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17 Sep 12
Local Government and Other Legislation Amendment Bill 2012

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On 13 September 2012, the Local Government and Other Legislation Amendment Bill 2012 (LGOLAB 2012) was introduced into the Queensland Parliament.

The LGOLAB 2012 proposes a number of significant amendments to the Local Government Act 2009 (LGA) and the City of Brisbane Act 2010 (Qld) (COBA) which are aimed at giving effect to a number of published policies of the Government outlined during election earlier this year.

The LGOLAB 2012 also provides for amendments to a number of other Acts. This edition of Focus will deal primarily with the amendments to the LGA, most of which are replicated in the COBA.

Joint local governments

In the repealed Local Government Act 1993 (Qld), there were a number of provisions dealing with the ability of individual local governments to enter into ‘joint local government’ arrangements. An example of where this occurred related to the management of Mission Beach between the former Johnstone Shire and Cardwell Shire Councils.

Such arrangements were not carried forward in the LGA but are proposed to be reinstated by the LGOLAB 2012.

Local laws

Under the proposed amendments, the minister no longer needs to approve proposed local laws. That State approval process had been a feature of the system for a number of years. The local law making process is essentially left to the local governments but, having regard to the local government principles in the LGA, will involve public consultation. The amendments clarify that public consultation need not occur for an interim local law or a local law that only incorporates a model local law and does not contain an anti competitive provision.

Current restrictions on making a local law about ‘development’ are intended to remain but in a slightly less onerous form. To address issues with so called ‘party houses’, there is an express provision allowing a local government to make a local law that makes the owner of residential property liable to a penalty because of excessive noise regularly emitted from the property.

The relevant safeguard in terms of the minister no longer needing to approve local laws is that an express power is conferred on the minister to suspend a local law for a stated period or indefinitely or revoke the local law in certain limited circumstances.

Beneficial enterprises and corporatisation of business activities

The LGOLAB 2012 proposes to avoid duplication by expressly stating that a local government may enter into a ‘beneficial enterprise’ for the purposes of the Statutory Bodies Financial Arrangements Act 1982 (Qld). Relevant approval processes will now occur under that Act with most of the prescriptive requirements in the LGA intended to be repealed.

The corporatisation of business activity provisions is intended to be repealed under the LGOLAB 2012 with the explanatory notes stating that corporatisation processes can occur within the framework of the Corporations Act 2001 (Cth).

Roads

The proposed amendments relating to this issue are not substantive and are largely for clarification purposes.  For example, it is stated that the Council is not liable for the construction, maintenance or improvement of a private road.

Financial management

The amendments relating to financial management are largely of a clarification and streamlining nature.  The existing long term community plan and financial plan requirements are intended to be repealed.

Powers to enter a property

Currently, under the LGA, a ‘remedial notice’ (e.g. an enforcement notice under the Sustainable Planning Act 2009 (Qld)) needed to be issued to the owner of land in order to provide for a potential recovery of costs incurred by Council in undertaking work in accordance with the remedial notice as a rate.  The LGOLAB 2012 provides that the ability to recover these costs as a rate can still occur if the notice is issued to an occupier of property.

Nomination of candidates for election to the Queensland Legislative Assembly

The LGA currently prevents a person being a councillor at the same time as being a candidate for election to the Queensland Legislative Assembly.  The LGOLAB 2012 repeals that restriction.

Provisions relating to Councillors

The LGA provided for a number of cumbersome provisions relating to which types of councillors were able or not able to hold a full time government job.  Those restrictions are proposed to be repealed under the LGOLAB 2012.

The LGA also provided for restrictions on councillor requests for advice.  There needed to be a nexus to the advice sought and a ‘decision’. That nexus is proposed to be repealed by the LGOLAB 2012 and relate only to advice to assist a councillor carrying out his or her responsibilities.  However, there are still intended to be guidelines put in place which must be complied with by all councillors other than the mayor or the chairman of a Council committee if the request relates to the role of the chairperson.  The amendments propose that the guidelines will be made by a resolution of Council rather than the chief executive officer.

The LGOLAB 2012 also provides amendments to reflect an intention that the position of mayor holds a status of significant importance.  For example, the mayor is charged with the responsibility of preparing the budget for presentation to Council.

A new offence is provided in the legislative amendments which are relevant to councillors in relation to ‘insider information’.  The maximum penalties are substantial and include imprisonment.

Clarification is also provided in relation to the material personal interest (MPI) and conflict of interest (COI) provisions.  For example, a councillor who is a member of a sporting club is noted to expressly not have a COI unless that person is an office holder of that club.  Generally, the amendments are not as onerous for councillors as the current LGA provisions.

There are some minor amendments to the complaint process involving councillors which enable preliminary assessments to be undertaken.  In addition, the Chief Executive of the Department of Local Government will retain a discretion as to whether a complaint about ‘misconduct’ does in fact fall within that particular category or some other category.

The LGOLAB 2012 also provides for voter polls to be taken to inform Council decision making.

Disciplinary action – local government employees

The LGOLAB 2012 clarifies that a local government chief executive officer need not necessarily be the only person to take disciplinary action against a local government employee.

There are also amendments proposed to the appeal procedures for local government employee disciplinary actions to be provided for under a regulation.  The intention is that the Queensland Industrial Relations Commission (QIRC) will be the applicable appeal body.

Proceedings by, or against, a local government

The Court of Appeal decision in Ipswich City Council v DixonBuild Pty Ltd [2012] QCA 98 is authority for imposing restrictions on a local government’s ability to commence prosecution proceedings under the Justices Act 1886 (Qld) through one of its public officers.  The LGOLAB 2012 clarifies that a local government will not be so restricted.

Re-corporatisation of local governments

Towards the end of the life of the repealed Local Government Act 1993, amendments were made to ‘de corporatise’ local governments.  The intention, at that time, was to clarify any uncertainty as to whether the then Commonwealth Government’s ‘Work Choices’ industrial relations laws applied to local governments.  The ‘de corporatisation’ policy was carried through to the LGA.

The LGOLAB 2012 reinstates the former position which is that a local government is a body corporate.

Powers relating to directions given to local government employees

The term ‘senior contract employee’ is intended to be replaced by a new definition of ‘senior executive employee’.  A ‘senior executive employee’, of a local government, is noted to be an employee of the local government who reports directly to the chief executive officer and whose position ordinarily would be considered to be a senior position in the local government’s corporate structure.

Consistent with the overall policy intent of the LGOLAB 2012 as it relates to the mayor, the current LGA provisions which allow the mayor to provide a direction to the chief executive officer will extend to a ‘senior executive employee’.  The current provisions which state that no councillor, including the mayor, may give a direction to any other local government employee will remain.

The appointment of a ‘senior executive employee’ is proposed to be established through a panel comprising of the mayor, the chief executive officer and either the chairperson of a committee or the deputy mayor.

A number of local governments have also provided specific or broad ranging delegations to local government chief executive officers.  The LGOLAB 2012 notes that any such delegation must be reviewed annually.

Possible de amalgamations

In 2007 and 2008 there were significant reforms to local government in Queensland through the amalgamation of a number of existing local governments.

The LGOLAB 2012 provides an opportunity for local governments to ‘de amalgamate’ if there is support in the local community but, significantly, the costs of any polls and de amalgamation procedures must be met by the relevant local government.  In practice, this may present a significant barrier to the ‘de amalgamation’ process, particularly in circumstances where substantial resources were directed to achieving the legislative reform requirements of 2007.

Significant changes

The LGOLAB 2012, if passed by the Queensland Parliament, will significantly change the current landscape for Queensland local governments.  However, the fundamental principles based approach of the LGA will remain.  Arguably, it is taken a step further through less State involvement and less prescription in relation to some provisions such as the ‘beneficial enterprise’ and financial arrangements provisions.

A local government mayor currently has a number of additional responsibilities to other councillors under the LGA.  The LGOLAB 2012 further extends the status and responsibilities of a local government mayor.

In a number of respects, the amendments are somewhat ‘back to the future’, particularly in relation to the reintroduction of a local government’s ‘body corporate’ status and also the ability to enter into ‘joint local government’ arrangements.

The Bill will be further considered by a Parliamentary committee and then returned to Parliament for further debate.

Focus covers legal and technical issues in a general way. It is not designed to express opinions on specific cases. Focus is intended for information purposes only and should not be regarded as legal advice. Further advice should be obtained before taking action on any issue dealt with in this publication.

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