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Local Government Amendment
(Elections) Bill 2008
Introduction Print
EXPLANATORY MEMORANDUM
General
The purpose of this Bill is to amend the Local Government Act 1989 and
the City of Melbourne Act 2001 to facilitate the conduct of local
government elections.
Clause Notes
PART 1--PRELIMINARY
Clause 1 sets out the purposes of the Bill.
Clause 2 provides that the Bill will come into operation on 15 August
2008. This is necessary to enable the changes to be implemented
for the next general election.
PART 2--AMENDMENT OF THE LOCAL GOVERNMENT
ACT 1989
Clause 3 amends definitions in section 3(1) of the Local Government Act
1989 (the Act).
Subclause (1) amends the definition of corporation to exclude a
statutory corporation. This will mean that a statutory corporation
constituted by or under State or Commonwealth law, that owns or
occupies rateable property, will not be eligible to appoint a
director or company secretary to vote in Council elections.
Subclause (2) amends the definition of election period by altering
the commencement of the election period from the entitlement
date to the last day of nominations. This means that provisions
limiting the actions of Councils prior to elections will apply for a
period of 32 days instead of 57 days.
561281 1 BILL LA INTRODUCTION 10/6/2008
Subclause (3) amends the definition of person to exclude a
statutory corporation. This operates in conjunction with the
amendment to the definition of a corporation in subclause (1).
Subclause (4) amends the definition of public notice to allow a
Registrar or returning officer to determine the newspaper in
which to publish a public notice when it is their responsibility to
give the relevant notice.
Subclause (5) amends the definition of rateable property to
exclude a property that is used solely for the purpose of parking a
single vehicle or mooring a single vessel. This means that a
person or corporation whose only claim to an entitlement would
be in relation to such a property may not exercise the right of
entitlement to vote in Council elections.
Clause 4 substitutes a new section 11(5)(c) for the existing
sections 11(5)(c) and (d) of the Act. This will mean, as a result
of the operation of section 11(7) of the Act, that all appointments
of voting representatives by corporations that own rateable
property will be valid for one single term of the Council, as
currently applies for corporations that only occupy rateable
property.
Clause 5 amends section 13 of the Act.
Subclauses (1) and (3) amend sections 13(1)(c) and 13(7)
respectively, for consistency with sections 11(2) and 22(1) of the
Act.
Subclause (2) amends section 13(1)(d) by specifying that owners
of rateable property should only be enrolled without application
if they are not residents of the municipality. This will avoid
duplicating enrolments for people who are both property owners
and residents on the State roll. An owner of rateable property
who is a resident and who is not on the State roll will retain the
right to apply to enrol under section 14 of the Act.
Clause 6 amends section 14(1)(c) of the Act for consistency with
section 11(2) of the Act.
Clause 7 amends sections 15(1)(c) and 15(6) of the Act for consistency
with sections 11(2) and 22(1) of the Act.
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Clause 8 amends section 16 of the Act.
Subclauses (1) and (2) amend section 16(1) for consistency with
sections 11(2) and 11(6) of the Act.
Subclauses (3) and (6) amend sections 16(2) and 16(5) to ensure
that a corporation that is a joint owner or occupier of rateable
property is not excluded from a right to appoint a voting
representative in a Council election only because one or more of
the other joint owners or occupiers is a corporation.
Subclause (4) corrects an incorrect reference in section 16(4).
Subclause (5) amends sections 16(5) and 16(8) for consistency
with section 11(2) of the Act.
Subclause (7)(a) amends section 16(9) as a consequence of
subclause (2).
Subclauses (7)(b) and (8) amend sections 16(9)(a) and
16(10)(a)(i) to clarify that a corporation whose relevant office
bearers are not titled "director" or "company secretary" may
apply to appoint a person holding an equivalent position as its
voting representative for a Council election.
Clause 9 substitutes a new section 17 for sections 17 and 18 of the Act.
The new section provides--
· that the Chief Executive Officer of the Council must
enrol a person for whom he or she received a notice or
application for enrolment unless the Chief Executive
Officer believes that the person is not entitled to be
enrolled under the Act;
· that, if the Chief Executive Officer refuses to enrol a
person, he or she must give written advice of the
reasons for the refusal;
· the Chief Executive Officer may request any person to
provide information orally or in writing to enable the
determination of a person's entitlement to be enrolled;
and
· that it is an offence for a person to knowingly give false
information to the Chief Executive Officer in writing
and a maximum penalty of 20 penalty units is
prescribed.
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Clause 10 repeals section 19 of the Act, which required a person to notify
the Chief Executive Officer if there was a change to their
enrolment entitlement and imposed a maximum penalty of
3 penalty units for a failure to give notice.
Clause 11 amends section 20(1) of the Act in order to limit silent voter
applications under the Act to persons enrolled as ratepayers.
Persons enrolled as residents are entitled to apply to be silent
voters under section 31 of the Electoral Act 2002.
Clause 12 amends section 23A of the Act.
Subclause (1) amends section 23A(1)(a) to clarify that a person
entitled to enrol is not compelled to do so.
Subclause (2) substitutes a new section 23A(1)(b) for sections
23A(1)(b) and (c) as a consequence of clause 4.
Subclause (3) substitutes a new section 23A(2). This is a
transitional provision which ensures that any person or
corporation, whose enrolment entitlements are altered by the
enactment of this Bill, receives written notification of the
changes in sufficient time to exercise any relevant right of
entitlement before the next general election.
Subclauses (4) and (5) insert new sections 23A(4A) and (4B)
to empower the Registrar to specify an exhibition roll for a
by-election that is more recent then the entitlement date for the
last general election. This will allow more current records to be
used in preparing an exhibition roll for a by-election.
Subclause (6) substitutes section 23A(6) to specify that the
Registrar must make the exhibition roll available for public
inspection for a period of 5 days.
Clause 13 inserts a new section 24(2A) in the Act which limits the ability of
a person to change their enrolment from one ward of a Council to
another in order to vote in a by-election unless the change is
justified by a change in the person's circumstances.
Clause 14 inserts a new section 37(2) in the Act to require the Chief
Executive Officer of a Council to notify the Minister within
3 days if the Council chooses to fill an extraordinary vacancy that
occurs in the six months preceding a general election.
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Clause 15 amends section 38 of the Act in relation to the setting of dates for
by-elections:
· New subsection (1AA) specifies that the period for
determining the date for a by-election--
· starts on the day that a Council decides to fill a
vacancy that occurs in the six months prior to a
general election; or
· starts on the date that a returning officer
determines that a vacancy cannot be filled by a
countback.
· New subsection (1AB) provides for the Minister to set a
by-election date that is up to 150 days after the vacancy
occurs, rather than 100 days, if the Minister considers
that the election process will be adversely affected by
the Christmas and New Year holiday period.
· New subsection (1AC) allows the Minister to specify an
earlier entitlement date when exercising a power
conferred by subsection (1AB) and requires the Minister
to publish the election date and the entitlement date in
the Government Gazette.
Clause 16 amends section 40(1) of the Act to clarify that compulsory voting
for residents only applies to people who are enrolled on the State
electoral roll for an address in the ward or district.
Clause 17 amends section 41A of the Act.
Subclauses (1) and (2) insert new subsections (2A) and (2B) to
qualify the power of a Council, under subsection (1) to decide
whether to conduct an election by postal or attendance voting:
· New subsection (2A) specifies that a general election
must be conducted using the same voting system as the
previous general election unless the Council decides to
change the voting system at least 8 months before the
election.
· New subsection (2B) specifies that a by-election must
be conducted using the same voting system as the last
general election unless the Council decides to change
the voting system within 7 days after the vacancy
occurs.
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Subclause (3) repeals subsection (3A) as a consequence of the
amendments to Schedule 2 of the Act by clause 26(1).
Clause 18 inserts a new section 55(4) in the Act to specify that an address
for the authorisation of electoral material does not include a post
office box.
Clause 19 amends section 55A of the Act by--
· removing the limitation to the election period of
provisions that prohibit misleading or deceptive
electoral matter. This means that the prohibitions will
apply at all times;
· makes minor amendments to the wording of the Act for
the purpose of consistency.
Clause 20 amends section 62(6) of the Act to change the definition of the
donation period that applies to the disclosure of election
campaign donations. The amendment removes an anomaly that
would have resulted in no donation period being defined for
elections in newly formed wards.
Clause 21 amends section 62B(7) of the Act in the same manner and for
similar reasons to clause 20.
Clause 22 amends section 68A of the Act.
Subclause (1) inserts new provisions to allow a Councillor to
resign and continue in office until the position is filled by a
by-election or countback and to specify that a Councillor who
has resigned may not continue in office after the by-election or
countback has been declared.
Subclause (2) repeals subsection (5) as a consequence of
subclause (1).
Clause 23 amends section 70 to limit the ability of a person to nominate for
a Council if they have lost their position on the Council for a
specified failure to undertake the responsibilities of office.
Subclause (1) inserts new subsections (2A) and (2B):
· New subsection (2A) specifies that a person who has
ceased to be Councillor of a Council because they--
· failed to take the oath of office within 3 months
of being declared elected;
· were absent for 4 consecutive ordinary Council
meeting without obtaining leave; or
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· were dismissed by an order of the Minister
because they failed to attend and remain at a call
of the Council without a reasonable excuse--
may not nominate election to that Council for a period
of 4 years.
· New subsection (2B) specifies that subsection (2A)
applies if the person ceased to be a Councillor on a
ground in subsection (2A) on or after the provision
came into operation.
Subclause (2) amends subsection (6) to provide that a nomination
in contravention of subsection (2A) is void.
Clause 24 repeals section 193(8) as a consequence of the amendments to
Part 6 of Schedule 3 of the Act by clauses 31 and 32.
Clause 25 inserts a new section 238A in the Act which specifies that it is an
offence to knowingly make a false declaration under the Act or
the regulations. This will apply to declarations made by
candidates, scrutineers and voters in local government elections.
The proposed maximum penalty is 20 penalty units.
Clause 26 amends Schedule 2 to the Act in regard to nominations for
election.
Subclause (1) amends a number of provisions to specify that the
closing date for nominations will be the 32nd day before election
day. This will mean that the close of nominations for attendance
elections will be the same as for postal elections.
Subclauses (2) and (3) amend provisions to specify that
nominations close at 12 noon on the last day for nominations,
instead of 4 p.m.
Subclause (4) inserts new provisions in clause 5 of Schedule 2 of
the Act:
· New subclause (1A) requires a candidate to sign the
declaration on the nomination form in the presence of
the returning officer.
· New subclause (1B) provides for a candidate who is
unable to sign the declaration in the presence of the
returning officer to provide a statutory declaration.
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Clause 27 substitutes clause 6(3A) of Schedule 2 to the Act to specify that a
candidate who is not on the voters roll and who submits a
statutory declaration that he or she is entitled to be enrolled must
also specify the ground on which he or she claims to be entitled
and the steps taken to be enrolled.
Clause 28 amends clause 14(2) of Schedule 2 to the Act to allow the
returning officer to use manual or electronic means to determine
the order of candidates on the ballot paper by lot.
Clause 29 amends clause 11B(27)(2)(c) of Schedule 3 to the Act to correct
an anomaly in the prescribed counting procedure for a
proportional representation count.
Clause 30 amends clauses 14(1) and 14(3) of Schedule 3 to the Act to
require the returning officer to prepare a report to the Chief
Executive Officer on the conduct of the election within 3 months
after election day and for the Chief Executive officer to submit
the report to the Council at the earliest practicable meeting.
Clause 31 repeals clause 16 of Schedule 3 to the Act. This provision
specified the procedure for one tenth of voters to request a poll
within 30 days of the relevant public notice. As all provisions
specifying relevant public notices have been repealed or replaced
by previous amending Acts, this clause of the Act has no current
application.
Clause 32 amends clause 17 of Schedule 3 to the Act as a consequence of
clause 31 of the Bill. The provision removes references to people
who requested a poll, provides for the Minister to appoint a
scrutineer and requires the Minister to be notified of the result of
a poll.
Clause 33 substitutes a new clause 2 of Schedule 3A to the Act with a
requirement for the returning officer to exclude from a countback
any candidate that the returning officer knows is dead or has
otherwise ceased to be eligible.
Clause 34 amends clause 3(4) of Schedule 3A to the Act as a consequence
of clauses 33 and 35 of the Bill.
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Clause 35 substitutes new clauses 4 to 7A of Schedule 3A to the Act to
specify new countback processes that apply to both manual and
electronic countbacks:
· New clause 4 states that if there are no eligible
candidates, the countback fails.
· New clause 5 specifies that if there is only one eligible
candidate the returning officer must invite that
candidate to complete a declaration that he or she is still
eligible. If the candidate completes the declaration
within 14 days, he is she is declared elected. Otherwise
the countback fails.
· New clause 6 specifies the process that applies if there
is more than one eligible candidate. The returning
officer must give notice of the countback within 14 days
and then conduct the countback within 14 days of that
notice.
· New clause 7 requires the returning officer to make
reasonable efforts to notify the successful candidate and
invite him or her to complete the declaration that he or
she is still eligible. If the successful candidate fails to
complete the declaration within 48 hours, the process is
repeated until a candidate is successful and completes
the declaration or until the countback fails.
· New clause 7A specifies that if the countback fails, the
returning officer must notify the Chief Executive
Officer and a by-election must be held.
Clause 36 amends clause 8 of Schedule 3A to the Act as a consequence of
clauses 15 and 35 of the Bill.
Clause 37 inserts a new clause 10 in Schedule 3A to the Act to specify that
the countback may be conducted manually or by electronic
means and to specify the conditions under which the returning
officer may use electronic means. New clause 10 substantially
restates the existing clause 20 of Schedule 3A to the Act, which
is repealed by clause 38 of the Bill.
Clause 38 repeals Part 3 of Schedule 3A to the Act. This amendment
removes the separate process for an electronic countback, as the
amended provisions in Part 1 of the Schedule will now apply to
both manual and electronic counts.
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PART 3--AMENDMENT OF THE CITY OF MELBOURNE
ACT 2001
Clause 39 amends the definition of rateable property in section 3 of the
City of Melbourne Act 2001 (the Melbourne Act) to exclude a
property that is solely used for the purpose of parking a single
vehicle or mooring a single vessel. This means that a person or
corporation whose only claim to an entitlement would be in
relation to such a property may not exercising right of entitlement
to vote in Melbourne City Council elections.
Clause 40 amends sections 9A(3)(d) and 9A(5)(d) of the Melbourne Act by
specifying that owners or occupiers of rateable property should
only be enrolled without application if they are not residents of
the municipality. This will avoid duplicating enrolments for
people who are property owners or occupiers and who are also
residents on the State roll. An owner or occupier of rateable
property who is not on the State roll will retain the right to apply
to enrol under section 9B of the Act.
Clause 41 amends section 9C(3) of the Melbourne Act to clarify that a
corporation whose relevant office bearers are not titled "director"
or "company secretary" may apply to appoint people holding
equivalent positions as its voting representatives for Melbourne
City Council elections.
Clause 42 amends sections 9D(2) and (3) of the Melbourne Act in like
manner to the amendment to section 9C(3) by clause 41 of the
Bill.
Clause 43 amends section 10 of the Melbourne Act in order to limit silent
voter applications under the Melbourne Act to persons enrolled
as ratepayers. Persons enrolled as residents are entitled to apply
to be silent voters under section 31 of the Electoral Act 2002.
Clause 44 amends section 11C of the Melbourne Act.
Subclause (1) substitutes a new section 11C(2). This is a
transitional provision which ensures that any person or
corporation, whose enrolment entitlements are altered by the
enactment of the Bill, receives written notification of the changes
in sufficient time to exercise any relevant right of entitlement for
the next general election.
Subclause (2) substitutes a new section 11C(5) to specify that the
Registrar must make the exhibition roll available for public
inspection for a period of 5 days.
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Clause 45 amends clauses 8(1) and (7) of Schedule 1 to the Melbourne Act
to provide for an alternative form of the ballot paper for an
election of Councillors at the Melbourne City Council if there are
20 or more groups of candidates.
Clause 46 amends clause 10(1) of Schedule 1 to the Melbourne Act as a
consequence of clause 45 of the Bill.
Clause 47 amends the title of schedule 2 to the Melbourne Act to indicate
that the form of the ballot paper in Schedule 2 applies if there are
fewer than 20 groups.
Clause 48 inserts a new Schedule 3 to the Melbourne Act which contains
the form of the ballot paper for Councillor elections if there are
20 or more groups of candidates.
PART 4--REPEAL OF AMENDING ACT
Clause 49 provides that this Act is repealed on the first anniversary of its
commencement. The repeal of this Act does not affect in any
way the operation of the amendments made by this Act (see
section 15(1) of the Interpretation of Legislation Act 1984).
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