Northern Territory Explanatory Statements

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LOCAL GOVERNMENT AMENDMENT BILL 2013

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LOCAL GOVERNMENT AMENDMENT BILL 2013


LEGISLATIVE ASSEMBLY OF THE NORTHERN TERRITORY

MINISTER FOR LOCAL GOVERNMENT


EXPLANATORY STATEMENT

GENERAL OUTLINE

This Bill amends the Local Government Act (the Act).

The purpose of this Bill is to strengthen local governance arrangements in regional and remote areas by:
· introducing regional councils as a new category of local government councils (in addition to municipal and shire councils);
· introducing local authorities whose primary role is to improve and enhance community involvement in local governance including involvement in council planning and budgeting;
· providing that the Minister may identify, through a Gazette notice, a part of any regional council that must have a local authority and that the regional council must then establish that local authority as set out in Ministerial Guidelines;
· providing that local authorities will consist of members of the regional council who represent the ward within which the local authority is situated and such other members of the community or communities within the local authority’s area who are appointed by the council according to Ministerial Guidelines;
· enabling the Minister to gazette core services for regional and shire councils;
· abolishing Regional Management Plans; and
· repealing Schedule 1 of the Act, which divides the Northern Territory into three regions.



PART 1 Preliminary matters

Clause 1 Short title

This is a formal clause which provides for the citation of the Bill. The Bill, when assented to, will be cited as the Local Government Amendment Act 2013.

As there is no commencement clause, the Amendment Act will commence when it receives the assent of the Administrator.


PART 2 Local Government Act amended

Clause 2 Act amended

This clause specifies that the Act being amended in Part 2 of the Bill is the Local Government Act (the Act).

Clause 3 Section 3 amended

This clause changes the definitions of “Chair” and “member” which currently refer to council, local boards and council committees, to include references to the local authority.

The clause also inserts new definitions of “council” and “local government council”. A council, for an area, means the council constituted for that area under section 7(b) of the Act. Local government council is also explained at section 7(b) of the Act.

Clause 4 Section 5 amended

This clause inserts the words “or performed” after “exercised’ in subsection 5(3) of the Act for consistency in drafting style. The provision now states that where the Act confers a particular power on, or assigns a particular power or function to the Agency, the power or function is to be exercised or performed by the Chief Executive Officer or some other person to whom the Chief Executive Officer has delegated the power or function.

Clause 5 Section 7 amended

This clause amends subsection 7(b) of the Act to clarify that a reference in the Act to a council refers to a local government council. This amendment is related to the new definitions of “council” and “local government council” being inserted into the Act.

Clause 6 Section 8 replaced

This clause replaces section 8 of the Act with a revised section, introducing the new form of classifying local government areas as regions. It also adds the consideration of geographical size to the existing considerations of the density of population and degree of urbanisation when classifying councils.

Clause 7 Section 9 amended

This clause amends subsection 9(1)(b) of the Act to allow the Administrator to determine whether a local government area is a municipality, region or shire. Note that section 9(1)(2) of the Act allows the Minister to exercise this power as well.

The clause also introduces new subsections 9(1)(ba), (bb) and (bc) which allow for a municipality, region or shire to change from one form to either of the other two forms. That is, a municipality can be changed into a shire and vice versa, a municipality can be changed into a region and vice versa and a region can be changed into a shire and vice versa. This allows maximum flexibility as local government develops into the future.

This clause also inserts a new subsection (2A) into section 9 of the Act so that when a Gazette notice changes the name of a local government area or council, any reference to the area or council is to be read as if it referred to the area or council with its new name.

Clause 8 Section 11 amended

This clause amends subsection 11(f) of the Act by changing the words “carry out” to “perform” for consistency in drafting style.

Clause 9 Section 12 amended

This clause amends subsection 12(2) of the Act by changing the word “exercise” to “perform” for consistency in drafting style.

Clause 10 Chapter 3 heading amended

This clause deletes the words “regional and” from the heading of Chapter 3 of the Act as the chapter is now concerned with council planning at the local level.

Clause 11 Part 3.1 repealed

This clause repeals Part 3.1 of the Act which provided for regional management plans. Regional management plans no longer fit into the local government scheme.

Clause 12 Part 3.2 heading amended

This clause amends the heading of Part 3.2 of the Act so that it includes the word “regional”. This recognises that the part now covers the regional plans of regional councils.

Clause 13 Section 22 amended

This clause amends section 22 of the Act by including regional plans along with municipal and shire plans in the heading of the section as well as the actual provision. Each council must have a plan for its area. For a regional council the council plan is called a regional plan. The words “regional”, “regional council” and “regional plan” are inserted appropriately so that the requirements of accessibility on the council website, availability for inspection and availability for purchase, apply to a regional council plan in the same way as for a municipal or shire council plan.

Clause 14 Section 23 amended

This clause amends the heading of section 23 of the Act by including regional plans along with municipal and shire plans.

This clause also replaces subsection 23(1)(a) of the Act so that a regional plan, along with municipal or shire plans, must contain a service delivery plan for the period to which the plan relates and also contain council’s budget.

Further, subsection 23(1)(b)(i) of the Act is replaced so that a municipal, regional or shire plan must contain, or incorporate by reference, any long-term, community or strategic plans adopted by the council, the local authority or the local board which relate to the relevant period.

The word “regional” is added into subsection 23(2) of the Act so that a regional plan, as well as a municipal or shire plan, must include the assessment of matters mentioned at subsection 23(1)(c) of the Act (if any) made during the previous term of the council.

Subsection 23(3) of the Act is amended to include the word “regional” to explain that a municipal, regional or shire plan incorporates a plan or assessment by reference if it refers to the plan or assessment and includes a link or reference to a webpage on which the plan or assessment is accessible.

Clause 15 Section 24 amended

This clause amends section 24 of the Act by including regional plans along with municipal and shire plans in the heading of the section as well as the actual provision. These changes mean that a regional council must make its plans along similar timelines to other types of council.

Clause 16 Section 24A inserted

This clause inserts a new section 24A into the Act which provides that the Minister may, by Gazette notice, advise a regional or shire council of the services (core services) which in the Minster’s view, should be provided by council as a priority. The regional or shire council must consider such a list when adopting and renewing its plan.

Clause 17 Section 26 amended

This clause amends subsection 26(1)(a) of the Act by including the words “local authorities” so that the subsection provides that a council acts through local authorities, local boards, council committees, officers, staff and agents to whom the council has delegated powers or authorised to act on its behalf, and in the other ways specified in subsections 26(1)(b) and 26(1)(c) of the Act.

Clause 18 Section 32 amended

This clause amends subsection 32(2)(a) of the Act to enable a council to delegate to a local authority.

Clause 19 Section 41 amended

This clause replaces the word “exercise” with the word “performance” in subsection 41(1) of the Act for consistency in drafting style.

Clause 20 Section 42 amended

This clause amends subsection 42(3) of the Act by inserting the words “regional council” so that the principal member of a regional council is to have the title of President or Mayor as decided by the council.

Clause 21 Section 44 amended

This clause firstly amends subsections 44(1) to (3) of the Act by inserting “regional council” so that a principal member of a regional council can be appointed or elected to office.

The clause also inserts new subsections 44(6) and (7) to explain what happens to the manner of filling the principal member position if a shire is changed into a region or vice versa and if a shire or region is changed into a municipality. Where a shire is changed into a region or vice versa, the basis of filling the office of the principal member remains the same as it was before the change and can be changed in the future under subsections 44(3) to (5) of the Act.

Where a shire or region is changed into a municipality and the principal member has been an appointed one, the position remains an appointed position until the next general election, when it becomes an elected position.

Clause 22 Chapter 5 heading amended

This clause inserts “local authorities” into the heading of Chapter 5 of the Act. This is the chapter which includes the establishment of local authorities.

Clause 23 Section 48 amended

Part 5.1 of the Act provides for local boards. This clause amends section 48 of the Act to clarify that local boards are only relevant to municipalities and shires. See new Part 5.1A of the Act (Clause 28) for local authorities which are relevant to regions.

Clause 24 Section 49 amended

This clause amends subsection 49(1) of the Act to clarify that it is only municipal or shire councils which may establish local boards. See new Part 5.1A of the Act (Clause 28) for local authorities which are relevant to regions.

The clause also replaces the word “exercise” with “perform” in subsection 49(2) of the Act for consistency in drafting style.

Clause 25 Section 50 amended

This clause amends section 50(1) of the Act by inserting the words “municipal or shire”, clarifying again that local boards are only relevant to municipal and shire councils. See new Part 5.1A of the Act (Clause 28) for local authorities which are relevant to regions.

Clause 26 Section 51 amended

This clause inserts the words “municipal or shire” into subsection 51(1)(a) of the Act as local boards are only relevant to municipal and shire councils. This section deals with how local boards are constituted.

This clause also deletes the words “even though staff members may be disqualified from membership of the council itself”, which are superfluous as section 37(1)(d) of the Act specifically prohibits council members to also simultaneously be staff of the same council.

Clause 27 Section 52 amended

This clause replaces subsections 52(1)(c) to (e) of the Act so that the section no longer refers to “region” or “regional management plan”. The clause also clarifies that local boards are relevant for municipal and shire councils. See new Part 5.1A of the Act (Clause 28) for local authorities which are relevant to regions.

Clause 28 Chapter 5, Part 5.1A inserted

This clause inserts a new Part 5.1A into the Act providing for local authorities.

New section 53A provides that the object of the Part is to achieve effective integration and involvement of local communities in the system of local government as it relates to regions.

New section 53B provides that the Minister may, by Gazette notice, identify a regional council that must establish one or more local authorities and identify the part of the council's area as the location within which each particular local authority is to perform its functions. The regional council must establish local authorities as stipulated in the Gazette notice and must do so in accordance with Ministerial Guidelines. New section 53B also provides the Minister with the power to abolish a local authority.

New section 53C provides for two categories of members of a local authority. Firstly, the members of the regional council who represent a ward within which the local authority is situated, are automatically members of the local authority. Secondly, other members may be appointed by the council in the manner or by the processes specified in Ministerial Guidelines. The principal member of the council is a member ex officio of all local authorities of the council and may participate in any local authority meetings although they are not obliged to attend. Although council staff cannot be members of the council, they may be members of a local authority.

New section 53D provides for the functions of a local authority which are to involve local communities more closely in issues related to local government, ensure that local communities are given an opportunity to express their opinions on questions affecting local government and allow local communities a voice in the formulation of policies for the locality as well as policies for the area and the region. The local authority is also to take the views of local communities back to the regional council and act as advocates on their behalf. In addition, the local authority is to contribute to the development of the relevant regional plan, make recommendations to the council in relation to the council's budget and review expenditures by the council in relation to the part of the council's area within which the local authority performs its functions. Furthermore, the local authority is to perform any other functions assigned to it in Ministerial Guidelines.

New section 53E specifies that a local authority must comply with Ministerial Guidelines. In addition, and subject to Ministerial Guidelines, a local authority is subject to control and direction by its council.

New section 53F provides that a local authority and its council must provide each other with reports in accordance with Ministerial Guidelines. For example, guidelines might state that financial reports must be provided to a local authority or that a local authority report on local priorities must be provided to the council.

Clause 29 Part 6.2 heading amended

This clause amends the heading of Part 6.2 of the Act which refers to meetings of local boards and council committees to include the words “local authorities”.

Clause 30 Section 62 replaced

This clause replaces the previous section 62 of the Act which provided for timing of meetings of local boards and council committees, so that it now includes local authorities. A local authority meets at times determined by the local authority. However, this is subject to any Ministerial Guidelines and direction by council.

Clause 31 Section 63 amended

This clause amends section 63 of the Act to include local authorities. Meetings are convened by the Chief Executive Officer (CEO) of the Council. However, it is worth noting that the CEO can delegate this task under section 102 of the Act. The chair of a local authority can request that a meeting be convened.

Clause 32 Section 64 amended

This clause amends section 64 of the Act firstly by replacing subsection 64(1) of the Act with provisions that cater for local authorities. This section is about who chairs a meeting. For a local authority, the Chair is the member of the regional council who represents a ward within which the local authority's area is situated. If there is more than one member of the regional council who represents a ward within which the local authority's area is situated, the regional council appoints the council member who is to be the Chair.

If the Chair is not present at a meeting of a local authority, a member of the local authority who is also a member of the council chairs the meeting. If there is no such person, then a member of the local authority chosen by a majority vote of the members of the local authority present at the meeting is the chair.

The Chair of a local board and a council committee is a member appointed by the board or council, respectively. If the Chair of the local board or council committee is not present, then a member of the board or council committee (respectively), chosen by a majority vote of members present at the meeting chairs the meeting.

This clause also amends subsections 64(2) and 64(5) of the Act to include local authorities, so that a quorum at a meeting of a local authority is a majority of the members and a decision of a local authority is to be by majority vote of the members present at a meeting.

Lastly, this clause replaces subsection 64(6) of the Act with a provision which refers to procedures of a local authority, local board or council committee. These groups determine their own procedures subject to the Act, Ministerial Guidelines and direction by council.

Clause 33 Part 6.3 heading amended

This clause amends the heading of Part 6.3 of the Act which relates to provisions of general application to meetings of councils, local boards and council committees by including the words “local authorities”.

Clause 34 Section 65 amended

This clause amends subsection 65(1) of the Act to include local authorities. As a general rule, a meeting of a local authority must be open to the public.

Clause 35 Section 66 amended

This clause amends subsection 66(1) of the Act to include local authorities. The CEO may, if it becomes impracticable to proceed with a meeting of a local authority at the appointed time and place, postpone the meeting for up to 21 days. Note that the CEO can delegate this responsibility under section 102 of the Act.

Clause 36 Section 67 amended

This clause amends section 67 of the Act to include local authorities. Subsection 67(1) of the Act is amended so that the CEO must ensure that proper minutes of meetings of local authorities are kept.

Subsections 67(3) and (6) of the Act are also amended so that a local authority must confirm the minutes of a previous meeting (with or without amendment) as a correct record of the meeting, at the next meeting. Further, until the local authority has confirmed the minutes as a correct record of the meeting, the minutes must be marked as unconfirmed and no certified copy of, or extract from, the minutes is to be issued.

Clause 37 Section 68 amended

This clause replaces the previous subsection 68(2) of the Act which made provision for a local board to call a meeting of electors for its area, so that local authorities can also call such meetings.

Clause 38 Section 69 amended

This clause amends subsections 69(1) and (2) of the Act by including the words “local authorities” so that the Chair of a meeting of electors will be a person nominated by the local authority and the procedure at the meeting will, subject to any direction by the council or the local authority, be as determined by the Chair.

Clause 39 Section 71 amended

This clause introduces payment of allowances to local authority members. Firstly it replaces subsection 71(2) so that the allowance for a member of a council is to be at a rate fixed by the council (subject to guidelines issued by the Minister) for the relevant financial year.

New subsection 71(2A) provides that a member of a local authority is to be paid an allowance by the council to the extent that any guidelines, that the Minister may make and that apply in the relevant financial year, permit such an allowance to be paid.

New subsection 71(2B) provides that the allowance for a member of a local authority is to be fixed by the council in accordance with any guidelines that the Minister may make and that apply in the relevant financial year.

The clause also amends subsections 71(4) and 71(5) of the Act to include local authorities so that differential allowances may be fixed for members of a local authority and allowances are to be paid as determined by the council or by the Ministerial Guidelines, but are not to be paid in advance.

Clause 40 Section 72 replaced

This clause replaces the previous section 72 of the Act which provided for expenses of council members. Members of local authorities are also entitled to be paid or reimbursed reasonable expenses for travel and accommodation necessary for attending a meeting of the local authority or attending to business of the council in accordance with a prior resolution of the council.

Clause 41 Section 73 amended

This clause amends subsection 73(1) of the Act to include local authorities and provides that a member of a local authority has a conflict of interest in a question arising for decision by local authority if the member or an associate of the member has a personal or financial interest in how the question is decided. It is worth noting that subsection 73(2) of the Act provides for situations where a conflict of interest would not arise. Clause 42 Section 74 amended

This clause amends section 74 of the Act to include local authorities with regard to disclosure of a conflict of interest.

Subsection 74(1) of the Act now provides that, as soon as practicable after a member of a local authority becomes aware of a conflict of interest in a question that has arisen or is about to arise before the local authority, he or she must disclose the personal or financial interest that gives rise to the conflict at a meeting of the local authority and to the CEO. Under subsection 74(3) of the Act, a member of a local authority must not, without the Minister’s approval, be present at a local authority meeting while a question in which he/she has a conflict of interest is under consideration or participate in any decision on the question.

Under subsection 74(6) of the Act, the Local Government Tribunal may, on application by an elector or ratepayer, declare a decision of the local authority void, if the Tribunal finds that a member of the local authority participated in the decision of the local authority contrary to the provisions of section 74 of the Act.

Clause 43 Section 75 amended

This clause amends subsections 75(1) and 75(2) of the Act to include local authorities. It is an offence if a person discloses confidential information acquired as a member of a local authority. However, this section does not prevent the disclosure of confidential information for the purposes of carrying out functions as a member of the local authority 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 an local government inspector.

Clause 44 Section 76 amended

This clause amends subsection 76(1) of the Act to include local authority members. A person who makes improper use of information acquired as a member of a local authority is guilty of an offence. A member of a local authority makes improper use of information if he or she uses it to gain some private benefit, or to inflict harm on another.

Clause 45 Section 77 amended

This clause amends subsection 77(2) of the Act so that a council’s code of conduct also applies to members of local authorities as it does to members of local boards and council committees.

Clause 46 Section 107 amended

This clause amends subsection 107(3)(c) of the Act to clarify that members of a local authority are not staff members for the purposes of the section.

Clause 47 Section 108 amended

This clause amends subsection 108(4)(c) of the Act to clarify that members of a local authority are not staff members for the purposes of the section.

Clause 48 Section 126 amended

This clause deletes subsection 126(4) of the Act that refers to regional management plans which are no longer relevant. See Clause 11 that repeals Part 3.1 of the Act which provides for regional management plans.

Clause 49 Section 127 amended

This clause replaces subsection 127(2)(f) of the Act so that it ends with an “and”.

The clause also inserts a new subsection 127(2)(g) which provides that a council budget must contain any other information required by any guidelines that the Minister may make.

Clause 50 Section 128 amended

This clause amends subsection 128(2) of the Act to include local authorities. A council may, after adopting its budget for a particular financial year, adopt an amendment to its budget (but once allowances for the members of the council or of a local authority established by the council, for a particular financial year have been set, they cannot be changed by amendment).

The clause also amends subsection 128(4) of the Act so that it provides that a regional council's budget forms part of council's regional plan.

Clause 51 Section 131 amended

This clause amends subsection 131(3) of the Act so that Ministerial Guidelines may stipulate extra requirements in relation to the annual financial statement.

Clause 52 Section 133 amended

This clause amends subsection 133(3) of the Act by changing the position of the words “the person”, a drafting matter that assists the requirements of the section to flow more clearly.

Clause 53 Section 184 amended

Section 184 of the Act is concerned with management of public cemeteries by councils. Councils have the powers of a Board of Trustees for such cemeteries. This clause replaces subsections 184(2) and (3) of the Act by deleting references to regional management plans, which are no longer relevant (see Clause 11). The replacement provisions delete references to a regional management plan and a joint management committee under a regional management plan.

Clause 54 Section 199 amended

This clause replaces subsection 199(3) of the Act so that the annual report of a regional council must contain an assessment of the council's performance against the objectives stated in the regional plan (applying indicators of performance set in the plan), and an assessment of the activities of any local authority within the council's area.

Clause 55 Section 200 amended

Section 200 of the Act covers what information must be publicly available on the council's website and at the council's public office. This clause amends the section by deleting references to regional management plans. It also inserts references to plans of regional councils and notices and minutes of local authorities. The section now provides that draft and final regional plans must be publicly available as well as notices and minutes of local authorities.

Clause 56 Section 237 amended

This clause amends the note at section 237 of the Act on the jurisdiction of the Local Government Tribunal so that it includes declaring a decision of a local authority void where it is vitiated by conflict of interest.

Clause 57 Section 270

This clause replaces the word “exercise” with “performance” in subsection 270(1)(c) of the Act for consistency in drafting style.

Clause 58 Chapter 20, Part 20.4 inserted

This clause inserts a transitional provision in the Act. New Part 20.4 is titled “Transitional provisions for Local Government Amendment Act 2013”. It contains new section 275, which relates to the abolition of regional management plans (see Clause 11). This section provides that any regional management plan in force immediately before the date on which this section commences ceases to have any force as of that date and no rights, duties or obligations under such a plan may be enforced on or after that date.

Clause 59 Schedule 1 repealed

This clause repeals Schedule 1 of the Act. The schedule, which divides the Northern Territory into regions for the purposes of regional management plans, is no longer relevant. As regional management plans are being abolished, there is no need for these regions. A “region” is now the area of a regional council.

Clause 60 Schedule 2 amended

This clause amends Schedule 2 of the Act which sets out the minimum requirements of a council code of conduct. The schedule is amended so that it now includes references to “region”. Clause 10 of Schedule 2 now provides that, for a regional council member, the interests of the region are to be paramount.


PART 3 Other laws amended

Clause 61 Other laws amended

This clause provides a Schedule of consequential amendments to other Territory laws.

 

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