the council or a local board or a council committee. A member can also be paid or reimbursed such expenses, subject to limitations determined by the council, if they are attending to council business which has been approved by a prior resolution of council.

Part 7.2 Conflict of interest
73 Conflict of interest
Clause 73 deals with the question of a conflict of interest between the business of council and the business or interests of a member.

(1) Sub-clause 1 states the conflict exists if the member has a personal or financial interest in how the decision is decided. The conflict can also be with a decision of a local board or a council committee. The conflict can also exist if an associate of the member has a personal or financial interest in the decision. For example, a business partner or a spouse. “Associate” is defined in clause 4.

(2) Sub-clause 2 of clause 73 sets out exclusions to the rule. The member is not conflicted out of participating in the meeting if the decision is about the setting of the rate of the allowances to be paid to the member. The level of expenses to be paid to a member is also not subject to the rule. Further, the member is not conflicted out of taking part in decisions that all of or most of the general public have a similar interest in. Similarly, if the member shares the same interest as electors or ratepayers and the member is a ratepayer or elector, then no conflict arises.

An interest that a member or an associate has in a non profit entity does not amount to a conflict of interest. An interest that a member or an associate has in relation to a nomination or appointment to a charitable entity, or in payment or reimbursement of membership fees or expenses related to membership, does not amount to a conflict of interest.

An interest that is so remote that it could not reasonably be likely to influence a decision is not a conflict of interest.

74 Disclosure of interest
(1) Clause 74 requires a member to declare an interest when a matter before the council, local board or council committee relates to that interest. The member must do so as soon as they are aware of a conflict of interest. The member must tell the council, local board or council committee, as appropriate, and must tell the CEO, of the relevant interest that causes the member to be in conflict.

(2) When the CEO gets notice from a member of a financial interest that caused the member to be in a conflict with a decision that is before a relevant meeting, the CEO has to put a note of the interest in a register created for that purpose.

(3) If the member has a conflict of interest they cannot be present at a relevant meeting while the question they are conflicted with is being dealt with. The member can leave the room and come back when that item of business is concluded.

(4) There is a further exception to the exclusion of a member having any part in the decision-making relating to a matter the member has a conflict with, in addition to those exclusions in Clause 73 (2). This occurs when the Minister gives the member the Minister’s approval to take part in the consideration of such a matter. The Minister can set out conditions on which the member can so participate. The Minister would have to take into account relevant factors in providing the exclusion and in setting the conditions.

(5) It is a serious matter for a member to take part in the consideration of a decision or question with which they have a conflict. It constitutes an offence. A member also commits an offence if the member does not declare the conflict to the CEO. If the member is allowed to take part with the approval of the Minister, but acts contrary to the conditions placed on the member by the Minister, the member also commits an offence. The maximum penalty is 100 penalty units or 6 months imprisonment.

(6) In addition to there being an offence committed, where a decision is made in contravention of clause 74, an elector or ratepayer may make an application to the Tribunal. The Tribunal will consider the matter and may declare the decision void.

Part 7.3 Confidential information

75 Improper disclosure of information

(1) A member of a council, board or committee may not disclose confidential information obtained in their capacity as a member. The maximum penalty for doing so is 400 penalty units or 2 years imprisonment.

(2) Confidential information, however, may be disclosed to persons for the purposes of carrying out functions as a member of the council, local board or council committee, or as authorised by the person to whom the duty of confidence is owed, or to a court or tribunal, or to a law enforcement agency, or to an inspector.

76 Improper use of information
Further to the offences in 74 and 75, Clause 76 creates the offence of improper use of information.

(1) It is an offence if the member makes improper use of information acquired by the member as a member of the council. The maximum penalty is 400 penalty units or 2 years imprisonment.

(2) Sub-clause 2 of 76 defines what constitutes improper use of information. It is proof of the improper use of information if it can be shown that the member has gained some private benefit from the use of the information. It is also improper use if the member is shown to have used the information to inflict harm on another.

Part 7.4 Code of conduct
Division 1 Making or adoption of code of conduct

77 Obligation to have code of conduct
(1) Clause 77 requires the council to have a code of conduct. That is conduct that is the minimum expected of a member of a council or a local board or a member of a council committee.

(2) Sub-clause 2 of 77 applies the code of conduct to members of council, a local board or council committee.

(3) The code of conduct must be accessible on the council website.

78 Making or adoption of code of conduct
Clause 78 expands on the code of conduct.

(1) This clause provides that the council may itself make a code of conduct, by a majority voting in favour of the code of conduct put up for acceptance at a meeting of council. A council may amend its code of conduct.

(2) So there is not a vacuum with respect to a code of conduct, the Act provides a code to apply to members until the council passes its resolution adopting a code. The code in reserve is the code set out in Schedule 2 of the Act. (The code in Schedule 2 overrides a council code where the code in the Schedule is more stringent.)

(3) The code in Schedule 2 is the minimum standard of conduct. If the council’s code is less stringent in some respect than the code in schedule 2, then the relevant provision in Schedule 2 prevails.

Division 2 Disciplinary proceedings

79 Complaints of breach of code of conduct
Clause 79 provides people with a method of complaint about a breach of the code by a council member.

(1) Sub-clause 1 provides that any person can complain to the Agency if they believe the member has committed a breach of the code. The complainant can lodge a complaint with the Agency. The Act then sets out a series of requirements that have to be met to make the complaint a proper complaint.
Firstly the complaint must include the name of the member who is alleged to have breached the code. It is also to include a statement as to the particulars which are alleged to have amounted to the breach. The allegation must be detailed.

(2) The complaint must be in the approved form. To give solemnity the complaint the Act requires the allegations to be in the form of a statutory declaration. Sub-clause 2(b) provides for this. It is an offence to make a false declaration. It is a further requirement that the complaint must be made within 6 months of the alleged act.

(3) When the Agency receives a complaint is required to refer the complaint to the disciplinary committee established by the Minister.

80 Establishment and composition of disciplinary committee
(1) The Minister can create one or more disciplinary committees.
(2) The people who make up a disciplinary committee are a legal practitioner nominated by the Attorney-General, a person nominated by the Minister and a person nominated by LGANT.

81 Procedure of disciplinary committee
Clause 81 sets out the powers of the Committee set up by the Minister to deal with complaints against members who have breached the code of conduct.

(1) Sub-clause 1 provides that the Committee can look at the complaint and decide that it is more appropriately dealt with by the police. If so, it can summarily reject the complaint. The Committee can also summarily reject the complaint if the committee decides the complaint is frivolous or vexatious or lacking in substance.

(2) If the complaint is not summarily dismissed the Committee will hear the matter. The Committee is then required to allow the complainant and the respondent to make submissions to the Committee.

(3) The Committee must reject the complaint if the Committee is not satisfied that the alleged breach of the code is established.

(4) Sub-clause 4 sets out the powers of the Committee, should it be satisfied that there is a breach of the code of conduct. The Committee can do various things, depending on the severity of the breach. The Committee can, if it deems it appropriate, reprimand the respondent for the breach. It can fine the respondent, but not more than 20 penalty units. The Committee can also recommend to the Minister that the respondent be removed from office as part of the discipline of the member. The sub-clause is written so that the Committee can only exercise one of its disciplinary powers for each breach of the code.

(5) Sub-clause 5 says a fine imposed by the Committee in exercise of its disciplinary powers is to be treated as a debt to the Territory.

82 Right of appeal
Clause 82 provides an appeal from the Committee to the Tribunal. (The Tribunal is a Magistrate – see chapter 18)

Part 7.5 Removal from office on disciplinary grounds

83 Removal of member from office
The power for the Minister to remove a member from office is given in Clause 83. Under this clause the Minister can only exercise that power if a disciplinary committee has recommended removal, or if the member is found by a court to have committed an offence. The offence has to be such that it demonstrates that the member is a person not fit to retain office. These powers are in addition to the criteria that excludes a person from holding office as set out elsewhere in the Act.


Chapter 8 Elections and polls

Part 8.1 General elections

84 Minister's power to call general election
(1) Sub-clause 1 provides that the Minister may call a general election for a particular area if one of four criteria are met. The Minister may call a general election for an area if the area is new; if two or more areas are amalgamated; if the electoral representation has changed in the area; or if a general election fails.
(2) The Minister, to call a general election has to publish a notice in the Gazette. The notice must fix a date for the general election.

85 Periodic general elections
(1) In addition to the Minister calling a general election, the Act provides in Clause 85 for periodic general elections to take place each 4 years with the first commencing in March 2012.

(2) Periodic elections are to take place in the month of March on a day of the Minister’s choice.

(3) Sub-clause 3 prevents a periodic general election being held in the area if the Minister has held a general election in an area within one year of the date the periodic general election would have been held.

Part 8.2 By-elections

86 By-elections
Clause 86 refers to by-elections.

(1) A by-election is to be held if there is a casual vacancy which occurs 12 months before the end of the member’s term. The by-election is held to fill the casual vacancy.

(2) The by-election may be confined to the electors of a ward if the member’s seat represented a ward.

(3) A by-election is held on a date fixed by the returning officer

(4) The date set by the returning officer must be within three months of when the returning officer is notified of the vacancy.

Part 8.3 Electors and electoral rolls

87 Entitlement to vote
Clause 87 refers to who may vote at elections. It provides that a person may vote if they are on the electoral roll on the day the electoral roll closes. A person on the roll can vote in an election or a poll of electors.

88 Electoral rolls
(1) Clause 88 provides for the Electoral Commission to prepare the electoral roll. The Electoral Commission must prepare a new roll for an area or ward when it is necessary to do so. The roll would need to be prepared before an election or a poll of electors so that those eligible can vote.

(2) If an elector’s address is already suppressed under the Electoral Act, then it must also be suppressed for the purposes of this Act.

(3) In order that the election or poll can be conducted, this clause requires the Electoral Commission to as soon as it can after the roll closes, provide the roll to the returning officer.

(4) The electoral roll closes in accordance with the Act’s regulations. This can be a particular date, or a calculation of a date according to a formula provided for in the regulations.

(5) After the close of an electoral roll, the roll must be available for public inspection (until the election is over) at the Electoral Commission’s public offices.

(6) The way people can have access to the electoral roll, or the amount of information they can obtain, is regulated under the same basis as under the Electoral Act.

Part 8.4 Conduct of elections

89 Conduct of elections and polls
Clause 89 provides that the regulations are to set out how the election or poll of electors is to be conducted.

90 Voting
(1) Compulsory voting is required by clause 90.

(2) An elector can vote by a postal vote; electronically, by attending at a polling station on polling day, or in any other way authorised by regulation. Electronic voting is only allowed if the Minister approves and then only in the manner approved by the Minister.

(3) Any person who fails to vote without reasonable excuse is guilty of an offence. The maximum penalty is 1 penalty unit.

Part 8.5 Electoral disputes

91 Disputing validity of election or poll
(1) Clause 91 provides for someone to dispute the result of an election or a poll. The person has to have a proper interest as set out in sub-clause 2 to be entitled to dispute the election or poll.

(2) A person can dispute an election or a poll if they were a candidate or prospective candidate for the election or they were an elector for the area in which the vote or poll was held, or if they are the returning officer. The persons described in this sub clause are the people with a proper interest as described in sub-clause 1 of Clause 91.

(3) An application disputing the result of an election or poll must state in the application to the Tribunal the grounds the applicant has for disputing the election or poll. They must also include in the application the remedy or relief the applicant seeks from the Tribunal. See Clause 94 for the powers of the Tribunal.

(4) The applicant who wants to dispute the election or poll has 21 days after the conclusion of the election in which to file their application. The application is filed by giving it to the Registrar of the Tribunal.

92 Service of application
(1) Once the interested person has filed an application disputing the result of an election or poll then pursuant to Clause 92, they must serve the application on the three categories of people described in the sub-clauses. The applicant has to serve the application on the returning officer for the area to which the election or poll related; to those persons who would be affected by the application and who were also members or candidates in the relevant election or poll; and to any other person the Tribunal directs.

(2) The persons on whom the application is served are called the respondents to the application.

(3) Any respondent may file a reply to the application. This has to be done either before the expiration of 7 days after service on the application on the respondent, or the Tribunal can set the time for the filing of the reply.

(4) The person who files and serves an application has to be given a copy of the reply. If there are other respondents, they must also be served with a copy of the reply.

93 Inquiries by Tribunal
(1) Once an application has been made to the Tribunal, the Tribunal must inquire into the matters raised in the application. That is, it must convene in a reasonable time and look at the matters raised in the application.

(2) The Tribunal, when it looks at the application, may dismiss it if the Tribunal comes to the decision that the application is frivolous or vexatious or lacks substance. Vexatious means the application is productive of serious and unjustified trouble and harassment. Frivolous applications are those which are so obviously unsustainable or untenable that it is plain and beyond rational debate that they cannot succeed. A lack of substance may mean the lack of any allegations made in the application as to relevant facts that support an assertion that there was something wrong with the election or poll. The Tribunal cannot inquire into the correctness of an electoral roll.

94 Powers of Tribunal
Clause 94 sets out what the Tribunal can do when applications are made to it.

(1)The Tribunal has three courses open to it on a challenge to an election or poll. It can declare the election or poll void. When it makes this declaration the Tribunal must order another election. The Tribunal can declare a person elected if after inquiry the Tribunal determines that that person should have been elected. The Tribunal can also declare that a person who has been said to be duly elected by the returning officer has in fact not been elected. That person would no longer be a member of council.

(2) The Tribunal, before it can make these orders, has to arrive at the decision that there was an error affecting the conduct of the election. The error has to have been a material or serious error and it has to be such an error that it is likely to have affected the result of the election.

(3) The Tribunal, in its deliberations, may uncover the commission of an offence. If it does so, it may make a finding in its reasons for decisions that a person has committed an offence. The Registrar must report the finding to the Minister as soon as practicable after the finding is made.

95 Exclusive method of challenge
Clause 95 makes the challenge procedure set out in clause 91 of the Act the sole method by which a person may challenge the running of, or the result of, an election or poll.

Part 8.6 Miscellaneous
96 Minister's powers in relation to election
(1) Clause 96 gives the Minister the power to say that the election will be held on a later date than that prescribed in the Act. To facilitate that power the Minister is also given a power to extend the time within which things have to be done for there to be a valid election. For example, the time for nominations may be extended. The Minister can make this decision after the time within which the “something has to be done”, has expired.

(2) The Minister may appoint a person to be the returning officer. Usually, the returning officer is the person appointed by the council to the office of returning officer for the council or a person currently acting in that office, or if no-one currently holds or acts in that office, the CEO. The Minister may need to appoint a returning officer if, for example, there is no CEO.

97 Interference with proper conduct of election or poll
Elections and polls are important structures of the State.

(1) This clause creates an offence of obstructing or interfering with an election or a poll. The maximum penalty is 400 penalty units or imprisonment for 2 years. The fault element is one of intention
(2) This clause makes it an offence to influence, through violence or intimidation, how an elector votes at an election or poll. The maximum penalty is 400 penalty units or imprisonment for 2 years. The fault element is one of intention
(3) It is an offence for a person who is involved in carrying out official functions related to an election or poll to attempt, in the course of their duties, to influence the vote of an elector. The maximum penalty is 400 penalty units or imprisonment for 2 years. The fault element is one of intention

98 Secrecy of Vote
It is an offence for a person who is involved in carrying out official functions related to an election or poll, or assists a voter in voting, and finds out how an elector has voted, to disclose that information. The maximum penalty is 200 penalty units or imprisonment for 1 year.

99 Electoral Campaign Material
(1) It is an offence for a person to publish electoral campaign material if it does not, at the end of the material, state the name of the person who authorised it. The maximum penalty is 100 penalty units. The fault element is one of intention.
(2) It is an offence for a person to publish electoral campaign material that is untrue or misleading. The maximum penalty is 100 penalty units and the fault element is an intention to mislead.
(3) This clause states that (1) and (2) relate to material that is published on the internet; by radio or television or newspaper; or by distribution of printed material.

Chapter 9 Council staff
Part 9.1 Council's CEO

100 CEO
(1) Sub-clause 1 requires each council to have a CEO. Councils may also have a Deputy CEO.

(2) Sub-clause 2 provides what is to happen when the CEO is absent or unavailable to carry out official duties.
(a) The Deputy (if there is a Deputy who is available to act) is to act as CEO.
(b) If there is no Deputy CEO, or the Deputy CEO is absent or not available for some other reason, the CEO can nominate someone to act as CEO.

(3) Sub-clause 3 requires the CEO to inform the principal member of the council when the CEO has made a nomination under clause (2)(b) above.

(4) Appointment of a CEO is handled by the council, in accordance with Ministerial guidelines.

101 Role of CEO
Clause 101 states that the CEO is responsible to the council for all the matters listed in clause 101(a) to (i):

(a) Requires the CEO to do the things necessary that ensure the policies and lawful decisions of the council are implemented. The CEO does not have to act on decisions that are unlawful.

(b) Requires the CEO to act as the manager of the day to day operation of the council. The CEO has to properly manage the council staff. This may include properly allocating the resources and dealing with human resource matters. Day-to-day management may include setting up appropriate systems to ensure the council runs economically and efficiently.

(c) Requires the CEO to assist the council to make proper decisions by providing council with all the necessary information and advice.

(d) The CEO should ensure that the community is kept informed of the council’s business. The Act also ensures that if a ratepayer or member of the Community makes a specific request for information, the CEO has to respond appropriately and promptly.

(e) The CEO should ensure that the assets and resources are properly managed and maintained.

(f) Entrusts the CEO with the duty to ensure that the funds of the council are properly looked after. It requires the CEO to put in place proper financial controls, particularly regarding expenditure.

(g) One of the ways a CEO should help keep track of the funds of the council is to keep proper records. The CEO has to ensure that proper financial records. They must also keep other necessary records up to date. This may, for example, include an asset register or filing.

(h) The CEO manages all staff (except the CEO) and can appoint and terminate staff. The CEO reports to the council.

(i) The CEO must carry out functions delegated to the CEO by the council and the CEO must carry out functions assigned the CEO under this Act or any other Act.

102 Delegation by CEO
Clause 102 allows the CEO to delegate the functions required of the CEO by this Act and any other Act to other people. For example, the CEO may give powers or functions to the council staff or to a committee.

Part 9.2 Other staff
Part 9.2 deals with the Staff employed by a council.

103 Other staff of the council
The CEO is responsible for the appointment of staff in accordance
with a staffing plan approved by the council.

Part 9.3 Principles and policies
104 Principles of human resource management
A council must ensure that the following principles are followed in human resource matters.

(a) Deals with the appointment and promotion processes. Appointment and promotion must be based on merit, fair and equitable.

(b) Requires the council to look after its employees by providing training so that the employee can develop professionally. There should also be the opportunity for promotion. The council should to develop and offer a career path to its employees.

(c) Requires the council to protect staff by putting in place a policy which ensures all staff are treated fairly and consistently.

(d) There must be suitable processes for dealing with employment-related grievances.

(e) Working conditions must be safe and healthy.

(f) There must be no unlawful discrimination against a member, or potential member of staff on the ground of sex, sexuality, marital status, pregnancy, race, physical or intellectual impairment, age, or any other ground; and no other form of unreasonable or otherwise unjustifiable discrimination against a member or potential member of staff.

105 Statement of employment policies
(1) Requires the CEO to maintain a statement of the council's employment policies. This will provide those who want or need to know the policies with readily access to them.

(2)(a) Lists the elements that must be included in the council's employment policy. This clause includes a duty for the council to make a decision on the elements listed. The employment policy of the council has to mention the elements of such a policy as set out in sub clauses (i) through to (v). This means the council must consider and make a policy on each of the following elements.
(i) The finding and hiring of staff
(ii) The period of probation a newly hired staff member must undergo before becoming permanent. There must also be a policy on how the council is to properly assess or consider the performance of it staff.
(iii) Conditions for promotion
(iv) How the staff can take part in employment-related benefits they are entitled to by their contract of employment
(v) The council must consider and put in place a process whereby a staff member can complain about their work and that complaint can be carried forward to a resolution.

(b) Gives the council the power to make policies about any employment-related subject.

(3) The council’s human resource management policies must be consistent with the principles of human resource management set out in clause 104.

Part 9.4 Staff obligations

106 Standards to be observed by council staff
Clause 106 puts an onus on the council staff including the CEO to consider the public interest when carrying out their functions. They must also be honest or conduct themselves with integrity. There is also a requirement that they must meet certain expectations of performance in carrying out their functions. They must maintain diligence and concern for the public interest.

107 Conflict of interest
(1) To make it clear that the staff must act with integrity the Act specifically provides for the situation where a staff member may have a personal or financial conflict of interest in respect of their council functions. The conflict may arise with respect to any matter the staff member has to deal with. The clause applies when the person has to give the council advice or can, with authority, do an act. So that the council can make informed decisions, the staff member has to declare their interest. It is an offence not to do so. The Act provides however, that if the staff member is the CEO, the council may authorise the person to partake in the act or provide the advice despite the conflict; and if the staff member is someone other then the CEO, the CEO can authorise that person to act or give advice despite the conflict of interest. The council can set limits or conditions on what the staff member can do and so long as the staff member abides by those conditions in the doing of the act or the giving of the advice the staff member does not commit an offence. If they do not act as they are authorised then they will commit an offence. The maximum penalty is 100 penalty units. This offence, subject to the defence provided by subsection (2), is one of strict liability.

(2) Ignorance of the personal or financial conflict can be a defence to the offence of acting or advising without declaring a personal or financial conflict of interest to the council. The wording indicates that the burden is on the staff member to prove to the Court before which the charge is being heard that they were unaware of the relevant conflict.

(3) Sub-clause 3 of Clause 107 sets out the persons who are covered by the words “staff member” used in sub-clause 1. The words cover contractors to the council. That is, they do not work pursuant to a contract of employment with the council but rather have contracted to provide services to the council. Such persons are called independent contractors. They cover council workers who are not employed by the council but are carrying out council functions as if they were staff but they are in fact employed by a staff hire agency who has hired the persons services to the council.

108 Disclosure of confidential information
(1) Information acquired by council staff in the course of their employment must be kept confidential. Disclosing confidential information except in the course of carrying out the staff members’ duties is an offence. The maximum penalty is 400 penalty units or 2 years imprisonment.

(2) The Act in clause 108 sub-clause 2 also makes it an offence if a staff member makes improper use of confidential information. The maximum penalty is 400 penalty units or 2 years imprisonment.

(3) Improper use includes where the staff member uses the information to gain some private benefit or to inflict harm on another.

(4) Sub-clause 4 sets out the persons who are covered by the term “staff member” as used in sub-clause 1. The words cover contractors to the council - that is, they do not work pursuant to a contract of employment with the council but rather have contracted to provide services to the council. Such persons are called independent contractors. They cover council workers who are not employed by the council but are carrying out council functions as if they were staff but they are in fact employed by a staff hire agency who has hired the persons’ services to the council.

Part 9.5 Rights and immunities of staff

109 Portability of long service leave rights
(1) Clause 109 provides that if a staff member leaves an employer (called the ‘former employer’) and within 3 months joins another employer (called the ‘later employer’) they can transfer to their new job all long service leave rights. The staff member can do so by giving a notice to both employers that they are electing to transfer all accrued and accruing rights to the new employment. This clause only applies to employers listed under subclause (3) of this section.

(2) To facilitate the transfer the clause makes it incumbent on the old employer to tell the new employer of the staff members accrued and accruing rights. The information to be conveyed is the information that appears on the ex staff members records of employment held by the council the staff member has left. Not only must the ex-employer tell the new employer of the content of the records it must also pay over to the new employer the sums accrued by the ex-staff member by way of long service leave. The new employer does not miss out nor does the moving staff member.

(3) This section only applies if both the former employer and the later employer are one of the following: a council for an area within the Territory; a council subsidiary formed under this Act; or LGANT

110 Resignation to contest election
(1) A staff member can resign from the council to contest an election and if they lose, they are entitled to regain their previous employment. In order to receive the benefits of this clause, the staff member has to meet certain conditions.

The staff member has to be resigning to contest an election to the council or to the Legislative Assembly or to the Commonwealth House of Representatives or the Senate. The staff member also has to give the CEO written notice that they want to be covered by this Clause when they resign. The notice has to be given to the CEO at the time of the staff members’ resignation.

The staff member must also make sure that the resignation takes place no more than 28 days before the close of nominations for the relevant election. If the former staff member is not elected in the relevant election they must to apply to the CEO for reinstatement. The application for reinstatement has to be made not more than 7 days after the result of the election is known. If the staff member fulfils all those conditions they must be reinstated to their old job with the council. If that cannot be done then the CEO is obliged to find the employee an equivalent position.

(2) The council incurs no liability for payment of wages when the staff member is availing herself of the mechanism in Clause 110 sub-clause 1 as the person is treated as having been on leave without pay or unpaid leave from the date of resignation to the date the CEO reinstates them.

111 Immunity from personal liability
The council is vicariously liable for the authorised actions or inactions of a staff member. Clause 111 provides that if a staff member does an act with authority and is honestly carrying out the functions given to them by the council and the act incurs some legal civil or criminal liability, then that staff member is not personally legally responsible for that act. The person who suffers any damage by that act must sue the council and not the person who did the act. The same applies for omissions that incur a civil liability. The person who suffers the damage has to sue the council not the person. The clause means the council will pay any damages awarded to the injured person by the Courts.

Part 9.6 Authorised persons
Division 1 Appointment of authorised persons

112 Appointment of authorised persons
(1) Clause 112 provides for persons be become authorised persons by appointment by the council. A council member my not be appointed as an authorised person.

(2) The council can put conditions or limitations on the exercise of power of the appointed person. The limitations have to be set out in the appointment. The person appointed can also have no limitations put on their appointment so one would assume they have all the powers given to appointed persons by the Act.

(3) Once appointed the council can still control the extent of the authority of the appointed person. This is done by notice in writing and can add to or vary the limitations and or conditions of the appointment. In addition the council can by written notice revoke the appointment. Obviously they would do this if someone resigned from the staff of the council.

113 Powers of authorised persons
Clause 113 states that an authorised person who has had no limitations set on their authority can exercise all the powers given to an authorised person by the Act. If the council gives the authorised person written notice of any limitations in that power then the authorised person’s power is circumscribed accordingly.

114 Identity cards for authorised persons
So that there is a means of the public knowing that a person who is purporting to act as an authorised person is in fact an authorised person, Clause 114 provides for the issuing of identity cards.

(1)(a) These cards must contain the authorised person’s name and have a photograph of the person.
(b) The card has to bear the statement that the person named is an authorised person.

(2) So that a member of the public can check that the person who is allegedly acting for the council is an authorised person, the member of the public can ask to see the identity card and the council staff member must produce it upon a reasonable request being made.

(3) Sub-clause 3 makes it an offence for a person who has been granted the status of an authorised person by the council to keep their card when they cease to be an authorised person. The maximum penalty is 20 penalty units.

Division 2 General powers of authorised person

115 Power to require statement of name and address
(1) The authorised person has the power to ask someone their name. Clause 115 limits this power to the circumstance were the authorised person reasonably suspects a person of having committed an offence against this Act or the council’s by-laws. In addition if the authorised person thinks further identity is necessary then the authorised person may ask the person to provide a further type of identity.

(2) Sub-clause 2 makes it an offence to refuse to give a name and address or proof of the same if asked by an authorised person. The person may defend such an offence by proving that they had a reasonable excuse not to comply with the request.

116 Power to enter land or premises
(1) In addition to being able to ask for the identity of someone suspected of committing an offence, Clause 116 gives the authorised person the power to enter upon private premises and remain there, in certain circumstances. The authorised person has to be entering upon the land for an authorised purpose. The authorised person also has to have been authorised to enter upon the land.

(2) The authorised person can be authorised to enter upon land or premises for the purposes of Clause 116 by the occupier. The authority of the owner is not needed. Further, a Justice of the Peace can issue a warrant giving the authorised person authority to enter upon the land or premises. Finally and only in an emergency the CEO of the council can give the requisite authority.

(3) The Justice, before they can authorise the authorised person to enter upon land or premises, must have before them a statement verified by oath or affirmation as to the matters the authorised person thinks are enough to show the need to enter upon land or premises. The Justice has to be satisfied that the reasons given are enough to decide there are reasonable grounds to issue the warrant. If these criteria are met, the Justice can issue a warrant authorising the authorised person to enter upon land or premises.

(4) The authorised purpose referred to in sub-clause 1 is defined by sub-clause 4. For the authorised person to be on land or premises with the authority of the Act they have to be engaged in one of four things:

(a) The authorised person can be investigating a suspected offence against this Act or a council by-law.

(b) They may be taking necessary action in an emergency. An emergency is defined as a situation concerning the protection of the health of a person or the prevention of injury to a person. It can also be an emergency if the authorised person is relieving the suffering of an animal. The Act also provides for an authorised person to be covered if the member is seizing or destroying a savage, diseased or injured animal.

(c) Also gives the authorised person protection if the member is destroying a dog that has within the preceding 24 hours attacked and injured a person in a public place. There is no requirement that this destroying of a dog be in an emergency however, there is a time limit of 24 hours since the event within which the Act gives the authorised person protection from prosecution for trespass. After that 24 hours the provision would no longer apply to the authorised person.

(d) Authorised purpose also includes any other power which an authorised person has by virtue of this Act or a by-law.

117 Assistance of police
The authorised person does not have the powers of a policeman in the exercise of their duties. Clause 117 authorises the authorised person to call upon the police for help in the exercise of duties and powers given to the authorised person by this Act or council by-laws.

Division 3 Obstruction of authorised person

118 Obstruction
To assist the authorised person in conducting their duty without interference, clause 118 makes it an offence for a person to intentionally hinder or obstruct the authorised person. For there to have been the commission of an offence, the authorised person must have been exercising one of their powers under the Act or a by-law. The maximum penalty is 100 penalty units or imprisonment for 6 months.


Chapter 10 Financial management
Part 10.1 Receipt and expenditure of money

119 Authorised deposit accounts
(1) Councils are allowed to establish bank accounts to enable proper financial administration. The bank accounts must be authorised deposit accounts.

(2) All money that is received by a council must be paid into a bank account (an authorised deposit account). All money spent by a council must be paid from a bank account (an authorised deposit account).

The bank statements from those accounts would be a transparent record showing what money was deposited and what money was spent.

120 Segregation of certain money
(1) Council must keep the general funds of the council separate from trust money. In order to do this, a council must have at least one authorised deposit account (to be called the ‘trust account’) in which all trust money is deposited. Note that it does not matter if money held in the trust account is derived from different trusts.

(2) If the council has received money for a particular purpose then it is to be used only for that purpose unless the person or entity which provided the funds approves an alternate use.

Note:
If money is given on trust, this provision is not intended to limit the power of the Supreme Court to vary the terms of trust (See section 181).

Clause 181(5) provides that the Supreme Court can vary the terms of a trust.

Part 10.2 Investment

121 Investment
(1) Clause 121 allows a council to invest money that is not required for present liabilities.

(2) The Minister may issue investment guidelines but must consult with the Treasurer before doing so.

(3) The council must follow the investment guidelines issued by the Minister when it invests money.

Part 10.3 Council borrowing

122 Meaning of borrowing
Clause 122 deals with councils borrowing money. If a council obtains a financial accommodation of any type, the council is said to have borrowed money. The clause gives an example of how a council would work out how much it has borrowed or still owes under a hire purchase agreement, a finance lease or an instalment purchase arrangement. The sum borrowed is the present value of the amount outstanding to be paid under the agreement, lease or arrangement.

123 Council's power to borrow
This clause requires a council to get the approval of the Minister (in consultation with the Treasurer) to borrow money except where the amount to be borrowed does not exceed 2% of the total revenue income for the last financial year as shown in the audited financial statement and the loan period is not more than 2 months.

The Minister may issue guidelines classifying certain transactions as minor transactions. If the transaction is declared a minor transaction, a council does not need the Minister’s permission to enter into that transaction.

124 Security for borrowing
If the council is to borrow money it can give security for the loan with the Minister’s approval.

(1) A mortgage or charge over the property of the council can be given as security for a loan.

(2) Council can also obtain a loan by using the present and future general revenue of the council as security.

(3) Sub-clause 3 prohibits the Minister from approving a security over property if the property sought to be used as the security is essential to the workings of the council or if, for some other reason, it is essential that the property be retained in the ownership of the council. For example, a waste management facility would not be approved to be used as security if there was no other provision for waste management in the council area.

(4) The Minister can only approve a security (as above) after consulting with the Treasurer.

125 Security over general revenue
(1) If the financial position of the council is such that it cannot meet its obligations regarding a security on the general revenue of the council, on application by the holder of the security (or their trustee) the Supreme Court can:

(a) order that the council appropriate a specified portion of its revenue to pay the holders of the security and/or order that the council must raise a specified amount by way of rates to pay the holder of the security.

(b) The Court can also give incidental directions relevant to the matter. To ensure the relief required by the debenture holders works, the Supreme Court can also make ancillary orders and directions.

(2) Sub-clause 2 makes the rights the creditors or trustee have under sub-clause 1 an addition to any rights given to them by other law or pursuant to the wording of the security agreement itself.

Part 10.4 Long-term financial plans

126 Long-term financial plan
(1) To assist with the proper financial running of the council the Act requires the council to prepare and keep up-to-date a long-term financial plan.

(2) The long-term financial plan required by sub-clause 1 must cover a period of at least 4 financial years. It can be for longer if the council decides.

(3) Sub-clause 3 sets out what the long-term financial plan must contain:

(a) It must have a statement of the major initiatives the council proposes to undertake during the period to which the plan relates.

(b) It must make projections as to the income and expenditure for each financial year of the period to which the plan relates, and

(c) It must also contain the council's proposals for the repair, maintenance, management and development of infrastructure for each financial year of the period to which the plan relates.

(4) The long-term financial plan should be consistent with the Regional Management Plan if a regional management plan is applicable to the council.

(5) The council must provide its long-term financial plan to the Agency by the 31st of July, in the first year the plan relates to.

Part 10.5 Annual budgets

127 Annual budgets
(1) This clause compels a council to prepare a budget for each financial year.

(2) The minimum the budget must contain is set out in sub-clause 2:

(a) Outline the objectives the council has decided to achieve in the next financial year; and the ways the council has decided it will achieve the objectives it aspires to; and the way the council will measure whether it has met its goals.

(b) The clause also requires the council in its budget to decide on estimates of revenue it will receive and the expenditure it will make in the financial year to which the budget relates. In making its estimates about its revenue and expenditure, the council has to separate those which apply to operating costs and those which apply to capital expenditure.

(c) The budget has to identify the classes of infrastructure the council has in the financial year. The council must also reveal in the budget the sums of money it intends to spend to develop and maintain each class of infrastructure listed.

(d) The council is required to set out in its budget the gross receipts it intends to receive by payments of rates and it has to show the rates structure the council intends to use to achieve those payments.

(e) The budget must contain an assessment of the social and economic effect of its rating policies.

(f) The budget must state the councillor allowances for members and the amount budgeted to pay for these allowances.

(3) Sub-clause 3 precludes a council budgeting for a deficit, unless the Minister has given approval.

128 Adoption of budget or amendment
(1) Clause 128 requires the budget to be adopted by the council on or before the 31st of July in the relevant financial year.

(2) A council may amend its budget but it may not amend councillor allowances, once the budget has been adopted.

(3) As soon as possible after the budget, or an amendment to the budget, has been adopted, the council must publish the budget or amendment on its website and inform the Agency in writing that it has adopted the budget or amendment. The council must also, as soon as possible after the adoption of the budget or amendment, publish a notice in a local newspaper which informs the public that they may download copies of the budget or amendment from the council website or obtain copies from the council office.

(4) The budget forms part of that council’s municipal or shire plan

Part 10.6 Accounting records

129 Accounting records
Clause 129 requires a council to keep records of its financial affairs.

(1) The accounting records must give a true and fair view of the financial dealings of the council. The records must include the council’s receipts and payments, assets and liabilities.

(2) It is a requirement that each council ensures that their records comply with the accounting standards and other requirements in the regulations.

130 Availability of records for inspection
Clause 130 ensures that a proper watch can be kept on the accounting records.

(1) It is a requirement that the accounting records to be available for inspection by the council’s auditor. An inspector must also be given access to the records.

(2) A member of the council may inspect the accounting records at any reasonable time and provided the inspection is allowed under the privacy policy of the council.

(3) A council must have a privacy policy which protects the privacy of members and staff of the council.

Example:
The privacy policy might limit the inspection of payroll records by members of a council.

Part 10.7 Annual financial statement

131 Annual financial statement
(1) This clause requires a council to prepare a financial statement for each financial year.

(2) The annual financial statement prepared by a council for each financial year must give a true and fair view of the revenue and expenditure for the financial year and the assets and liabilities at the end of the financial year.

(3) The annual financial statement prepared by a council is required to conform with the accounting standards and other requirements stipulated in the regulations.

132 Reference of annual financial statement for audit
The annual financial statement of the council should be referred to the council's auditor as soon as possible at the end of a financial year and at least in enough time to ensure that the audited statement will be available by 15 November in the calendar year in which the financial year ends.

For example, the annual financial statement for the 2009-2010 year is due no later than 15 November 2010.

Part 10.8 Audit
Division 1 Auditor

133 Auditor
(1) A council is required to have an auditor.

(2) The auditor appointed by a council must be the Auditor-General, a registered company auditor, an authorised audit company or a firm whose members include a registered company auditor. Most accounting firms would have a member who is a registered company auditor.

(3) A person is not eligible to be appointed as the auditor if the person is a member of council or a candidate for election or holds any other office or position with the council. This ensures that there is a sufficient degree of separation between the auditor and the council so that no apprehension of bias or self-interest arises.

(4) The council must note in the instrument of appointment of the auditor, the term of appointment, which must be for a period of not less than two years and not more than five years, and at the same time fix the basis for the auditor's remuneration. The time period ensures that the auditor can audit the accounts of council without fear or favour.

(5) This clause sets out the circumstances in which the office of auditor becomes vacant. That will occur if the auditor dies, resigns by providing written notice to the CEO, or becomes a candidate for election or a member of council, or accepts some other remunerated office or position within council. A person ceases to be an auditor if the term of appointment comes to an end and that person is not reappointed or alternatively if the auditor is removed from office by the council with the Minister's consent.

134 Appointment by the Minister
If a council does not appoint an auditor for some reason, the Minister can appoint an auditor and that auditor is to be paid fees which are decided by the Minister.

Division 2 Audit

135 Annual audit
(1) As soon as the auditor has received the council's annual financial statement, the auditor shall audit the annual financial statement and report to the council the results of the audit and any material irregularities that have been picked up concerning the council's accounting practices or the management of the council's financial affairs. At the same time, the auditor reports to the Minister on any evidence, found in the course of the audit of the council's annual financial statement, of any contravention of law or any serious financial irregularity.

(2) This clause requires the audit to be carried out in accordance with the Australian auditing standards and the requirements stipulated in the Regulations.

136 Other audits
The Regulations may require that the auditor carry out audits of the council's financial affairs apart from the audit of the annual financial statement

137 Assistance to be provided to the auditor
(1) In the course of performing the audit, the auditor has power to ask the CEO or other members of the council staff to produce financial records and to answer questions relevant to the council's financial affairs.

(2) A person asked by an auditor to provide information as to financial records or to answer questions relevant to the council's financial affairs and who fails without reasonable excuse to do so, commits an offence and the maximum penalty is 100 penalty units.

Part 10.9 Rectification orders

138 Power of Minister to make rectification order
(1) The Minister has power to issue a rectification order on the council if the Minister is of the opinion that an irregularity has occurred or is occurring in the administration of the council's financial affairs. The rectification order can require the council both to take specified action to correct the irregularity and to take steps to guard against the reoccurrence of those irregularities.

(2) When the Minister issues a rectification order, that order must fix a date for the compliance by the council with the requirements of that order. That date is called "the compliance date".

(3) The Minister may postpone the compliance date upon application by the council.

139 Non-compliance with order
(1) If the council fails to comply with rectification order by the compliance date then each member of the council is guilty of an offence. The maximum penalty is 100 penalty units.

(2) A member of the council can defend a charge under this section if the member can prove that they acted with reasonable diligence to secure compliance by the council with the rectification order by the compliance date.

Chapter 11 Rates and charges
Part 11.1 Rateability

140 Categorisation of land
For the purposes of levying rates on land, land in a local government area is divided into three categories: rateable land, conditionally rateable land and exempt land which is exempt from rates.

141 Rateable land
All land within a council area is rateable land unless it is conditionally rateable land or exempt land.

142 Conditionally rateable land
(1) “Conditionally rateable land” is land held under a pastoral lease or a mining tenement, or land described in the regulations as conditionally rateable.

(2) Conditionally rateable land is only rateable in accordance with a rating proposal approved by the Minister at least one month before the commencement of the financial year in which the rates are declared.

(3) A rating proposal submitted by the council must contain the information required by the Minister's guidelines and must be submitted for approval at least four months before the commencement of the financial year to which the proposal relates. (by the end of February)

For example, a rating proposal for the 2009-2010 year must be submitted by the end of February 2009.

(4) The Minister must respond to a rating proposal within 20 business days after receiving it and may approve, amend or reject it.

(5) The Minister must consult with the Minister(s) responsible for the pastoral and mining sectors prior to approving a rating proposal.

(6) Once a rating proposal is approved by the Minister, it must be published on the Agency's website and on the council's website.

(7) While an approved rating proposal remains in force, land within the ambit of the description contained in the approved proposal is considered to be conditionally rateable land but land that is not within description contained in the approved proposal is not considered to be rateable land.

(8) If there is no approved rating proposal in force in a local government area then land that might otherwise be regarded as conditionally rateable land will not be regarded as rateable land. That is, it is not the nature of the land which makes it rateable but the existence of the approved rating proposal that makes it rateable.


143 Urban farm land
(1) The owner or occupier of land within the council area may apply to the council for classification of that land as "urban farm land".

(2) In order for land to be classified as urban farm land, the land must be more than 0.8 of a hectare in size, be used by the occupier for carrying on a prescribed business or industry, and the occupier must derive a substantial part of his or her livelihood from carrying on that business or industry.

(3) The application for classification of land as urban farm land must be accompanied by the information required by council to show that the eligibility criteria for classification as urban farm land are satisfied.

(4) After classification of land as urban farm land, the owner or occupier of land classified as urban farm land must, if required by the council, provide information to the council to demonstrate that the eligibility criteria for urban farm land continues to be satisfied.

(5) If the owner or occupier of urban farm land fails to provide the information requested by council within the time allowed, or if the information provided does not show that the eligibility criteria continues to be satisfied, the council is required to declassify the land as urban farm land.

144 Exempt land
(1) This clause defines what land will be exempt from rates

(a) Generally, Crown land occupied by the Territory for a public purpose will be exempt from rates unless that land is used for public housing in which case it will be subject to rates.

(b) Council land is exempt unless it is under lease and the purpose of that lease does not fall under one of the exemptions provided for under clause 144.

(c) Public places consisting of parks, gardens, reserves, playgrounds, sportsgrounds, cemeteries and roads will be exempt from rates.

(d) Land belonging to religious bodies and used for public worship, places of residence for ministers of religion, the residence of the head of a religious body in the Territory, and an institution for religious teaching and training are exempt from rates.

(e) A public hospital will be exempt from rates.

(f) Land used for a non-commercial purpose by a public benevolent institution or public charity will be land that is exempt from rates. (but note the exception in (2) and (3), below)

(g) In general, land used by schools, from kindergartens to tertiary education institutions, will be exempt from rates.

(h) Land that is recognised by the council as a youth centre by the relevant council will be exempt from rates.

(i) Land occupied by a public library or public museum will be exempt from rates.

(j) Common property in apartments or units or building developments registered under the Real Property (Unit Titles) Act will be exempt from rates. That is, rates will be levied on the apartments and units but not on the land that is the common property of those apartments and units.

(k) Other Acts of Parliament may exempt land from rates being levied under this Act.

(2) Where land is used for two or more purposes and one of those purposes is not one that would make the land exempt from rates, the allotment is not exempt from rates unless the non-exempt purpose is only incidental.

Example:
An allotment consists of a public museum containing a cafeteria. The existence of the cafeteria would not negative the exemption. However, if it were a restaurant attracting customers in its own right, it would do so.

(3) Whether an occupier or user of land is a public benevolent institution or a charity, is irrelevant in relation to the question of whether the purpose is commercial. The question of whether the use is commercial must be decided by considering the nature of the use, rather than the nature of the user.

145 Special Cases
There are 3 special cases of exemptions from rates. These are Commonwealth land, land owned by a Land Trust and land owned by an Aboriginal community area association.

(1) Land of the Commonwealth can be rated if there is an agreement with the Commonwealth about paying rates. The rateability of such land depends on what is in the agreement.

Example:
The Commonwealth might agree that an occupier of land under a lease from the Commonwealth is to be liable for rates.

(2) A Land Trust does not have to pay rates but if the land is occupied, the occupier is liable to pay rates and where it is leased, the lessee is liable to pay the rates.

(3) An Aboriginal community living area association does not have to pay rates but if the land is occupied, the occupier is liable to pay rates and where it is leased, the lessee would be liable to pay the rates.

(4) Land owned by a Land Trust or an Aboriginal community living area association cannot have a charge on the land for overdue rates and the land of a Land Trust or an Aboriginal community living area association cannot be sold for non-payment of rates.
Subclause (4) has been inserted for clarity.

Note:
This sub clause does not, however, protect a leasehold estate from such a charge or from being sold for non-payment of rates.

146 Apportionment where land rateable for part only of a financial year
(1) As land may become rateable during a financial year (such as a new housing development), or land may cease to be rateable during a financial year, rates must be paid but only for the proportion of the year that the land is rateable.

(2) The proportion of the year is calculated by working out the number of days the land is rateable and the number of days in the financial year.

(3) A council must refund or remit the appropriate proportion of rates that have been paid where land has become unrateable Full rates for the financial year do not apply but the appropriate proportion of rates must be paid.

Part 11.2 Basis for assessment of rates

147 Allotments
(1) This clause describes an allotment as a parcel of land for which the council intends to make an assessment of rates.

(2) The council can only divide a parcel of land that is subject to the same ownership into separate allotments if those allotments will be separately occupied, fall within different planning zones or there is some other good reason for splitting the land into separate allotments.

Example:
If land consists of a block of flats in the same ownership but separately occupied, the council could either treat the block of flats as a single allotment and determine rates for the whole, or disaggregate it into the separate flats and determine rates for each flat.

148 Basis of rates
(1) This clause provides a number of ways that can be used to calculate rates. Rates can be constituted by a fixed amount, an amount calculated as a proportion of assessed value of an allotment, fixed charges and a combination of fixed charge and a valuation-based charge. This clause gives flexibility to a council to levy rates in an appropriate manner.

(2) This clause directs that where rates consists partly of a valuation-based charge, a minimum charge can be specified.

Example
A valuation based charge might be expressed as a specified proportion of assessed value or $100 (whichever is the greater amount)

(3) This clause states that differential fixed charges, differential valuation-based charges and differential minimum charges can be fixed for allotments within different parts of a local government area or different classes of allotments.

Example:
The rates for land within different planning zones might be based on differential components.

(4) This clause means that where an allotment is divided into separate uses or occupation (like a block of flats) a minimum charge may consist of a fixed amount multiplied by the number of separate parts (such as the number of flats in the block of flats)

Example:
If an allotment consists of a block of flats in separate occupation, the minimum charge could consist of a fixed amount to be multiplied by the number of flats comprised in the complex.

149 Basis of assessed value
(1) This clause permits councils to adopt unimproved capital value, improved capital value or annual value as the basis of the assessment of the value of allotments as the basis for levying rates within its area.

(2) The assessed value of the land for the purposes of rates is one of unimproved capital value, improved capital value or annual value of the land, depending upon what basis of valuation is used by the council. The relevant valuation comes from the valuation roll, which is the roll prepared in maintained under the Valuation of Land Act.

Note – valuation roll is defined in clause 3 of the Act:
valuation roll means the valuation roll prepared and maintained under the Valuation of Land Act.

Part 11.3 Liability for rates

150 Joint and several liability
(1) This clause says that the owner and the occupier of the land are jointly and severally liable for the rates payable in respect of an allotment of land. Joint and several liability means that each of them is as liable as each other for the payment of rates.

Note
It should be noted that joint and several liability does not increase the liability to rates. Take (for example) the case of an allotment on which the council imposes rates amounting to $600. Suppose that A and B are both ratepayers and jointly and severally liable for the rates. The council cannot, by seeking recovery from each separately, recover a total of $1 200. The aggregate liability remains the same (ie $600.). It follows that an amount received or recovered by the council from A reduces B's liability to the council as well.

(2) An occupier, who is not the owner, is only liable for rates if their name is entered on the assessment record as the principle ratepayer upon their own application or after they are given written notice by the council.

(3) If notice is given by the council to an occupier during a financial year, that the occupier is liable for rates, the occupier is only liable for the proportion of rates applicable to the time after the occupier has been given notice.

151 Principal ratepayer for an allotment
(1) Subject to subclause (2), this clause states that the owner is the principle ratepayer for an allotment. However, if the owner is not liable to pay rates, the occupier of the allotment becomes the principal ratepayer.

Note
In the case of an allotment owned by a Land Trust, the Trust itself is not liable to rates so the lessee (if there is a lessee) is treated under this Act as the owner and hence the principal ratepayer for the allotment. If there is no lessee, the occupier may be liable for rates (See section 150(2)) and, if so, would be the principal ratepayer for the allotment.

(2) This clause qualifies subsection (1) so that an occupier who would not be the principle ratepayer under subsection (1) may apply to the CEO to be designated as the principal ratepayer, and the CEO may do so. Also, if 2 or more ratepayers would be principal ratepayers, the CEO can designate one (or more) to be recorded as principal ratepayer/s for the allotment in the assessment record.

(3) A principle ratepayer designated under subsection (2) is the principle ratepayer to the exclusion of others.

Note
The designation is subject to reconsideration and review (See section 154).

(4) If rates are paid by a person who is not the principle ratepayer, the person who paid the rates may recover the amount from the principle ratepayer or set off the amount against any liability owed to the principle ratepayer unless there is an agreement to the contrary between the person who paid the rates and the principle ratepayer.

Part 11.4 Assessment record

152 Assessment record
(1) This clause directs the council to maintain an assessment record for land in its area.

(2) The assessment record is to contain:

(a) A brief description of each allotment within the area and a statement of its assessed value; and
(b) If the land is non-rateable and a charge is imposed upon that land, a brief description of the land; and
(c) The name and address of the owner of the land; and
(d) The name and address of the principal ratepayer of the land; and
(e) if the land is subject to a differential rate based upon its use, the land use of that land; and
(f) Any other information that the council directs should be included in the record.

(3) The assessment record may be kept by a computer rather than a physical record such as a rate book.

(4) A copy of the assessment record must be publicly available for inspection free of charge at the council's public office.

(5) A person to whom an entry in the assessment record relates may apply to the CEO to suppress that person's name or address from the publicly accessible copy of the record and the CEO must do so.

153 Notifications to be given by ratepayers
In order to collect rates in an orderly fashion clause 153 puts the responsibility on those who are to pay the rates to keep the council informed of their name and address.

(1) A person who becomes the principal ratepayer (except as a result of a transaction that is registered under the Land Title Act) must, within 28 days of doing so, give the CEO written notice of that fact and of the person's postal address. If the ratepayer fails in this responsibility they commit an offence and the maximum penalty is 20 penalty units.

(2) Should the principal ratepayer change their postal address, they must provide written notice of the change to the CEO within 28 days of the change. To fail in this responsibility is to commit an offence and the maximum penalty is 20 penalty units.

(3) Subclause 3 requires that if a person ceases to be the principal ratepayer (except as a result of a transaction that is registered under the Land Title Act) they must notify the CEO within 28 days. Failure to comply results in an offence and the maximum penalty is 20 penalty units.

154 Correction of record
(1) If a person thinks the councils assessment records are wrong then the interested person can make an application for a correction.

(2) The grounds for such an application may be a wrong classification of an allotment as rateable, a wrong classification of urban farmland, a wrong record of the use of an allotment, a misclassification or misdescription of an allotment, and wrong record of ownership or occupation of an allotment or some other error.

(3) The application has to be in writing and disclose what makes the applicant an interested person by disclosing the person’s interest in the relevant allotment. The applicant is also required to set out the amendment to the assessment record the interested person requires the council to make.

(4) The CEO is allowed to decide ‘uncontroversial’ applications but if the application raises a matter of possible controversy then the application must be sent to the council or a council committee to be dealt with.

(5) Once a decision has been made on the application for an alteration to the assessment records pursuant to this clause, the CEO must notify the applicant of the outcome as soon as practicable.

(6) The applicant has a right of review of the council or committee’s decision if the application is rejected in whole or in part. Such a decision is a reviewable decision and falls under the provisions of Chapter 18.

Part 11.5 Imposition of rates and charges
Division 1 General and special rates

155 General rates
(1) The council is required to make a declaration on rates by 31 July of the relevant year.

(2) The council has the power to raise money for a special purpose of the council. This must be declared at the same time that rates are declared.

(3) Sub-clause 3 sets out the requirements of what must appear in the declaration of rates:

(a) There must be the amount levied for a general purpose and the amount levied for the special purpose if there is one; and

(b) The basis or bases of the rates; and

(c) If instalments are allowed, the declaration has to set out the number of instalments and when the instalments will be payable

156 Special rates
(1) Clause 156 provides the council with the power to declare special rates. Special rates are rates the ratepayer has to pay for a particular purpose.

(2) If the special rates are only for the benefit of a particular area, then the council may impose those special rates on the allotments in that area rather than generally.

(3) The declaration of a special rate must include:

(a) A statement as to the purpose for which the special rates have been imposed; and

(b) A statement as to the amount to be raised; and

(c) The basis of the special rates; and

(d) A statement as to whether the special rate will be imposed on ratepayers generally, or on ratepayers within a certain area (allowable under Clause 156(2)). If the special rate is to be imposed on only a certain area, the area must be defined.

Division 2 Charges

157 Imposition of charges
(1) Where a council does work or provides services which benefits land or the people who occupy the land, the council can declare a charge.

(2) The declaration of the charge has to say how much the charge is or what it is based on and identify the land it applies to.

(3)The amount of the charge does not have to be limited to the cost of providing the service.

(4) The provisions in this Act about rates apply, with adaptations, to charges. (This means, for example, that just as an occupier can be liable for rates, an occupier can be liable for charges, but only in the same way that an occupier can become liable for rates)

Exceptions
Although the provisions about rates generally apply to charges, there are 3 exceptions where the rules are different for charges:
1. Land that is not liable to rates may still be liable for charges
2. A charge may be calculated in a different way from rates but it must have a reasonable basis
Example
A charge to recover the cost of kerbing might consist of an amount per metre of the frontage of an allotment.

3. While concessions can be granted in relation to rates, concessions cannot be granted in relation to charges.

Part 11.6 General and particular notice

158 Public notice
(1) Once the rates have been declared the council is required to publish a public notice of the rates within 21 days. The notice must be:

(a) Published on the council web site; and

(b) Published in a newspaper circulating generally in the council’s area.

(2) To ensure that the ratepayers have sufficient information, the public notice must contain:

(a) Details of the rates; and

(b) The date payment falls due or when each instalment payment falls due if the council allows payment by instalment; and

(c) If the council has decided to reward ratepayers for prompt payment in full, it must also publish the incentive it has allowed.

(3) If a council fails to publish the notice within the 21 day time limit, the failure does not invalidate the rates declaration.

159 Rates notice
(1)Clause 159 requires the council to issue an account (a rates notice) for each allotment which is liable for rates or charges. This must be provided at least 28 days before full payment (or instalment if applicable) is due.

(2) The council is required, if practicable, to give the rates notice to the principal ratepayer for an allotment. If however the notice cannot be given to the principal ratepayer then it can be given to any other ratepayer for the allotment.

(3) The rates notice must:
(a) State the date when payment is due or if the payments are able to be made by instalments date of the first payment and

(b) Be given no less than 28 days before the due date for payment of rates (or instalment if applicable) in order to give ratepayers time in which to prepare for payment of the rates.

(4) If the rates notice is not given 28 days or more before payment is due, the failure does not invalidate the rates notice.

160 Discount for prompt payment
(1) Clause 160 allows councils to give a discount for early or prompt payment.

(2) If there is to be a discount then there has to be disclosure of the terms including the discount allowed and the conditions concerning the discount. The discounted amount and the undiscounted amount must be shown.

161 Payment by instalment
(1) Clause 161 makes it a condition of instalment payments that the payments have to be made on time.

(2) If the ratepayer does not pay the instalment on or before the due date then the whole of the balance of the rates becomes immediately due and payable.

(3) The council may excuse a ratepayer or ratepayers from the consequences of late payment to the extent that the council decides.

Part 11.7 Interest on unpaid rates

162 Accrual of interest on overdue rates
(1) Clause 162 provides for interest to be paid on unpaid rates. Interest accrues on unpaid rates. (Council determines the interest rate under (4) below.)

(2) The interest is calculated on a daily basis. The period the interest is calculated on is from the due date, that is when the sum was due to be paid, to the date of payment. Interest is calculated on the sum outstanding and not on the sum and accumulated interest.

(3) The interest rate is the rate fixed by council and is known as “the relevant interest rate”.

(4) A council can fix the interest rate and vary the interest rate.

163 Remission of interest
A council has the power to remit interest. It can decide to remit some or all or none of the interest owing.

Part 11.8 Rate concessions

164 Rate concessions
(1) A council can grant a concession with respect to rates. A rate concession is either:
(a) A waiver of rates (or a component of rates); or
(b) A deferment of payment of rates (either whole or part)

(2) If the council decides to grant a concession it may do so conditionally or unconditionally as the council decides.

(3) If the ratepayer does not comply with the conditions for a concession set by the council, the council may change its mind about the concession. The council can, if the ratepayer does not comply with the conditions set by the council for the receipt of the concession, withdraw the concession and demand payment of an amount on or before a date specified in the notice stating the concession is withdrawn. The sub-clause thus gives the council the power to neutralise the effect of the concession to the ratepayer.

165 Rate concession to alleviate financial hardship
(1) Councils have power to grant a rate concession to alleviate financial hardship.

(2) Such a rate concession may be granted on application by a person who establishes to the council's satisfaction that they will suffer financial hardship if the concession is not granted.

166 Correction of anomalies in operation of rating system
(1) As the rating system may not be perfect and may create anomalies between ratepayers, clause 166 gives the council the power to deal with such an incongruity by granting a rate concession to a ratepayer or a class of ratepayers. The granting of concessions for this reason is at the discretion of the council.

(2) The council may give a concession if a ratepayer applies or if the council decides to do so of its own volition.

167 Public benefit concessions
(1) The Act gives the council the power to grant a rate concession for a number of reasons. Generally these are for public benefit purposes, including:

(a) securing the development of the council’s area

(b) preserving historical or significant buildings and places of interest

(c) protecting the environment

(d) encouraging cultural activities

(e) promoting community health or welfare

(f) encouraging agriculture

(g) providing recreation or amusement to the public.

(2) Sub-clause 2 puts limitations on the granting of concessions. The limitation is that the concessions for public purposes can only be given if the concession complies with council policy as to the concessions which can be authorised.

(3) As with a concession for financial hardship the council may grant a concession under this clause through the application of a ratepayer or of its own volition.

Part 11.9 Recovery of rates
Division 1 Application of this Part

168 Extended meaning of rates in this Part
The word “rates” has an extended meaning in this part of the Act.

(a) In this part, “rates” includes a charge.

(b) If rates (or a charge) are overdue, “rates” includes accrued interest and costs reasonably incurred by the council in recovering the rates.

The effect of this clause is that when a council recovers rates, it includes recovery of the interest due and the costs of recovery.

Division 2 Recovery by action

169 Recovery by action
(1) Once rates are due and payable yet unpaid, the council may commence an action in a Court with appropriate jurisdiction and sue for the sum unpaid, the interest accruing and the costs involved in recovery.

(2) These proceedings may be commenced at any time within 6 years of the rates being imposed.

Division 3 Overriding statutory charge

170 Overdue rates to be a charge on land
In addition to the right to sue for and recover the unpaid rates the amount unpaid is secured against the land to which the rates relate.

171 Registration of charge
(1) So that there is notice of the charge on the title of the land to which the rates relate, clause 171 gives the council the right to register the charge created by clause 170 on the title with the appropriate registration authority, if the rates have been outstanding for 6 months or more.

(2) Sub-clause 2 requires the registration authority, on application by the council for the registration of the charge and on payment of the appropriate fee, to register the charge as an overriding statutory charge. This means it is to be paid before any other interest except a prior statutory charge. In addition the registration authority is to advise all those with a registered interest in the land, that the charge has been registered.

(3) If for some reason someone does not get notice of the registration of the charge when they should have, then the lack of notice has no effect on the validity of the charge. It still has its full force and effect.

(4) Sub-clause 4 directs the registration authority that it must remove the charge from the title of the land if the council requests that it be removed.

(5) The council can request a charge to be removed for any reason but it must apply for the charge to be removed when the sum outstanding by the ratepayer is fully satisfied.

172 Effect of registered charge
An overriding statutory charge has priority over all other registered and unregistered mortgages, charges and encumbrances except an overriding statutory charge registered before the council’s overriding statutory charge.

This means that it has very high priority if the land is sold, for the money owing to be paid to council.

Division 4 Sale of land

173 Power to sell land for non-payment of rates
This clause allows the council, subject to conditions, to sell the ratepayers land for arrears of rates if the rates have been outstanding for 3 years or more and an overriding charge has been registered by the council pursuant to clause 171 on the title of the land, for at least 6 months.

174 Pre-conditions of sale
(1) Before the council can exercise its power to sell land for non-payment of rates it must give a notice to the principal ratepayer for the land, sent to the address appearing on the assessment record, and stating the period for which rates have been in arrears, the total amount outstanding and a warning that unless the outstanding rates are not paid within a stated period of at least one month, the council will proceed to sell the land for non-payment of rates.

(2) A copy of the notice that was sent to the principal ratepayer must also be given to any other person with a registered interest in the land, for example the mortgagee (bank). If the land is a mining tenement or a pastoral or other lease granted by the Territory, a copy of the notice must also be given to the Minister administering the legislation under which the lease or mining tenement is granted.

(3) When the council is unable to otherwise contact the principal ratepayer or a person entitled to a copy of the notice, this clause permits the council to serve the notice that land is about to be sold for non-payment of rates by publishing it in a newspaper circulating generally throughout the Territory and leaving a copy of the notice at a conspicuous place on land. For instance, if the mail addressed to the principal ratepayer is returned "left address" and the council is otherwise unable to find where the principal ratepayer currently resides then the council may use this clause to effect service of the notice so the that it can proceed to sell the land
.
175 Sale of land
(1) This clause permits the council to sell the land if the full amount of the outstanding rates are not paid within the time allowed. A principal ratepayer cannot avoid the effect of the notice by paying only part of the outstanding rates.

(2) If the sale proceeds it must be conducted by public auction but there are 2 exceptions.

1. If the land is a pastoral or other lease granted by the Territory or a mining tenement, the sale must be made in the manner approved by the Minister administering the legislation under which the lease or mining tenement was granted.

2. If the land is a leasehold estate granted by a Land Trust, the sale must be made as approved by the relevant Land Council.

(3) If the sale of the land is to proceed by public auction then it must be publicised on the council's website and at least on two separate occasions in a newspaper circulating generally throughout in the Territory.

(4) If, before the date of the sale, the outstanding rates, interest and the costs incurred by the council that relate to the proposed sale of the land are paid, then the council is required to call off the sale.

(5) If the auction of the land being sold fails, the council may then sell the land by private contract for the best price that it can reasonably obtain. Generally speaking, sale by auction is the preferred method of sale because the auction clearly establishes the market value of the land. Establishing the true market value in a private sale is more problematic and that is the reason that this clause introduces the standard of the best price that the council can reasonably obtain as the appropriate value of the land.

(6) In order to sell the land the council has to be able to complete the relevant documentation and this clause permits the council to execute the conveyance of the land under its common seal.

(7) On registration of the conveyance, the title to the land is given to the purchaser free from all mortgages, charges and encumbrances securing payment of any money. That is, the land is free of any previous mortgages or caveats or charges that may have been registered upon the land.

176 Proceeds of sale
(1) When the council receives the proceeds of the sale of the land then the council must apply those proceeds first as to the costs of selling the land, secondly the payment of all liabilities secured on the land such as mortgages and other charges including the liability to the council, in the order of their priority, and thirdly any excess is then paid to the owner of the land.

(2) If the council is unable to find the person to whom the excess of any monies from the sale is due, that money will be paid by the council to the Public Trustee as unclaimed property.

(3) A payment to the Public Trustee under (2) vests in the Public Trustee under s59A of the Public Trustee Act.

Part 11.10 Correction of errors

177 Correction of errors
(1) This clause allows the Minister, by Gazette notice, to correct any minor or technical irregularity in the levying of rates upon land. In effect the Minister is able to declare that notwithstanding some technical irregularity or minor error, that rates have been validly declared or declared and levied.

(2) This clause says that a declaration by the Minister has effect from the date on upon which the council initially declared and levied the rates.

Chapter 12 Council property
Part 12.1 Property generally

178 Acquisition of property
(1) This clause permits a council to acquire real or personal property, including intellectual property, by agreement.

(2) This clause permits the council to enter an arrangement with the Minister administering the Land Acquisition Act to compulsorily acquire land for the council under that Act.

(3) If the council enters into such an arrangement, the council must reimburse the relevant Minister for any compensation and other costs associated with the acquisition.

179 Assumption of care control and management of land
(1) The council is permitted, at the request or with the consent of interested persons, to assume the care control and management of land within its area.

(2) For the purposes of sub-clause (1), interested persons include the owner of the land, a person with a registered estate or interest in the land and a person whose interest in the land is protected by a registered caveat.

(3) In the case of land which is subject to a trust, the consent of the trustee is required. The council is not required to obtain consent from someone who cannot be found after reasonable enquiry, or a corporate body that has become defunct, such as a deregistered company.

(4) When a council assumes the care, control and management of land it must notify that assumption of responsibility by publishing a notice of that fact on its website.

180 Power to develop and improve land
When a council has land under its care control and management, the council may develop and improve that land.

181 Power to act as trustee
(1) This clause permits a council to act as a trustee of land or other property.

(2) If the council is given care management control of a particular section of land the council cannot assume any obligation to promote a particular religion, but if the land is a cemetery then the council is able to undertake to maintain a particular part of the cemetery for members of a particular religious group and to receive a gift on condition that it do so.

(3) This clause permits a council to apply to the Supreme Court for an order varying the terms of any trust of which the council is a trustee. This may be required where the objects of the trust have changed with time or circumstances.

(4) If the council wishes to vary the terms of any trust of which the council is a trustee then notice of that application and the nature of the variation of terms sought must be given on the council’s website, in a notice published in the newspaper circulating generally around the Territory, and any other way directed by the Supreme Court.

(5) If the Supreme Court is satisfied that due to the nature of the terms of the trust in its present form that it is impractical for the council to give effect to the purpose of the trust then the Supreme Court may vary the terms of the trust to enable the council to give effect to the purpose of the trust.

(6) The council must publish on its website the fact that an order has been made by the Supreme Court and the effect of that order.

182 Power to deal with and dispose of property
(1) A council can deal with and dispose of property of which the council is the owner as long as the council abides by the Minister’s guidelines.

(2) This clause does not authorise a council to act in breach of the terms of the trust or the conditions upon which a property was accepted by the council.

Part 12.2 Reserves and Cemeteries

183 Reserves
(1) The Minister can put a reserve in the council’s area under the care, control and management of the council but only if the council agrees.

(2) When a council has the care, control and management of a reserve under subclause (1) the council has the powers and functions of trustees appointed under section 79 of the Crown Lands Act.

184 Public cemeteries

(1) Where there is a public cemetery in a council area, it is vested in the council.

(2) In such cases, the council has the powers of a Board of Trustees under the Cemeteries Act.

Exception
There is an exception where the powers of the Board of Trustees do not vest in the council. This is when a regional management plan provides for management of the cemetery by a joint management committee or a subsidiary. In such a case, the powers of the board of Trustees vests in the joint management committee or subsidiary.

(3) This clause permits the council to make by-laws for the management and control of a public cemetery in its area, but if the cemetery is the subject of a regional management plan, the provisions in the regional management plan must be followed.

Part 12.3 Roads

185 Roads
(1) This clause defines the meaning of the word “road” for the purposes of this Act. It provides that “road” means land vested in the council at the commencement of this Act as a road; land vested in the council as a road after the commencement of this Act under some other Act; land which is reserved, dedicated or resumed, with the council’s consent, as a public street, road or thoroughfare; land which is transferred to a council in fee simple and accepted by the council as a public road; land consented to by the owner and declared by the council by notice in the Gazette to be a road; and Crown land vested in the council, with the council’s agreement, by the Minister as a road.

(2) This clause permits the Minister to vest Crown land in a council, if the council agrees, as a road.

(3) Land that has been classified as a road ceases to be a road if that road is permanently closed under this, or any other Act.

186 Care control and management of roads
(1) This clause states that all roads within an area are under the care, control and management of the council. This is subject to the following clauses. Many roads are vested in the Territory. (See clause 265 which provides that roads that were vested in the Territory immediately before the date of transition remain vested in the Territory.)

(2) After consulting with the relevant council, the Minister may, by notice in the Gazette, withdraw a road from the care, control and management of a council and vest it in the Territory.

(3) If the Minister decides to withdraw a road from a council then the notice that the Minister gives under subclause (2) of this clause is the instrument that divests the road from the council and vests the road in the Territory.

(4) Certain types of property connected with a road under the care, control and management of a council also vest in the council while it controls the road. Such property includes the vegetation growing on the road and anything erected on or fixed on the road, with the exception of infrastructure or equipment belonging to the Commonwealth or the Territory or one of their statutory authorities. This means, for example, that the council would control the median strip and plants on the road shoulders, but would not control a junction box operated by the Power and Water Corporation.

187 Closing of roads
(1) A council has power to temporarily or permanently close a road that is under its care control and management.

(2) The council cannot permanently close a road without the consent of the Minister.

(3) If a road vested in the Territory is permanently closed the land vests in the council in whose area the road is, in fee simple (freehold).



Chapter 13 Regulatory powers
Part 13.1 By-laws

188 Power to make by-laws
(1) This clause permits the council to make by-laws for the administration and government of its area.

(2) This clause says that regulations may be made under this Act defining the subjects that fall within the ambit of the council’s power to make by-laws or excluding subjects from the council’s power to make by-laws.

(3) A by-law made by council can apply generally or can be restricted in its operation.

(4) A by-law is binding on the Territory. This means that the Territory and its instrumentalities must comply with by-laws.

(5) The council may pass a by-law that imposes a penalty not exceeding 100 penalty points for an individual or 500 penalty points for a corporation. An example of this power would be setting a penalty for parking offences.

(6) A by-law can provide for a daily penalty, but such a penalty must not exceed 5 penalty units for an individual or 25 penalty units for a corporation, for each day the penalty continues.

189 Principles applying to by-laws
(1) A by-law must conform with the following principles:

(a) A by-law must not exceed the power under which it is purportedly made

(b) A by-law must not impose a tax or operate retrospectively without there being a clear authority for the council to impose that tax or require that the by-law act retrospectively. For example, a council could not impose income tax on its residents because it has no authority to do so.

(c) This clause addresses the onus of proof in criminal proceedings. The onus of proof is on the prosecution and the council may not reverse that onus of proof so that it is on the accused, unless the offence is a parking offence or a minor traffic infringement, or the shift in the onus does not concern the proof of the offence that relates to formal matters (for instance—the name of the council or the name of a road) or matters which are peripheral to the substance of the offence (for instance – that an accused was the registered owner of the vehicle), or there is clear authority in the authorising legislation.

(d) A by-law must not infringe the personal rights of a person in an unreasonable way or to an unreasonable extent.

(2) This clause sets out other parameters for by-laws:
(a) The first is that the by-law should be consistent with other legislation applying in the council’s area

(b) A by-law should not impose unreasonable burdens on the community;

(c) Consistent with the principles of the Trade Practices Act and the Consumer Affairs and Fair Trading Act, a by-law should not restrict competition unless the benefits of the restriction outweigh the detriments of a restriction of competition.

(d) A by-law should not overlap or duplicate other legislation.

(e) It is also a requirement that a by-law imposed by council should be consistent with principles of fairness and justice.

(f) This clause applies to the formulation of a by-law and imposes a requirement that plain language should be used and that the by-law be formulated in gender-neutral language.

(3) This clause deals with whether a by-law becomes invalid if it breaches the principles stated above in subclause (2) and determines that at first instance the by-law should not be considered invalid but that a court, in considering whether the creation of the by-law is a reasonable exercise of the power of the council, should take into account that the by-law contravenes the principles in subclause (2).

(4) This clause does not affect the validity of bylaws made before the commencement of this Act.

190 Making by-laws
(1) If a council intends to make a by-law then it must, at least 21 days before the meeting at which the by-law might be passed, publish the proposed by-law on its website, make copies of the proposed by-law available for public inspection at the council's office and advertise the intention to propose the by-law, its terms and its general nature and effect, in a newspaper circulating in the area of the council. In considering making the by-law the council must consider written representations made by members of the public about the by-law. The council is also required to obtain a certificate from a legal practitioner certifying that, in that legal practitioner’s opinion, the by-law is consistent with the principles prescribed in this part.

(2) A by-law can only be passed by a special resolution. (This means a special majority is required – a resolution is passed by a special majority of the members of a council if it is supported by the votes of at least three-quarters of the total number of members of the council.)

191 Model by-laws
(1) The Minister may, by notice in the Gazette, propose model by-laws dealing with a particular subject and can alter or revoke those model by-laws by a similar notice in the Gazette.

(2) The model by-laws must be published on the Agency's Web site

(3) A council may adopt a model by-law or alteration to a model by-law by way of special resolution. (This means a special majority is required – a resolution is passed by a special majority of the members of a council if it is supported by the votes of at least three-quarters of the total number of members of the council.)

192 Register of by-laws and certified copies
(1) A council must keep a register of all by-laws that have been made by the council.

(2) The register is required to include the text of each by-law and, if the by-law refers to any codes, standards or other documents, the text of those other documents.

(3) The register of its by-laws kept by the council must be accessible on the council's website and must be available for inspection at the council's public office.

(4) A certified copy of a by-law can be supplied to a person upon payment of a fee fixed by the council.

Part 13.2 Regulatory orders
Division 1 Categories of regulatory order

193 Visual pollution
(1) This clause provides power to a council to direct that the owner or occupier of land take action to remove from the land any visual pollution or, alternatively, take steps to reduce the impact of the visual pollution. For example, the council might direct that an offensive roadside advertising sign be removed or relocated.

(2) This clause defines what is meant by visual pollution and it means that the land itself is an unsightly condition or there is an unsightly structure or object on the land.

194 Mitigation of hazard or nuisance
This clause gives power to the council to make an order, called a regulatory order, that can direct that the owner or occupier of land to remove or mitigate a hazard or nuisance (or a potential hazard or nuisance).

Examples:
1 The council might require the owner to construct drains to prevent water from the land draining across the road.
2 The council might require the owner or occupier to cut back overhanging vegetation.
3 The council might require the owner or occupier to fence the land to prevent animals from running out from the land across a road.
4 The council might require the owner or occupier to clear away objects or materials that could prove hazardous to neighbours during a cyclone.

195 Animals and activities involving animals
This clause permits the council to make a regulatory order requiring the owner or occupier of the land on which an animal is kept or an activity with an animal is carried out to take specified action in respect of the animal or the activity if either have become, or are likely to become, a hazard or a nuisance.

Examples:
1 The council might require re-location of slaughtering activities to a place where they are less likely to cause offence or a risk to the health of others.
2 The council might require action to reduce the number of cats kept on a property.
3 The council might require action to reduce noise or odours.
4 The council might require the destruction of a dangerous animal that cannot be adequately controlled in its current location.

Division 2 Regulatory orders generally

196 Review of orders
A regulatory order is reviewable. This means that a person who is adversely affected by a regulatory order can seek review of the order under chapter 18 of the Act.

197 Time for carrying out work under regulatory order
A regulatory order must provide a reasonable time for a person to take the action required by the order. The council can extend the time limit.

198 Non-compliance with order
(1) If a person does not comply with a regulatory order, they can be fined up to 100 penalty units.

(2) If a person does not comply with a regulatory order, an authorised person from the council can, after giving reasonable notice to the occupier, enter the land and meet the requirements of the order.

(3) The council can recover the cost of meeting the requirements of the order as if they were unpaid rates.

Chapter 14 Reporting and public disclosure
Part 14.1 Annual reports

199 Annual reports
(1) This clause requires the council to report to the Minister annually. The report has to be delivered to the Minister by 15 November each year. The report has to be about the council’s work during the prior financial year ending 30 June.

(2) The report must have attached the council’s audited financial statement for the preceding financial year.

(3) The report must also assess how the council performed, that is, whether it achieved the objectives as stated in the municipal or shire plan. To do this, the performance indicators, as set out in the municipal or shire plan, should be applied.

(4) The council is required to, as soon as possible after it has delivered the annual report to the Minister, publish the report on its website and publish a notice in a local newspaper informing the public that the annual report may be downloaded from the council website or obtained from the council office.


Part 14.2 Public access to information

200 Information to be publicly available
The following material is to be available on the council's website and at the council's public office:

(a) a draft regional management plan for the region in which the council's region is situated and the notice inviting written representations; and

(b) the regional management plan for the region in which the council's area is situated; and

(c) the council's draft and final versions of the municipal or shire plan; and

(d) the constitution of a council subsidiary for which the council is a constituent council

(e) the notices and minutes of meetings of the council, local boards, council committees and electors; and

(f) a statement of the level of allowances and expenses to be paid to members; and

(g) the register of members' interests; and

(h) the council's code of conduct; and

(i) an approved rating proposal; and

(j) notice of the declaration of rates (and charges) for the current financial year; and

(k) notice of the council's intention to sell land, by auction, for non-payment of rates; and

(l) notice of the council's assumption of the care, control and management of land; and

(m) notice of an application by the council to the Supreme Court for variation of a trust and notice of an order made on such an application; and

(n) notice of a proposed by-law the council intends to make; and

(o) the register of by-laws ; and

(p) the council's annual reports ; and

(q) a list setting out each category of reviewable decisions.

201 Suppression of certain information
(1) Regulations can classify material as confidential and that material must not appear in the information that is to be made publicly available. It is the duty of the CEO to make sure that confidential material is not published.

(2) If a person’s name and/or address appears or is to appear in the public material mentioned in clause 200 the person involved may ask the CEO in writing to have that information suppressed.

(3) The presumption is that on a sub-clause 2 application, the information is to be suppressed unless someone can establish that there is a good reason for publishing the information.

(4) The CEO must notify the applicant in writing of the result of an application under sub-clause 2.

(5) A decision to refuse suppression is reviewable and falls under the provisions of Chapter 18.

(6) The publicly available material includes not only the material in clause 200 but also an assessment record or other material that is to be made publicly available under this Act, except an electoral roll.


Chapter 15 Compliance reviews and investigations
Part 15.1 Inspectors

202 Inspectors
(1) This clause provides for the appointment of inspectors of local government. The inspectors of local government are appointed by the Minister.

(2) The document by which the appointment is made, called an instrument of appointment, must contain all the terms and conditions of the inspectors’ appointment.

(3) One of the matters the terms and conditions can cover is the extent of the power of the inspector of local government. The power could be limited to the expertise of the person appointed.

Example:
If an inspector's field of expertise lies in auditing financial records, the
appointment could limit the inspector to that field.

203 Identity cards for inspectors
(1) So that the public can clearly identify inspectors of local government, the inspectors must have an identity card. It will contain the name of the inspector and their photograph. The card must contain a statement that the person is an inspector.

(2) The identity card must be available for inspection on request. The request has to be reasonable.

(3) It is an offence for an inspector to keep their identity card when the person ceases to be an inspector. The person must return the card to the Agency when they cease work as an inspector. If a person fails to do this, it is an offence and the maximum penalty is 20 penalty units.

204 Functions of an inspector
Clause 204 sets out what inspectors can do. They can carry out compliance reviews and investigate suspected irregularities in or affecting the council’s conduct of a council’s affairs.

Part 15.2 Compliance review

205 Program of compliance reviews
(1) The Agency must establish a program of compliance reviews for councils. This means that the Agency will develop a plan or strategy for reviewing councils in relation to compliance.

(2) The reviews are designed to ensure the councils conduct their business lawfully.

206 Carrying out of compliance review
The review is to be carried out by one, two, or more inspectors as designated by the Agency.

207 Agency must report on results of compliance review
(1) The Agency must report to the council on the results of a compliance review.

(2) The review may go further than just pointing out its findings. Sub-clause 2 allows the report on the review to contain ways to improve council’s affairs. The report can contain recommendations for administrative or regulatory change.

Part 15.3 Investigations

208 Investigations
(1) The Agency may commence an investigation, as distinct from a review, if there are reasonable grounds to suspect a material irregularity in the conduct of a council’s affairs. This has to be a suspected material irregularity, not a trivial matter.

(2) One or more inspectors carry out the investigation and are assigned by the Agency.

Part 15.4 Powers of inspector

209 Power of entry and access
(1) There are occasions where the inspectors are going to need to obtain access to land and premises. They will need access to conduct a review or an investigation. In addition they may need to examine the land or premises and likewise to search the land or premises. Clause 209 gives the inspectors these powers for the purposes of conducting a compliance review or an investigation. The clause also gives them the power to examine and take copies of records and documents of the council.

(2) Sub-clause 2 sets out the obligations of the CEO and any other council staff, when requested by an inspector. They must do anything reasonably necessary to facilitate the exercise of powers under subclause (1). They must answer questions asked by the inspector that are relevant to the investigation and they must produce the relevant records. If the inspector reasonably requires other assistance the CEO and staff must comply.

(3) It is an offence not to comply with the request of an inspector. The maximum penalty is 100 penalty units.

(4) It a defence to a charge under the above clause if the person who is accused establishes that they had a reasonable excuse not to comply with the request.

210 Power of formal questioning
(1) An inspector conducting an investigation or review can require, on notice, a person to provide written answers to specified questions. The answers have to be provided within the time the inspector gives the person to answer them. The inspector can also require in writing specified written information. The inspector can require by notice that a person attend at a specific place before the inspector and be asked questions about a subject stated in the notice. The inspector can demand the person deliver up records or documents as specified in the notice or of a kind as specified in the notice.

(2) The inspector can make the person required verify the answers to their questions in writing by way of statutory declaration.

(3) Sub-clause 3 gives an inspector the power to administer oaths or affirmations so that when a person attends before them to be orally examined the inspector can require the person being examined to give answers under oath or affirmation. The sub-clause also requires the examinee to answer questions put to them.

(4) It is an offence not to comply with a requirement under this clause and the maximum penalty is 100 penalty units.

(5) It is a defence to a charge in sub-clause 4 if the person allegedly in breach had a reasonable excuse for non compliance.

211 Inspector's report
(1) The findings of an inspector with respect to an irregularity have to be reported to the council. They must also be reported to the Agency.

(2) If the investigation has revealed anything that looks like it involves dishonesty or serious illegality, the inspector must report the matter to the Minister.

Part 15.5 Agency's power to remedy irregularity

212 Power to commence proceedings to recover loss
(1) The clause gives the Agency the option to commence legal proceedings to recover losses suffered by a council as a result of irregularities discovered by the inspector and included in the inspector’s report. The action is brought by the Agency in the name of the council.

(2) The Agency indemnifies the council against any liability for costs arising from an action taken by the Agency under this clause.

213 Power to impose surcharge
(1) This clause allows the Agency to give permission to the council to impose what is called a surcharge on the person whose dishonest or illegal act gave rise to the loss. A surcharge is a demand for a sum of money that is enforceable in a court as a debt. Before it can impose the surcharge, the Agency has to be satisfied that the council has suffered loss as a result of that dishonesty or illegality.

(2) The surcharge comes into being when a notice is given by the council to a person stating the amount of the surcharge and the reasons it is being given, and stating the date before which it must be paid.

(3) If a person receives a notice in the form of a surcharge the recipient has 28 days in which to appeal to the Tribunal against the imposition of the surcharge.

(4) On appeal, the Tribunal has the power to confirm, vary or set aside the surcharge.

214 Recovery of surcharge
(1) This clause sets out the provisions for how the council may collect the surcharge if it is not paid. It provides that the council can sue in a court for recovery of the amount of the surcharge as if it were a debt.

(2) The council can set off any liability of a person with a surcharge, against the amount of the surcharge. For example if the council owes a person $150.00 and there is an outstanding surcharge of $300.00, the council can settle the matter by accepting $150.00 and the council’s debt to the person is cleared.


Chapter 16 Inquiries

Part 16.1 Establishment of commission

215 Establishment of commission of inquiry
(1) The Minister can establish a commission of inquiry into the affairs of a council or anything else that is relevant to local government in the Territory.

(2) The Minister appoints commissioner/s to constitute the commission of inquiry.

(3) Where the Minister sets up a commission of inquiry into the affairs of a council, the Minister must give notice to the council of the reasons for, and the subject matter of, the inquiry.

216 Commissioner’s terms of office
(1) The Minister decides pay and conditions for commissioners.

(2) A commissioner has the same privileges and immunities as a Judge of the Supreme Court, in relation to performing functions as commissioner.

Part 16.2 Conduct of Inquiry

217 Conduct of Inquiry
(1) A commission of inquiry must diligently inquire into the matter and report to the Minister.

(2) The commission of inquiry is not bound by the rules of evidence and can gather information as it sees fit.

(3)Proceedings of a commission of inquiry are open to the public unless the commission thinks that, in the public interest, proceedings should be held in private.

(4) Where a commission is inquiring into the affairs of a council, the council must be given reasonable opportunity to make submissions on the subject matter of the inquiry.

218 Evidentiary powers of commission
(1) A commission can require a person to appear and give evidence, require a person to provide written answers to questions, verified by statutory declaration, and require a person to produce documents in their possession, or produce other evidence that is within the person’s control.

(2) A requirement to provide evidence must be in writing and must state the subject matter of the inquiry, the terms of what is required and allow a reasonable time for the person to comply.

(3) A commissioner can administer an oath or affirmation to a person who is to give evidence.

(4) The following matters are offences:
· failing to comply with a requirement to give evidence
· failing to take an oath or affirmation when required
· failing or refusing without a reasonable excuse, to answer a relevant question.
The maximum penalty for these offences is 100 penalty units or 6 months imprisonment.

(5) A person who gives evidence in an inquiry has the same privileges and immunities as a witness in the Supreme Court.

219 Legal representation
A person or council under investigation is entitled to be represented by a lawyer in proceedings before the commission.

220 Reopening of Inquiry
The Minister can re-open an inquiry if there is fresh evidence or if it is desirable to do so.

221 Report of commission of inquiry
(1) Publication of a report of a commission is absolutely privileged.

(2) Publication of a fair report is protected by qualified privilege.

If publication of material is absolutely privileged, that means that there can be no action in defamation even if the material is defamatory. If publication of material is protected by qualified privilege, that means that a person who wants to sue for defamation has to show that the person who published the material was actuated by malice.

Chapter 17 Defaulting Councils
Part 17.1 Suggested remedial action

222 Suggested action to remedy deficiencies
(1) Where the Minister is satisfied that deficiencies have been identified in the conduct of a council’s affairs, the Minister can recommend remedial action to the council and ask the council to report to the Minister on the action taken or the reasons why no action is taken in relation to the recommendations. The council may be given a specified period in which to provide the report.

(2) The council must provide a report requested by the Minister under this clause.

Part 17.1 Required remedial action

223 Suggested action to remedy deficiencies
(1) Where the Minister is satisfied that deficiencies have been identified in the conduct of a council’s affairs and action must be taken to address them, the Minister can require the council to take action and give a time limit and require the council to report to the Minister at the end of the time limit on the action the council has taken.

(2) If a council does not comply each member of the council is guilty of an offence.

(3) It is a defence to a charge of such an offence if the member can prove they acted with reasonable diligence to ensure the council complied.

Part 17.3 Official management

224 Official management of councils
(1) This clause applies where the Minister is satisfied that serious deficiencies have been identified in the conduct of the council’s affairs and in that regard the Minister can, by notice in the Gazette, place the council under official management.

(2) If the Minister places the council under official management, all members of the council are suspended from office and the Minister must appoint a suitable person to manage the affairs of the council (the manager). At the same time, the Minister must appoint a suitable person to investigate the conduct of the suspended members and the affairs and financial position of the council. That person (the investigator) may be the manager, but does not have to be the manager. The investigator must provide a report to the Minister within a period specified by the Minister.

(3) The Minister has power to extend the time for the investigator to report on the investigations.

(4) When the Minister receives the report from the investigator, the Minister must invite written submissions from the suspended members of the council on the content of the report and the Minister must give the suspended members at least 21 days to respond to the invitation.

(5) After considering the report and any submissions made by the suspended members of council, the Minister must either reinstate the suspended members or dismiss the suspended members from office.

225 Official manager
(1) The person appointed by the Minister to manage the affairs of the council is provided, by this clause, with full power to transact any business of the council and to do anything that the council could have done but for the suspension or dismissal of its members.

(2) The manager can act either in the name of the council or in their own name and is permitted by this clause to execute a document under the common seal of the council.

(3) The Minister must determine the manager's remuneration and the terms and conditions of office.

(4) The remuneration paid to the manager is payable from the funds of the council.

(5) If the members of council are reinstated then the office of the manager ceases.

(6) On the other hand, if the members of the council are not reinstated but are dismissed then the manager continues in the position until the conclusion of the next election of members of the council.

226 Election after dismissal of members
(1) If the members of the council are dismissed and the next general election is not to be held within the following year, the Minister must set a date for a by-election to fill the vacancies created by the dismissal of the members of council.

(2) The CEO of the Agency must summon a meeting of the council within 14 days after declaration of the results of the by-election.


Chapter 18 Review and appeal
Part 18.1 Internal review

227 Reviewable decisions
(1) This clause defines those decisions which are reviewable. A decision is reviewable if that decision is designated by this Act as a reviewable decision or by resolution of the council.

(2) A list setting out the categories of reviewable decisions is to be accessible on a council's website.

Note
The following are designated by this Act as reviewable:
(a) a decision by the council or a council committee to reject an application for correction of an entry in the assessment record (Section 154(6))
(b) a regulatory order (Section 201(5))
(c) a decision to refuse to suppress a person’s name or address (or both) from publicly available material (Section 201(5))

228 Right to apply for review
(1) This clause provides for a right to seek a review of a reviewable decision by a person who is adversely affected by that decision. The person must exercise their right within 14 days of the date of the decision by making application to the CEO for a review of the decision.

(2) The application must be made in writing and should set out the grounds upon which the decision should be reconsidered.

(3) The CEO of the council has power to extend the period for a person to make an application seek a review of a reviewable decision if the CEO considers that there are exceptional circumstances that justify the request for an extension of time in which to make the application for review.

229 Consideration of application by administrative review committee
(1) Once an application for review has been received by the CEO, the application must be referred to a committee established by council for enquiry into such applications. That committee is to be called the Administrative Review Committee.

(2) The Administrative Review Committee is able to summarily reject an application for review if the committee considers that the application is frivolous, vexatious or lacking in substance. For instance, an application for review that did not contain grounds for the review of the decision might be dismissed summarily because it lacked substance.

(3) If the Administrative Review committee decides to consider the application and does not dismiss the application summarily then it must enquire into the matters raised by the application and make a recommendation on the application to the council.

(4) The recommendation made by the Administrative Review Committee can be to confirm the decision that was subject to review, suggest an amendment to the decision, revoke the decision or make some other decision that would lessen the adverse impact of the regional decision on the person seeking the review.

230 Council's decision on recommendation
(1) When the Administrative Review Committee makes a recommendation the council then must make a final decision on the application.

(2) However, the decision of council need not be consistent with the Administrative Review Committee's recommendation - that is notwithstanding a recommendation by the Administrative Review Committee the council may decide to come to another decision.

(3) The CEO is required to notify the applicant of council's final decision on the application for review of the reviewable decision.

231 Appeal against council’s final decision on review
If a person does not agree with the decision of council, then that person can appeal against the decision made by council to the Tribunal within 28 days after the date of the notice of council's final decision.

Part 18.2 Appeal
Division 1 Local Government Tribunal

232 Local Government Tribunal
(1) This clause establishes the Local Government Tribunal.

(2) The Tribunal is comprised of the Magistrates of the Local Court.

(3) The Chief Magistrate of the Local Court is the President of the Tribunal.

(4) This clause states that the President has administrative control of the Tribunal.

233 Constitution of Tribunal
(1) This clause says that a single magistrate constitutes the Tribunal for the purpose of hearing and determining a proceeding.

(2) This clause permits different divisions of the Tribunal (For example, two magistrates may hold separate tribunal hearings simultaneously.)

234 Registrars of the Tribunal
(1) Just as the magistrates of the local Court comprise the tribunal, the Registrar of each Local Court is a registrar of the tribunal and the office of the Registrar is a registry of the Tribunal.

(2) Because the Local Court is located at different places and has different registrars at those places, this clause declares that the Registrar of the Local Court at Darwin is the Principal Registrar of the Tribunal

(3) Each Registrar of the Tribunal must keep a register of the proceedings commenced at or referred to that registry in a form approved by the President.

(4) The Principle Registrar is required to keep a composite register of all proceedings in the Tribunal that may have been initiated in the different local courts.

Division 2 Evidence and procedure
235 Evidence and procedure before the Tribunal

(1) This clause permits the Tribunal to inform itself in any manner it sees fit without regard to the more technical rules of evidence.

(2) This clause requires the Tribunal to act according to the substantial merits of the case without regard to technicalities or legal form so that justice and fairness govern proceedings rather than legal technicalities.

(3) A party to a proceeding before the Tribunal can appear by themselves or they can be represented by a legal practitioner or other representative.

236 Witnesses

(1) In order to bring evidence before it, the Tribunal may issue a summons to require that a person come before it to provide oral evidence, or to produce documents, or to do both. This summons is called an "evidentiary summons".

(2) An evidentiary summons can be issued by any member of the tribunal, that is any magistrate, or any registrar.

(3) When a person gives evidence before the Tribunal, that evidence must be given on oath or affirmation. That means that the person giving evidence must swear (or affirm) to tell the truth.

(4) The oath or affirmation given by the witness to tell the truth may be administered by a member of the Tribunal or by the Registrar.

(5) If a person who is required by the Tribunal to attend before it to give evidence or produce documents, and does not do so without reasonable excuse, commits an offence. A witness can also commit an offence if the witness refuses to take an oath or make an affirmation when required to do so by the Tribunal or refuses to answer a question when required to do so by the Tribunal. Without a clause of this nature it would be impossible for the Tribunal to enforce its requirement that a person or witness give evidence before it.

Division 3 Jurisdiction of Tribunal

237 Jurisdiction of Tribunal
This clause states that generally the Tribunal has jurisdiction, that is, power to determine appeals under proceedings under this Act.

Note:
The Tribunal has jurisdiction in the following matters:
(a) to determine eligibility for membership of a council (Clause 40);
(b) to declare a decision of a council, local board or council committee void where it is vitiated by conflict of interest (Clause 74);
(c) to determine an appeal against a decision of a disciplinary committee (Clause 82);
(d) to determine electoral disputes (Clause 94);
(e) to determine an appeal against a surcharge (Clause 211);
(f) to determine an appeal against a decision by a council on review of a reviewable decision.

238 Stay of effect of decisions and orders
(1) When an appeal is lodged with the Tribunal it does not operate to suspend the effect of the decision appealed against.

(2) The Tribunal, however, can order that the decision can be suspended whilst the appeal is before it or it can make an order prohibiting the effect of a decision made or an order made until the appeal has been determined.

239 Costs
This clause gives power to the Tribunal to make an order for the parties’ costs of the proceedings. An order for costs is within the general discretion of the Tribunal and the Tribunal can order costs in favour of either of the parties, whether successful or not, or make no order as to costs.

Division 4 Further appeals

240 Appeals to the Supreme Court
(1) If a party to a proceeding before the Tribunal disagrees with the decision of the Tribunal then that party can appeal to the Supreme Court.

(2) If an appeal is to be made to the Supreme Court then the appeal must be made in accordance with the rules of the Supreme Court.

(3) Any appeal to the Supreme Court is limited to a question of law and this means that any facts found by the Tribunal cannot be overturned by the Supreme Court unless that finding of fact is so much against the weight of the evidence that was before the Tribunal that it becomes an error of law.

Division 5 Rules

241 Power to make rules

(1) The President of the Tribunal can make rules regulating the manner in which proceedings are to be brought before it and the manner in which those proceedings are controlled. The Tribunal can also make rules providing for the enforcement of its decisions and orders in dealing with matters that are incidental to the proceedings and the enforcement of its decisions.

(2) The rules made by the Tribunal can provide for the exercise of procedural powers by a Registrar which means that in the process of preparing a matter for hearing before the Tribunal, the Registrar can make orders necessary for the proper presentation of a proceeding before the Tribunal.


Chapter 19 Miscellaneous
Part 19.1 Local Government Association

242 Continuance of the Local Government Association
(1) This clause declares that the Local Government Association of the Northern Territory (the Association) continues regardless of the enactment of this Act.

(2) This clause states that the Association is a body corporate.

(3) The Association has full legal capacity to acquire and deal with real and personal property and to acquire and incur any other rights, powers, obligations and liabilities that may attach to a body corporate.

(4) The association is required to have a constitution that regulates its administration and the constitution may be changed from time to time in accordance with its internal procedures.

(5) This clause directs that the association shall act in accordance with its constitution and through its officers and employees who have authority to act on its behalf, through agents it appoints to act on its behalf and under its common seal.

(6) This clause directs that an apparently genuine document that bears the common seal of the Association is, in the absence of any proof to the contrary, taken to have been a document properly executed by the Association.

Part 19.2 Criminal responsibility

243 Application of the Criminal Code
(1) This subclause states that any offence under the Act is subject to Part IIAA of the Criminal Code, which states general principles of criminal responsibility.

Note
Part IIAA of the Criminal Code states the general principles of criminal responsibility, establishes general defences, and deals with burden of proof. It also defines, or elaborates on, certain concepts commonly used in the creation of offences. For example, the extended meaning given to the concept of recklessness in section.43AK(4) of the Code should be noted.

(2) If fault elements are identified in an offence under this Act, those fault elements are the only fault elements of the offence and any other fault elements that might be implied by the Criminal Code are to be excluded.

Note
It follows that fault elements that might otherwise be implied under section 43AM of the Criminal Code are excluded by the statement.

(3) Section 43AN(1) of the Criminal Code applies to an offence that is classified as one of strict liability under this Act.

Part 19.3 Legal proceedings

244 Commencement of legal proceedings on behalf of council
(1) This clause deals with the institution of legal proceedings by or on behalf of a council and states that those legal proceedings may be commenced in the name of the council by the CEO or some other person authorised by the council to bring proceedings on its behalf.

(2) Legal proceedings may be commenced at any time from 3 years of the date the offence was allegedly committed.

245 Infringement notice offences
(1) This clause provides that where there is an infringement notice penalty fixed for an offence against this Act, an infringement notice may be served by the council or officer of the council as an alternative to the prosecution of the offence in open court. The officer of the council who issues the infringement notice will be referred to as the prosecutor.

(2) If the prosecutor of the council chooses to serve an infringement notice then that notice must identify the alleged offender, describe the offence alleged to have been committed by the alleged offender, state the date time and place of the alleged offence and state the amount of the infringement notice penalty and the period and means of payment required to comply with the infringement notice. The notice must also inform the alleged offender that the alleged offender may elect to be dealt with in open court rather than by infringement notice.

(3) The prosecutor of the council has the choice to withdraw an infringement notice at any time before the penalty has been paid and instead prosecute the offence in open court.

246 Monetary penalties
(1) This clause states that if the council prosecutes an offence committed in its area, and a monetary penalty is imposed for the offence, then the amount of that penalty must be paid to the council.

(2) Similarly, if the offence results in an infringement notice then the amount of the penalty payable under the infringement notice must be paid to the council.

247 Recovery of damages
This clause permits a court to award damages to the council if it finds a person guilty of an offence against this Act or a by-law and the circumstances of the offence caused the council to incur expenditure or sustain loss or damage.

Part 19.4 Service of documents

248 Service of documents on council
This clause describes the manner in which a document may be served on a council. A document may be served directly on a council by handing it to the CEO personally or leaving it at the council office with a member of the council’s staff. A document may be served by posting the document to the council's postal address or by serving in any other manner notified on the council's website as a permissible way to serve the document. For instance, a council might permit service of documents upon it by email or facsimile.

249 Service of documents by council
(1) A council may serve a document under this Act on a person by giving it personally to the person to whom it is addressed, leaving it at a person's place of residence employment or business or posting the document to the persons last known place of residence employment or business.

(2) This clause says that if a council serves a notice order or other document on a person in the person's capacity as the owner or occupier of land then that document is taken to be served on successive owners or occupiers of the land.

Part 19.5 Evidence

250 Judicial notice to be taken of certain facts
This clause permits a court to take judicial notice of certain facts. This means that a court is not required to hear actual evidence of certain matters because they are accepted as established facts. The facts that do not require actual evidence are the existence of a municipality or shire and its boundaries, the division of a municipality or shire into wards and the boundaries of those wards, the existence and membership of the council for each municipality or shire, the election of the members of the council and the appointment and signature of the CEO.

251 Certified copies of minutes
This clause permits an extract from the minutes of a council, local board or council committee that has been certified correct by the CEO, to be admissible in legal proceedings as evidence of the proceedings of the council, local board or council committee and the decisions made by those bodies. This eliminates the need to call oral evidence of what matters came before the council or other body and what decisions were made in relation to those matters.

252 Evidence of land ownership
This clause permits a certificate signed by the Registrar-General showing ownership of land in fee simple or as a leasehold estate to be tendered in evidence in legal proceedings as evidence of that holding.

Part 19.6 Misleading representations

253 Misleading representations
This clause penalises a person if that person makes a misleading representation to a council, local board, council committee or officer or staff member of the council when the person knew that the representation was false and intended, by making the representation, to obtain an advantage for himself or another person or cause detriment to another person.

Part 19.7 Carrying out work on land

254 Occupier entitled to carry out work on land
(1) This clause permits the occupier of land to carry out any work on the land that may have been required by this Act of the owner if the owner fails to carry out that work.

(2) If the occupier of the land carries out work that is required to be performed by the owner under this Act then the occupier is able to recover from the owner the cost of the work as a debt or as a set off against any liability owed by the occupier to the owner.

255 Owner entitled to re-enter land to carry out work
(1) If the owner of land is required to carry out work under this Act then, if the owner is not the occupier, the owner may, upon reasonable notice to the occupier, re-enter the land to carry out the work that is required.

(2) An occupier must permit the owner to re-enter the land for the purpose of carrying out the work. The occupier commits an offence under this Act if he or she unreasonably obstructs the owner from re-entering the land for the purpose of carrying out the work required under this Act. The maximum penalty is 100 penalty units.

Part 19.8 Certificates of liabilities, etc.

256 Certificates
(1) The council is required to provide a person, with a proper interest in land, with a certificate setting out any details of outstanding rates and charges due to the council in relation to the land and details of any statutory notices and orders issued by the council in relation to the land as long as the person applying has a proper interest in the land. For instance, a proposed purchaser of the land might apply to the council to obtain details of any statutory notices, orders or rates outstanding.

(2) This clause says that if the council provides a certificate and a person acts upon the certificate in good faith to purchase the land or lend money on a mortgage then the council is stopped from disputing the correctness of the certificate.

(3) This clause sets out those people who are considered to have a proper interest in the land and that includes the owner occupier, a purchaser or prospective purchaser, a mortgagee or prospective mortgagee, or any person acting for those people.

Part 19.9 Acquisition of property

257 Acquisition of property
This clause provides for the payment of compensation in just terms in the event that this Act or the Local Government Amendment Act 2007 (or any administrative act under either piece of legislation), operates to acquire a person's property otherwise than on just terms. A "person" is defined in section 17 of the Interpretation Act to include a body politic and a body corporate. Subclause (1) is the provision which establishes the entitlement to compensation. Subclauses (6) and (7) are machinery provisions which expressly extend the just terms provision to any acquisition effected by the Local Government Amendment Act 2007.

Subclause (2) provides that the amount of any compensation payable is determined by the Supreme Court. This ensures that there is procedural fairness in the compensation mechanism. In order for the provision to have application, it will be necessary for a claimant to establish that the relevant law is one with respect to the acquisition of property, that there has been an acquisition, and that they have a sufficient proprietary interest in what was acquired to warrant payment of compensation.

As part of the transition to the system of local government provided by this Act, the Local Government Amendment Act 2007 converted some associations into local government bodies, and this Act will dissolve those local government bodies at the date of transition. Because there was a possibility that it might otherwise not have been possible to provide just terms compensation to those associations and bodies if converted and dissolved, subclause (3) expressly empowers the Supreme Court to make any orders that are necessary in order to provide just terms, including reversing the dissolution of any body corporate and converting a body corporate into an association under the Associations Act. Subclause (4) expressly precludes the Court from restoring the body corporate's powers of local government.

Subclause (5) provides that in the event that a body corporate receives compensation for property acquired and the Court is satisfied that under the former system of local government that body corporate would have been obliged to apply that property for the benefit of a particular community, locality or purpose, the Court may make such orders for the use of the compensation to ensure that the ultimate beneficiaries remain substantially the same.

Part 19.10 Guidelines and regulations
258 Guidelines
(1) This clause permits the Minister to make, change or withdraw guidelines for the purposes of this Act.

(2) If the Minister makes guidelines they must be published on the Agency's website.

(3) If the Minister makes guidelines then the Minister must lay them before the Legislative Assembly within six sitting days after making them, but if the member does not do so it does not make the guidelines invalid.

259 Regulations
This clause permits the Administrator to make regulations under the Act.

Chapter 20 Repeals and Transitional provisions
Part 20.1 Repeals

260 Acts repealed
This clause says that the Acts in schedule 3 are repealed. These Acts cease to exist as the new Act will replace all of them.

The Acts being repealed are:
Local Government Act 1993 Act No. 83 of 1993
Local Government Amendment Act 1995 Act No. 35 of 1995
Local Government Amendment Act (No. 2) 1995 Act No. 36 of 1995
Local Government Amendment Act (No. 3) 1995 Act No. 57 of 1995
Local Government Amendment Act 2000 Act No. 4 of 2000
Local Government Amendment Act 2002 Act No. 28 of 2002
Local Government Amendment Act 2004 Act No. 15 of 2004
Local Government Act 2007 Act No. 15 of 2007

Part 20.2 Transitional provisions

261 Definitions
This clause begins the transitional provisions for the implementation of this Act and sets the “date of transition" as 1 July 2008 and "former act" as the Act that is formed of all the Acts repealed by this Act.

262 Constitution of new councils
(1) This clause says that on 1 July 2008, new shire councils are created from existing prospective councils. All councils in the new shire area are dissolved and subsumed into the shire. The clause operates to transfer to the new shire council all the property, assets and liabilities of the previous councils.

(2) The by-laws of the previous councils continue in force in the same area to which they applied until they are amended or repealed by the new shire council.

(3) The appointed manager of the prospective council will continue to act in the capacity of manager of the shire until the conclusion of the first general election after the date of transition.

(4) The manager, until such a time mentioned above, continues to exercise all the powers and functions of the council.

(5) In a case where a special majority would be required for council to exercise a power (for example, choosing whether the President/Mayor will be popularly elected or nominated by council), the Manager may only exercise the power if they are satisfied that there is substantial support for the matter from the council’s electors. (The Manager should consult widely and perhaps invite submissions on the matter).

(6) A transfer of property which occurs under clause 262 is not liable to stamp duty.

263 Continuation of existing nominees, appointees etc.
If, immediately before the date of transition, a person holds a position on a board or committee or another body as an appointee of a council that is dissolved, the person continues in that position when the council is dissolved until the conclusion of the first general election. As Managers will be running the new shire councils until the conclusion of the first election, it is important that representatives on boards etc continue until the newly elected council can make nominations.

264 Continuation of existing councils
(1) Councils which are not being dissolved into shires continue in existence as they were immediately before the date of transition.

(2) By-laws of continuing councils continue and can be varied or revoked by by-laws made under this new Act.

(3) A code of conduct adopted by a continuing council before the date of transition continues and can be varied or revoked under the new Act.

(4) The budget of a continuing council, or a prospective council established under the former Act, for the 2007/2008 year which complies with the former Act is deemed to comply with the requirements of the this Act.

265 Roads
(1) Roads that were vested in the Territory immediately before the date of transition remain at the date of transition vested in the Territory.

(2) This clause provides that a road under subclause (1) is subject to any agreement between the Territory and the council in relation to the vesting of the road in the council and any other proper dealing with the road by the Territory.

266 Approved proposal for rating conditionally rateable land in the 2008/2009 financial year
(1) Councils (including prospective councils) which will have conditionally rateable land in the 2008/2009 financial year would not, but for this clause, be able to rate that land.

This clause provides that a proposal in relation to conditionally rateable land in a council area (or proposed council area) which has been approved by the Minister before 31 May 2008 for the 2008/2009 financial year, becomes an approved rating proposal for the purposes of clause 142 on the date of transition. An approved rating proposal will remain in force until the end of the 2008/2009 financial year.

(2) This subclause clarifies that the reference to a prospective council above is one that is constituted by a restructuring order and which becomes a shire council on the date of transition.

267 Rating limitations for early period of the operation of this Act
(1) The Minister can, by Gazette notice, impose limits on rates (rate capping) for the financial years of 2008/2009, 2009/2010 and 2010/2011.

(2) If the Minister caps rates, it can be a general capping of rates or a limited capping of rates.

(3) The power of the Minister to cap rates only applies to shire councils and conditionally rateable land of municipal councils.

(4) The Minister can, by Gazette notice, vary or revoke rates the Minister has capped under this clause.

268 Dissolution of Binjari Community Government Council
(1) This clause provides that the Binjari Community Government Council is dissolved. Binjari Community Government Council voluntarily ceased operations and was voluntarily taken over by Katherine Town Council in 2006.

(2) When Binjari Community Government Council is formally dissolved, any remaining assets and liabilities will become the assets and liabilities of Katherine Town Council.


Schedule 1 Regions

This schedule identifies the three regions for the purposes of this Act.

Region 1 consists of Tiwi Islands Shire Council, Darwin City Council, City of Palmerston (Palmerston City Council), Top End Shire Council, West Arnhem Shire Council and East Arnhem Shire Council.

Region 2 consists of Roper-Gulf Shire Council, Victoria-Daly Shire Council and Katherine Town Council.

Region 3 consists of Barkly Shire Council, Central Desert Shire Council, MacDonnell Shire Council and Alice Springs Town Council.


Schedule 2 Code of conduct – core provisions
This clause sets out in a schedule the core provisions of the code of conduct that is required to be adopted by members of council.

1 Honesty and integrity
A member must act honestly and with integrity in performing official functions.

2 Care and diligence
A member must act with reasonable care and diligence in performing official functions.

3 Courtesy
A member must act with courtesy towards other members, council staff, electors and members of the public.

4 Conduct towards council staff
A member must not direct, reprimand, or interfere in the management of, council staff.

5 Respect for cultural diversity
A member must respect cultural diversity and must not therefore discriminate against others or the opinions of others on the ground of their cultural background.

6 Conflict of interest
A member must, if possible, avoid conflict of interest between the member's private interests and official functions and responsibilities. Where a conflict in fact exists, the member must comply with the member's statutory obligations of disclosure.

7 Respect for confidences
A member must respect the confidentiality of information obtained in confidence in the member's official capacity. A member must not make improper use of confidential information obtained in an official capacity to gain a private benefit or to cause harm to another.

8 Gifts
A member must not solicit or encourage gifts or private benefits from any person who might have an interest in obtaining a benefit from the council.

9 Accountability
A member must be prepared at all times to account for the member's performance as a member and the member's use of council resources.

10 Interests of municipality or shire to be paramount
A member must act in what the member genuinely believes to be the best interests of the municipality or shire. In particular, a member must seek to ensure that the member's decisions and actions are based on an honest, reasonable, and properly informed judgment about what will best advance the best interests of the municipality or shire.



Schedule 3 Repealed Acts
This schedule relates to clause 258 which provides that the following Acts are repealed. This Act will replace all of these Acts.

Local Government Act 1993 Act No. 83 of 1993
Local Government Amendment Act 1995 Act No. 35 of 1995
Local Government Amendment Act (No. 2) 1995 Act No. 36 of 1995
Local Government Amendment Act (No. 3) 1995 Act No. 57 of 1995
Local Government Amendment Act 2000 Act No. 4 of 2000
Local Government Amendment Act 2002 Act No. 28 of 2002
Local Government Amendment Act 2004 Act No. 15 of 2004
Local Government Act 2007 Act No. 15 of 2007

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