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Local Government Amendment
(Offences and Other Matters) Bill 2009
Introduction Print
EXPLANATORY MEMORANDUM
General
The purpose of this Bill is to amend the Local Government Act 1989 (the
Principal Act) to increase the penalties for certain offences to reflect current
community expectations, to amend certain penalties for consistency with the
Sentencing Act 1991, to enhance the operation of the Local Government
Act 1989 and to make technical amendments to the City of Melbourne Act
2001.
Clause Notes
PART 1--PRELIMINARY
Clause 1 sets out the purposes of the Bill.
Clause 2 provides for the Bill to come into operation on a day or days to
be proclaimed and for any provisions not in operation on
1 September 2010 to come into operation on that day.
Clause 3 states that in the Bill, the Local Government Act 1989 is
referred to as the Principal Act.
PART 2--AMENDMENT OF PENALTY LEVELS
Clause 4 repeals section 17(5) of the Principal Act as a consequence of the
amendment of section 27(3) of the Principal Act by clause 6(5) of
the Bill.
Clause 5 amends section 24C of the Principal Act.
Subclause (1) amends subsection (3) to increase the penalty for
the misuse of a voters' roll by a candidate from 20 penalty units
to 120 penalty units.
561355 1 BILL LA INTRODUCTION 11/8/2009
Subclause (2) amends subsection (11) to increase the penalty for
the misuse of the voters' roll by any person provided with a copy
of the voters' roll under subsection (4) from 20 penalty units to
120 penalty units for a natural person and 600 penalty units for a
body corporate.
Clause 6 amends section 27 of the Principal Act.
Subclauses (1) and (2) amend subsection (1) to increase the
maximum penalty for a member of Council staff who
intentionally contravenes a provision of Division 2 of Part 3 of
the Principal Act (Voters' rolls) from 10 penalty units to
120 penalty units.
Subclauses (3) and (4) amend subsection (2) to increase the
maximum penalty for a person who alters the voters' roll without
authority, from 10 penalty units to 120 penalty units.
Subclause (5) substitutes a new subsection (3) to broaden the
scope of the existing provision by making it an offence to
intentionally provide misleading information in relation to a
person's enrolment entitlement or in regard to their enrolment
details. It also increases the maximum penalty from 10 penalty
units to 120 penalty units.
Clause 7 amends sections 52(1) and 52(2) of the Principal Act to increase
the maximum penalty for a person who nominates for election
when not entitled to nominate or become a Councillor from
20 penalty units to imprisonment for 2 years or a fine of
240 penalty units.
Clause 8 amends section 54 of the Principal Act.
Subclause (1) amends subsection (1) to increase the maximum
fine for interfering with the free exercise or performance of a
person's political right or duty in relation to an election, from one
penalty unit to imprisonment for one year or a fine of 120 penalty
units.
Subclause (2) substitutes a new subsection (5) to broaden the
scope of the existing provision and increase the penalty.
The new provision specifies that a person must not interfere with
or attempt to interfere with a voter when the voter is marking his
or her ballot paper and prescribes a maximum penalty of
imprisonment for one year or a fine of 120 penalty units.
The existing provision is limited to actions by scrutineers and has
a maximum penalty of one penalty unit.
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Clause 9 amends section 55(1) of the Principal Act to alter the maximum
penalty for a body corporate that fails to include authorisation
details on electoral material from 20 penalty units to 50 penalty
units.
Clause 10 amends sections 55A(1) and 55A(2) of the Principal Act to
increase the maximum penalty for a person who prints, publishes
or distributes misleading or deceptive electoral matter or who
prints, publishes or distributes a purported representation of the
ballot paper that is likely to induce a voter to incorrectly mark
their ballot paper--
· for a natural person, the maximum penalty is increased
from 10 penalty units to imprisonment for 6 months or a
fine of 60 penalty units; and
· for a body corporate, the maximum penalty is increased
from 20 penalty units to 300 penalty units.
Clause 11 amends section 55B of the Principal Act to alter the maximum
penalty for a body corporate newspaper proprietor that does not
print the word "advertisement" above paid electoral material from
20 penalty units to 50 penalty units.
Clause 12 amends section 55C(1) of the Principal Act to alter the maximum
penalty for a body corporate that prints, publishes or distributes a
newspaper, circular or pamphlet that includes material containing
electoral matter without setting out the name and address of the
material's author from 20 penalty units to 50 penalty units.
Clause 13 amends section 56 of the Principal Act.
Subclause (1) amends subsection (1) to increase the maximum
penalty for a person who distributes electoral material, other than
a registered how-to-vote card, within 400 metres of a voting
centre, from 10 penalty units to 60 penalty units.
Subclause (2) amends subsection (2) to increase the maximum
penalty for a person who prints, publishes or distributes an
unauthorised how-to-vote card from 10 penalty units to
60 penalty units.
Clause 14 amends section 58 of the Principal Act.
Subclause (1) repeals subsection (1).
Subclauses (2) and (3) amend subsection (2) to increase the
maximum penalty for various offences in relation to ballot
papers, including interfering with or taking a ballot box.
The existing maximum penalty is imprisonment for 2 years for a
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returning officer or other authorised person and 6 months for any
other person. The new maximum penalty is imprisonment for
2 years or a fine of 240 penalty units for any person.
Subclauses (4) and (5) amend subsection (3) to increase the
maximum penalty for various voting offences, including
impersonating a voter, from imprisonment for 6 months to
imprisonment for 2 years or a fine of 240 penalty units.
Subclauses (6) and (7) amend subsection (4) to increase the
maximum penalty for leaving a voting centre with a ballot paper
from one penalty unit to 10 penalty units.
Subclauses (8) and (9) amend subsection (5) to increase the
maximum penalty for failing to post a ballot paper for a person
after agreeing to post it from 5 penalty units to 10 penalty units.
Clause 15 amends section 58A(1) of the Principal Act to increase the
maximum penalty for a person who interferes with the delivery
of postal voting material from 10 penalty units to imprisonment
for 2 years or a fine of 240 penalty units.
Clause 16 amends sections 59(1) and 59(2) of the Principal Act to increase
the maximum penalty where a person offers, gives, requests or
receives a bribe in relation to an election from imprisonment for
2 years to imprisonment for 5 years or a fine of 600 penalty units.
Clause 17 amends section 60 of the Principal Act.
Subclause (1) amends subsection (2) to increase the maximum
penalty for a returning officer or other authorised person who
discloses information that defeats the secrecy of voting from
imprisonment for 6 months to imprisonment for one year or a
fine of 120 penalty units.
Subclause (2) repeals subsection (3)(a).
Subclause (3) amends subsection (3) to increase the maximum
penalty for attempting to obtain or communicate information
about which candidate a person voted for from imprisonment for
6 months to imprisonment for one year or a fine of 120 penalty
units.
Subclause (4) repeals subsection (4).
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Clause 18 amends section 61 of the Principal Act to alter the maximum
penalty for a returning officer or other authorised person who
wilfully or negligently acts in contravention of Part 3 of the
Principal Act from 20 penalty units to imprisonment for 6 months
or 60 penalty units.
Clause 19 amends section 62(7) of the Principal Act to alter the maximum
penalty for a person who fails to lodge a campaign donation
return or who provides false information in or for a campaign
donation return from 50 penalty units to 60 penalty units.
Clause 20 amends section 66 of the Principal Act to increase the maximum
penalty for a person who acts as a Councillor when incapable of
holding that office from 10 penalty units to imprisonment for one
year or a fine of 120 penalty units.
Clause 21 amends section 76D(1) of the Principal Act to increase the
maximum penalty for the misuse of position by a Councillor or
member of a Council special committee from 100 penalty units to
imprisonment for 5 years or a fine of 600 penalty units or both.
Clause 22 amends section 79(9) of the Principal Act to alter the maximum
penalty for a Councillor or member of a Council special
committee who fails to disclose a conflict of interest at a Council
or special committee meeting from 100 penalty units to
120 penalty units.
Clause 23 amends section 80A(3) of the Principal Act to alter the maximum
penalty for a Councillor who fails to disclose a conflict of interest
at an assembly of Councillors from 100 penalty units to
120 penalty units.
Clause 24 amends section 80B(2) of the Principal Act to alter the maximum
penalty for a member of Council staff who fails to disclose a
conflict of interest in respect of a delegated function from
100 penalty units to 120 penalty units.
Clause 25 amends section 80C(2) of the Principal Act to alter the maximum
penalty for a member of Council staff or a Council contractor
who fails to disclose a direct or indirect interest when providing a
report or advice to the Council or a special committee from
50 penalty units to 60 penalty units.
Clause 26 amends section 81 of the Principal Act to alter the maximum
penalties for breaches of section 81, relating to the register of
interests, from 50 penalty units to 60 penalty units.
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Clause 27 amends the definition of gross misconduct in section 81A of the
Principal Act to increase the penalty unit threshold for the
definition from 10 penalty units to 60 penalty units.
The threshold identifies the type of breaches that may be subject
to an application to VCAT for a finding of gross misconduct.
Clause 28 amends section 213(4) of the Principal Act to alter the maximum
penalty for a person who obstructs or hinders a Commissioner or
a person authorised by a Commissioner from carrying out their
duties from 50 penalty units to 60 penalty units.
Clause 29 amends section 220E of the Principal Act to increase the
maximum penalty for a member of a local government panel who
makes improper use of information acquired as a member of the
panel from 20 penalty units to 120 penalty units.
Clause 30 amends section 223C(1) of the Principal Act to increase the
maximum penalty for a person who fails to comply with a
requirement of an inspector of municipal administration or who
gives false information to an inspector from imprisonment for
2 years or a fine of 100 penalty units to imprisonment for 2 years
or a fine of 240 penalty units or both.
Clause 31 amends section 224(8) of the Principal Act to increase the
maximum penalty for a person who obstructs an authorised
officer or fails to give his or her correct name and address from
10 penalty units to 60 penalty units.
Clause 32 amends section 238 of the Principal Act to increase the maximum
penalty for a person who obstructs the Council or a member of
Council staff in the performance of anything the Council or
member is empowered to do from 10 penalty units to 60 penalty
units.
Clause 33 amends section 238A of the Principal Act to increase the penalty
for a person who knowingly makes a false written declaration
under the Principal Act or regulations in relation to an election
from 20 penalty units to 120 penalty units.
Clause 34 repeals section 240(1) of the Principal Act which is no longer
required.
Clause 35 amends section 243(3)(h) of the Principal Act to remove the
ability for regulations made under the Principal Act to prescribe a
penalty of imprisonment.
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PART 3--MISCELLANEOUS AND TECHNICAL
AMENDMENTS
Clause 36 inserts new definitions and makes amendments to existing
definitions in section 3(1) of the Principal Act.
Subclause (1) inserts new definitions--
· Council staff means the persons who are members of
Council staff;
· gift disclosure threshold means $200 or a higher
amount prescribed in the regulations;
· member of council staff means a natural person
employed by the Chief Executive Officer to enable the
functions of the council and the Chief Executive Officer
to be carried out. It does not include an independent
contractor or volunteer.
Subclause (2) inserts a note after the definition of public notice,
referring to the requirement in section 82A(2) to publish public
notices on the Council's internet web site.
Subclause (3) amends the definition of senior officer as a
consequence of the insertion of the definition of Council staff by
subclause (1).
Clause 37 amends section 27(1) of the Principal Act to extend the offence
and penalty for an intentional contravention of the Division
(Voters' rolls) by a member of Council staff to also apply to a
person employed or contracted to perform a function under the
Division.
Clause 38 amends section 29(2) of the Principal Act, which specifies
offences which, if a person is convicted, results in the person
becoming incapable of being a Councillor for 7 years.
Paragraph (a) amends section 29(2)(a) of the Principal Act to
insert an offence under section 66, where a person acts as a
Councillor when incapable of being a Councillor.
Paragraphs (b) and (c) amend section 29(2)(ab) of the Principal
Act to insert--
· offences under section 52(1) and 52(2), where a person
nominates for election as Councillor when not capable
of being a Councillor or nominating for election; and
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· an offence under section 54(1), where a person has
hindered or interfered with another person's rights in
regard to an election; and
· an offence under section 55A(2), where a person has
printed, published or distributed a purported
representation of the ballot paper that is likely to induce
a voter to incorrectly mark their ballot paper.
Paragraphs (d) and (e) amend section 29(2)(ab) of the Principal
Act to remove--
· section 56A, regarding a failure to hand how-to-vote
cards to an authorised person on request; and
· section 58(1), which is repealed under clause 14.
Clause 39 amends section 43(1) of the Principal Act as a consequence of the
insertion of the definition of Council staff by clause 35(1).
Clause 40 amends section 62 of the Principal Act.
Subclause (1) amends subsection (2)(b) as a consequence of the
insertion of the definition of gift disclosure threshold by
clause 36(1).
Subclause (2) inserts a new subsection (7A) to allow a Court to
make an order requiring a person to lodge a campaign donation
return that is not false or misleading in a material particular if the
person has been found guilty or convicted under subsection (7).
Clause 41 amends section 62B as a consequence of the insertion of the
definition of gift disclosure threshold by clause 36(1).
Clause 42 inserts new sections 66AA and 66AB after section 66 of the
Principal Act.
New section 66AA provides that a person found guilty of acting
as a Councillor when not capable of being a Councillor may be
ordered by the Court to return any allowances, reimbursements,
equipment or materials received when unlawfully acting as a
Councillor.
New section 66AB provides that a person who acts as a
Councillor when not capable of being a Councillor may be found
guilty of an offence, committed while acting as a Councillor, as if
he or she was a Councillor.
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Clause 43 inserts a definition of not-for-profit organisation in
section 76AA of the Principal Act. A not-for-profit organisation
is a body that operates exclusively for charitable, civil or social
purposes and does not share or allocate its funds or profits to its
owners, shareholders or executives.
Clause 44 amends section 76BA(c) of the Principal Act as a consequence of
the insertion of the definition of Council staff by clause 36(1).
Clause 45 amends section 76D(2) of the Principal Act by inserting a new
paragraph (f) to specify that a failure to disclose a conflict of
interest may be a circumstance constituting misuse of position.
Clause 46 substitutes a new section 78C(1) in the Principal Act.
The substitution qualifies the nature of an applicable gift for the
purpose of identifying a conflict of interest by excluding
reasonable hospitality received from a not-for-profit organisation
at a function or event that is attended by a Mayor, Councillor or
member of Council staff in an official capacity.
The text of the provision is also amended as a consequence of the
insertion of the definition of gift disclosure threshold by
clause 35(1).
Clause 47 amends section 79C(1) of the Principal Act.
Paragraph (a) amends section 79C(1) of the Principal Act to
clarify that the exemptions from conflict of interest, listed in
subsection (1), are limited to matters that only relate to those
exemptions.
Paragraphs (b) and (c) insert a new paragraph (j) in
section 79C(1) of the Principal Act to exempt a Councillor from
having a conflict of interest where the matter only relates to an
internal dispute involving the Councillor or to alleged
misconduct or serious misconduct by the Councillor, as defined
in section 81A.
Clause 48 inserts a new section 80(1AA) in the Principal Act to provide that
the Minister may exempt a person, other than a Councillor, from
any or all of the conflict of interest requirements applying to
Council and special committee meetings under section 79 of the
Act. The Minister must have regard to the nature of the conflict
of interest and may only grant an exemption if he or she is
satisfied that an extraordinary circumstance exists that justifies
the exemption and that the exemption is also in the public
interest.
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Clause 49 amends section 81 of the Principal Act.
Subclause (1) amends section 81(7)(e) as a consequence of the
insertion of the definition of gift disclosure threshold by
clause 36(1).
Subclause (2) makes a technical correction to section 81(13B) of
the Principal Act.
Subclause (3) amends section 81(14) of the Principal Act as a
consequence of the insertion of the definition of Council staff by
clause 36(1).
Clause 50 makes a technical correction to section 90(2) of the Principal Act.
Clause 51 repeals section 97B of the Principal Act which substantially
duplicates a regulation made under section 222 of the Principal
Act.
Clause 52 inserts new sections 111(5) and 111(6) in the Principal Act to
require a Council to--
· have regard to any guidelines made by the Minister
under section 111A when making a local law; and
· comply with any details prescribed in the regulations
when making local laws.
Clause 53 inserts a new section 111A in the Principal Act that provides for
the Minister to make and publish guidelines with respect to--
· the preparation, content and format of local laws; and
· details to be included in any explanatory documents for
a proposed local law.
Clause 54 amends section 115(1)(b) of the Principal Act to provide that the
ability of a local law to prescribe a penalty of 2 penalty units per
day for a continuing contravention of the local law after a
conviction may also be prescribed to apply after a finding of
guilt.
Clause 55 amends section 119 of the Principal Act to specify that a Council
must ensure that a copy of a proposed local law and any required
explanatory document is available for inspection, and obtainable
from, the Council office during ordinary office hours.
Clause 56 inserts a note at the foot of section 120(2) of the Principal Act,
referring to the requirement in section 82A(2)(b) to publish local
laws on the Council's internet web page.
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Clause 57 amends section 169 of the Principal Act and inserts new sections
169(1D) and 169(3) to provide that a Council may grant a rebate
or concession in relation to the payment of any rate or charge to
support the provision of affordable housing by a registered
agency within the meaning of section 4(1) of the Housing Act
1983.
Clause 58 makes a technical correction to section 186(5A)(c) of the
Principal Act.
Clause 59 amends section 196 of the Principal Act.
Subclause (1) amends section 196(7)(a) of the Principal Act to
provide that section 75C of the Act, regarding facilities and
resources for Councillors, does not apply to regional libraries.
Subclause (2) amends section 196(7A) of the Principal Act to--
· exclude reference to section 75C of the Principal Act;
and
· provide that a member of a regional library board does
not have a conflict of interest only because the person is
a member of Council staff.
Clause 60 amends clause 10(1)(a) of Schedule 5 to the Principal Act as a
consequence of the insertion of the definition of Council staff by
clause 36(1).
Clause 61 inserts a new clause 17A in Schedule 12 to the Principal Act to
provide that regulations may be made with respect to the
preparation and content of local laws.
PART 4--TECHNICAL AMENDMENTS TO CITY OF
MELBOURNE ACT 2001
Clause 62 makes a technical amendment to references in section 5(1) of the
City of Melbourne Act 2001.
Clause 63 makes a technical amendment to references in section 27B(3) of
the City of Melbourne Act 2001.
Clause 64 repeals section 32(2) of the City of Melbourne Act 2001, which
is a spent provision.
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PART 5--REPEAL OF AMENDING ACT
Clause 65 provides that the amending Act is repealed on 1 September 2011.
The repeal of this Act does not affect the continued operation of
the amendments made by this Act (see section 15(1) of the
Interpretation of Legislation Act 1984).
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