Northern Territory Explanatory Statements

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LOCAL GOVERNMENT AMENDMENT BILL 2014

LOCAL GOVERNMENT AMENDMENT
BILL 2014

LEGISLATIVE ASSEMBLY OF THE NORTHERN TERRITORY

MINISTER FOR LOCAL GOVERNMENT

Serial No. 73

EXPLANATORY STATEMENT

GENERAL OUTLINE

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

The main purpose of the Bill is to clarify specific provisions in the Act and to streamline certain processes. It also expands on the law relating to disciplinary committees, portability of long service leave and the length of time that material must be kept on a council website.

NOTES ON CLAUSES


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 2014 (the Amendment Act).

Clause 2 Commencement

Except for the amendments in clauses 16 and 18, the Amendment Act will commence upon assent from the Administrator. The amendments to subsection 128(2) of the Act, in clause 16, will commence on 1 July 2014 and the amendments to subsection 142(2) of the Act, in clause 18, will commence on 1 December 2014.


Part 2 Amendment of Local Government Act

Clause 3 Act amended

This clause advises that this Part of the Bill amends the Local Government Act.

Clause 4 Section 3 amended

This clause amends the definition provision, section 3 of the Act by inserting, in alphabetical order, the words “eligible person”. Eligible person is defined in new section 80(1) as a person on the list of persons who are eligible to be appointed as a disciplinary committee member.

Clause 5 Section 37 amended

This clause replaces the current example at section 37 with a fresh example. This change has been made as the previous example referred to the Central Desert Shire Council, which has now become the Central Desert Regional Council. The new note gives an example of a person who lives in the council area of Alice Springs and is employed by the council of another area. It explains that such a person is not disqualified from being a council member of Alice Springs Town Council.

Clause 6 Section 39 amended

This clause amends subsection 39(4) by replacing it with new subsections 39(4)(a) to (e). This subsection makes provision for the CEO of a council to notify the Electoral Commissioner when council member vacancies occur.

If the vacancy arises due to the death of a council member, the CEO must notify the Electoral Commissioner as soon as practicable after the CEO becomes aware of the death.

If the vacancy arises because the member ceases to hold office as a result of being disqualified from office or the member ceases to be enrolled as an elector in respect of a place of residence within the area, the CEO must notify the Electoral Commissioner as soon as practicable after the CEO is informed of the casual vacancy.

If the vacancy arises because the member ceases to hold office as a result of being absent, without permission of the council, from two consecutive ordinary meetings of the council, the CEO must notify the Electoral Commissioner as soon as practicable after the CEO becomes aware of that fact.

If the vacancy arises because the member has resigned by written notice given to the CEO, the CEO must immediately notify the council and notify the Electoral Commissioner as soon as practicable.

If the vacancy arises because the member is removed from office on disciplinary grounds by the Minister under Part 7.5 of the Act, the CEO must notify the Electoral Commissioner as soon as practicable after the CEO becomes aware of the removal.

In all of the above cases, despite the provision of “as soon as practicable”, the CEO must notify the Electoral Commissioner no later than 10 days after the CEO becomes aware of the vacancy.

Clause 7 Section 42 amended

This clause replaces the words “Darwin City Council” in subsection 42(2)(a) with “council for the City of Darwin local government area”. This is because the name of the council changed, by Gazette notice, on 9 August 2012, to “City of Darwin”.

Clause 8 Section 61 amended

This clause amends subsection 61(6) so that it prescribes that not only does a council member have one vote, but that vote must also be exercised. This has the effect that council members participating in a meeting cannot abstain from voting.

The clause further amends subsection 61(6) so that it prescribes that if the council has a policy allowing the Chair to exercise a casting vote, in the event of an equality of votes, the Chair must exercise the casting vote.

A council member who fails to exercise his or her vote as required or a Chair of a council who fails to exercise their casting vote in the event of an equality of votes, could be in breach of the code of conduct (see section 79 of the Act).

Clause 9 Section 79 amended

This clause replaces subsection 79(3) of the Act and provides that a complaint of a breach of code of conduct is to be dealt with by a disciplinary committee in accordance with Division 2 of Part 7.4 of the Act.

Clause 10 Section 80 replaced

This clause replaces section 80 of the Act with new sections 80, 80A, 80B, 80C and 80D.

New section 80 provides that the Minister may appoint persons who are eligible to be members of disciplinary committees. A member of a disciplinary committee must be from one of three classes. The three classes are legal practitioners nominated by the Attorney-General, nominees of the Minister, or nominees of the Local Government Association of the Northern Territory (LGANT).

New section 80A provides that a person appointed as an eligible member of a disciplinary committee holds office for 3 years or a shorter period if the period is specified in the appointment. A person who has been appointed is eligible for reappointment. The terms and conditions on which an appointed person holds office may be determined by the Minister.

New section 80B provides that a person appointed as an eligible member of a disciplinary committee ceases to be eligible if they resign in writing to the Minister, their term of office ends and they are not reappointed, or their appointment is terminated under new subsections 80C(1) or (2).

New section 80C provides that the Minister may terminate the appointment of a person appointed as an eligible member of a disciplinary committee, for reasons of inability, inefficiency, misbehaviour or physical or mental incapacity.

Further, the Minister must terminate the appointment of a person appointed as an eligible member of a disciplinary committee if they cease to be a member of the class to which they were appointed under subsection 80(2); if the person is found guilty of an offence, the nature of which means that it is inappropriate for the appointment to continue; if the person becomes bankrupt, applies to take the benefit of a law for the relief of bankrupt or insolvent debtors, or compounds with creditors or makes an assignment of the person's remuneration for their benefit.

When the Minister terminates an appointment, it must be done in writing.

New section 80D provides that the Agency must, as soon as practicable after a complaint of breach of code of conduct is lodged, constitute a disciplinary committee consisting of three persons, one from each class mentioned in subsection 80(2) and refer the complaint to that disciplinary committee.

The disciplinary committee must appoint a chair from among its members and the chair coordinates the work of the committee.

Clause 11 Section 81 amended

This clause amends subsection 81(1) of the Act to make reference to the new subsection 80D(1)(b). The section now provides that the disciplinary committee to which a complaint is referred under subsection 80D(1)(b) may summarily reject the complaint under certain specified conditions.

The clause goes on to insert new subsections 81(2A) to (2J). The parties to a hearing of an alleged breach of code of conduct are entitled to legal representation under new subsection 81(2A).

Pursuant to new subsection 81(2B), the disciplinary committee can gather evidence as it sees fit. It is not bound by the rules of evidence although the rules of natural justice apply.

New subsection 81(2C) provides that disciplinary committee proceedings are to be open to the public unless the committee considers it is desirable, in the public interest, to hold them in private.

Pursuant to new subsection 81(2D), the committee may require a person to appear before it to give evidence on oath, to provide written answers to questions and verify those answers by statutory declaration and/or to produce documents or other evidentiary materials in the person's possession or control.

New subsection 81(2E) stipulates that a requirement made under new subsection 81(2D) must be made by giving the person a notice in writing. The notice should state the subject matter of the complaint, set out what is required and fix or allow a reasonable time for compliance with the requirement.

New subsection 81(2F) provides the same privileges and immunities as a witness in proceedings before the Supreme Court to a person giving evidence to a disciplinary committee.

New subsection 81(2G) makes it an offence if a person engages in conduct which contravenes a requirement under new subsection 81(2D). The maximum penalty is 100 penalty units or imprisonment for 6 months.

Pursuant to new subsection 81(2H), strict liability applies to new subsection 81(2G)(b).

However, under new subsection 81(2J), it is a defence to a prosecution for an offence against new subsection 81(2G) if the defendant establishes a reasonable excuse.

In relation to subsection 81(4)(c) of the Act, the current penalty of 20 penalty units is replaced with 120 penalty units. The increase ensures the penalty is contemporary and consistent with the penalty at new subsection 81(2G).

Finally, the clause inserts new subsection 81(4A) which provides that the disciplinary committee must make their decision as soon as practicable after the conclusion of the proceeding and must notify of the decision to the parties in writing, without delay.

Clause 12 Sections 81A and 81B inserted

This clause inserts new sections 81A and 81B after section 81 of the Act.

New section 81A applies where a disciplinary committee is dealing with a matter and one of the members vacates office or cannot continue. In either of these circumstances, the Agency must nominate a replacement member who must be from the same class (the classes are mentioned at new subsection 80(2)) as the member who has vacated office or cannot continue. The committee so formed must continue to conduct the proceeding.

New section 81B provides that publication of a report of the proceedings of a disciplinary committee is absolutely privileged. Furthermore, publication of a fair report of proceedings or findings is protected by qualified privilege. Absolute privilege and qualified privilege are defences under the Defamation Act.

Clause 13 Section 82 amended

This clause amends section 82 of the Act so that it provides that a party to proceedings before a disciplinary committee may appeal to the Local Government Tribunal, within 28 days after the date of notification of the decision.

Clause 14 Section 96A inserted

This clause inserts new section 96A after section 96 of the Act. New section 96A provides that a council must adopt, by resolution, a caretaker policy. Section 277, which would be inserted by clause 26 of the Bill, would require that the first caretaker policy must be adopted not later than 12 months after commencement. The policy must be in accordance with any Ministerial guidelines and govern the conduct of the council and its staff for the period commencing on nomination day for a general election and ending when the result of the general election is declared.

Clause 15 Section 109 amended

This clause amends subsection 109(1) of the Act by replacing words so that the subsection provides that a person who leaves the employment of one employer and enters the employment of another within 3 months, may elect to transfer accrued and accruing rights to long service leave under this section. It should be noted that for the purposes of section 109 of the Act, “employer” means a council for an area within the Territory, a local government subsidiary formed with the Minister's approval or LGANT.

The clause replaces subsection 109(2) of the Act with new subsections 109(1A), (1B), (2) and (2A). These subsections provide that as soon as practicable after an employee enters into employment, an employer must require the employee to provide a written declaration within 28 days, stating whether the employee was employed by another employer in the previous three months, and whether the employee elects to transfer accrued and accruing rights to long service leave. The employer’s obligation is to be carried out no later than 5 days after the employee enters into employment. However, a failure to comply with this timeframe does not invalidate the requirement.

If the employee does not make such a declaration, they will be considered not to have elected to transfer accrued and accruing rights to long service leave. If the employee declares an election to transfer such rights, the later employer must notify the former employer within 3 months. The former employer must respond within 30 days and advise the later employer, of the employee’s accrued and accruing rights to long service leave appearing in the former employer's records.

The former employer must, also within the 30 days, pay the later employer the amount of the provision for long service leave in the former employer's accounts. If this amount remains unpaid after the 30 days, it may be recovered by the later employer as a debt due in a court of competent jurisdiction.

Clause 16 Section 128 amended

This clause amends section 128 of the Act by amending subsection 128(2) and inserting new subsection 128(2A). Subsection 128(2) of the Act is amended so that the subsection now provides that after a council has adopted its budget for a particular year, it may adopt an amendment to its budget subject to the conditions in new subsection 128(2A).

New subsection 128(2A) provides that an amendment to the council’s budget cannot have the effect of increasing allowances for council members for that financial year. Local authority member allowances may only be changed in accordance with Ministerial guidelines.

Clause 17 Section 141 amended

Subsection 141(a) of the Act is amended so that the subsection now applies to conditionally rateable land that is not within the ambit of a notice published under section 142 that is in force.

Clause 18 Section 142 amended

This clause replaces words in subsection 142(2) of the Act so that the subsection now provides that conditionally rateable land is only rateable in accordance with a notice published by the Minister at least 2 months before the commencement of the financial year for which the rates are declared.

Further, this clause replaces subsections 142(3) to (8) of the Act with new subsections 142(3) to (5). These subsections provide that a council may make submissions to the Minister in relation to conditionally rateable land. Before the Minister publishes the notice under subsection 142(2) of the Act, the Minister must consider any council submissions received at least 5 months before the beginning of the relevant financial year and must consult with the Minister responsible for the pastoral sector and the Minister responsible for the mining sector.

After the notice has been published in the Gazette, the council must publish the notice on its website as soon as practicable. Similarly, the Agency must publish the notice on its website.

Clause 19 Section 144 amended

This clause amends section 144(1)(g) of the Act which is part of the list of land that is exempt from rates. The subsection will now provide that a kindergarten, Government school as defined in section 4(1) of the Education Act, a non-government school registered under the Education Act, or a university or other tertiary educational institution is exempt from rates.

The clause also replaces section 144(1)(j) with a new subsection which includes common property of a scheme formed under the Unit Title Schemes Act. The common property in a units plan or building development plan registered under the Real Property (Unit Titles) Act, or of a scheme formed under the Unit Title Schemes Act, is exempt from rates.

Clause 20 Section 157 amended

This clause amends subsection 157(2) of the Act by inserting a requirement that the declaration of a charge must, as well as stating the amount of the charge and identifying the land which it applies to, also state the purpose of the charge.

Clause 21 Section 200 amended

This clause replaces the words at the beginning of section 200 of the Act so that it provides that the section is subject to section 200A.

Subsection 200(e) of the Act is amended by adding reference to subsections 67(4) and 68(3). New subsection 200(ha) is inserted to include the council's budget and any amendment to the council's budget (see section 128(3) of the Act).

This clause also replaces words in subsection 200(i) so that it refers to an approved rating proposal or a notice in relation to conditionally rateable land (see section 142(5) of the Act).

Clause 22 Section 200A inserted

This clause inserts new section 200A after section 200 of the Act. New section 200A provides for the length of time that the material mentioned at section 200 of the Act must be on a council’s website.

In relation to the council's draft and final municipal, regional or shire plans (see subsection 200(c) of the Act), a draft plan need not be available on the website after the final plan is made available on the website. A final plan can be taken off the website if 3 years have elapsed since the last day of the period to which the plan relates.

The constitution of a local government subsidiary for which the council is a constituent council (see subsection 200(d) of the Act) need not be on the website if 3 years have elapsed since the subsidiary ceased to exist. However, during the 3 years when the material is available on the website, a note indicating the date on which it ceased to exist should appear with the constitution.

Notices and minutes of meetings of the council, local authorities, local boards, council committees and electors (see subsection 200(e) of the Act) must be on the website until 3 years have elapsed since the day on which the meeting was scheduled, or when the meeting was held, if it was held on a later date than the scheduled date.

The statement of the level of allowances and expenses to be paid to members (see subsection 200(f) of the Act) need not be available if 3 years have elapsed since the last day of the relevant financial year.

In relation to an entry in the register of members' interests (see subsection 200(g) of the Act), the entry must be available on the website until 3 years have elapsed since the conclusion of the next general election after the entry was made.

The council's code of conduct (see subsection 200(h) of the Act) need only be on the website while it is in force.

The council's budget and any amendment to the council's budget (see subsection 200(ha) of the Act) must be available for 3 years after the last day of the financial year for which the budget or amendment was adopted.

Approved rating proposals or notice of conditional rates (see subsection 200(i) of the Act) need not be available if 3 years have elapsed since the last day of the financial year for which the approved rating proposal or notice was published.

Notices of the declaration of rates (and charges) (see subsection 200(j) of the Act) need not be available if 3 years have elapsed since the last day of the financial year for which the rates were published.

Notices of the council's intention to sell land, by auction, for non-payment of rates (see subsection 200(k) of the Act) need not be available if the land has been sold or the sale has been called off.

Notices of the council's assumption of the care, control and management of land (see subsection 200(l) of the Act) need not be available if 3 years have elapsed since the last day of the financial year during which the council published the notice on the website.

Notices of an application by the council to the Supreme Court for variation of a trust or an order made on such an application (see subsection 200(m) of the Act) need not be available if 3 years have elapsed since the last day of the financial year during which the order was made.

Notices of a proposed by-law the council intends to make (see subsection 200(n) of the Act) need not be available after the by-law is made or the proposed by-law is defeated.

The council's annual reports (see subsection 200(p) of the Act) need not be available if 3 years have elapsed since the last day of the relevant financial year.

The clause further provides that if material is not available on the council’s website, the council must allow members of the public to inspect copies of the material at the council's office in accordance with the regulations without paying a fee. The provision also states that the council must provide a copy of the material in accordance with the regulations to a member of the public who pays the appropriate fee.

Note that the Local Government (Administration) Regulations provide for the lodgement of primary records in the Northern Territory Archives 6 years after the date of the last entry and for destruction or disposal of a secondary record if it is no longer required for the conduct of the affairs of the council or for audit purposes.

Clause 23 Section 213 amended

This clause inserts new subsection 213(1A) after subsection 213(1) of the Act to explain what a surcharge consists of. The amount of a surcharge must not exceed the total amount of loss suffered by the council together with the amount incurred by the council to recover the surcharge.

Clause 24 Chapter 20, Part 20.5 inserted

This clause inserts transitional provisions for the Amendment Act. Firstly, it inserts the heading, “Transitional provisions for Local Government Amendment Act 2014”. It then inserts new sections 276, 277 and 278.

New section 276 concerns disciplinary committees and applies in relation to a person who was, immediately before the commencement of the section, a member of a disciplinary committee established by the Minister under the Act. From the commencement of this section, such a person is taken to be appointed under new subsection 80(1) of the Act to the class to which the person belonged when the disciplinary committee was established. Their term of office is taken to be 3 years from the date of commencement of this section.

New section 277 provides that a council must adopt a caretaker policy as required by new section 96A within 12 months after the commencement of the section.

New section 278 applies to a person who, immediately before the commencement of this section, was an employee to whom section 109 of the Act applied. The employee may, within 12 months from the date of commencement of this section, provide a declaration to their employer stating that they elect to transfer accrued and accruing rights to long service leave from a previous employer. Such a declaration applies as though it were a declaration under subsection 109(2) of the Act.

Clause 25 Schedule 2 amended

This clause amends the heading of Clause 10 of Schedule 2 of the Act. The Schedule provides the core provisions for a local government council’s code of conduct. Clause 10 provides that a member must act in what the member genuinely believes to be the best interests of the municipality, region or shire. However, the heading of Clause 10 does not contain the word “region”. As such, the word “region” is inserted into the heading of Clause 10 so that it reads:


Part 3 Other laws amended

Clause 26 Other laws amended

This clause provides that the Schedule amends the laws mentioned in it.


Part 4 Expiry of Act

Clause 27 Expiry of Act

This clause provides that the Act expires the day after it commences. Once the amendments are made, there is no need for these provisions to stay on the Statute Books.


Schedule

There is an amendment to regulation 10(2) of the Local Government (Accounting) Regulations in the Schedule. The amendment replaces regulation 10(2) so that it now provides that the CEO must establish and maintain a plan to detect and prevent fraud from within and outside the council and also establish and maintain an audit committee. The audit committee is to monitor compliance by the council with proper standards of financial management, the regulations and Accounting Standards. The Chairperson of the audit committee must not be a member of council or a member of the council's staff.

The schedule also amends various Acts and Regulations to enhance consistency with the Local Government Act and definitions of “local government area” and “local government council” recently inserted into the Interpretation Act.

 

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