Queensland Bills Explanatory Notes Queensland Bills Explanatory Notes[Index] [Search] [Download] [Bill] [Help]
1
Local Government Amendment
LOCAL GOVERNMENT AMENDMENT
BILL 1994
EXPLANATORY NOTE
GENERAL OUTLINE
Objective of the Legislation
The Bill amends the Local Government Act 1993 to clarify the powers of
entry of authorised persons and to provide for other miscellaneous matters.
Reasons for the Bill
The Local Government Act 1936 contained provisions which allowed
local government officers to enter land or premises at all reasonable times in
the exercise of a local government's jurisdiction. These powers were very
broad.
The Local Government Act 1993 (the Act) introduced new powers of
entry for local government which commenced on 26 March 1994. The new
provisions were drafted having regard to the fundamental legislative
principles in the Legislative Standards Act 1992. One of the principles on
which legislation is based is to ensure sufficient regard is given to the rights
and liberties of individuals. This includes the conferring of powers of entry
to premises, and search for and seizure of documents or other property,
only with a warrant issued by a judge or other judicial officer.
As a result the Act permits entry to land or a structure for local
government purposes or for performing work for an owner or occupier
with the agreement of the owner and occupier or under an order issued by a
Magistrate. This general position is only relaxed if it is not practicable to
obtain the agreement of the owner or occupier and the circumstances dictate
that urgent action needs to be taken in the interests of public health or safety.
2
Local Government Amendment
A number of concerns have been raised by local governments in relation
to these powers. Local governments have identified the need for flexibility
in the powers of entry in a range of specific circumstances.
As an evolving area of law, the Bill draws on models developed in other
recent legislation to enable local government to exercise its jurisdiction at the
same time as recognising the rights of individuals.
The Act also contains provisions which require amendment to clarify
their intention, correct minor errors and extend dates in certain sunset
clauses. The Bill provides for these amendments.
Estimated Cost for Government Implementation
There are no additional costs incurred by the Government.
Consultation
A discussion paper containing proposals for the powers of entry was
developed by the Department in conjunction with the Department of Justice
and Attorney General, the Office of Parliamentary Counsel and Office of
the Cabinet and comments were sought from local government peak bodies
and a number of local governments.
Consultation with these groups was based on the Department's
discussion paper and subsequent drafts of the Bill.
The Local Government Association of Queensland (Inc.) has also been
consulted on the proposed miscellaneous amendments and has no objection
to them proceeding.
NOTES ON PROVISIONS
Clause 1 sets out the short title of the Act.
Clause 2 provides for miscellaneous amendments contained in Schedule
2 of the Bill to commence on assent with the balance of the amendments to
commence on a date fixed by proclamation.
Clause 3 provides for amendments to the Local Government Act 1993.
3
Local Government Amendment
Clause 4 inserts a new Part 2 to Chapter 11 dealing with powers of entry.
Section 655A provides that the power to enter a place must not be exercised
using force except by authority of an order made under section 658 or a
warrant issued under Part 5.
Clause 5 amends section 658 which deals with orders on occupiers who
refuse entry. The section applies to occupiers but does not limit the
application to owners where the owner is the occupier for the purposes of
the law (e.g. the owner of vacant land is the owner for the purposes of the
law and an order may be sought under this section).
The section is amended in a number of respects.
Section 658(2) is amended so that a person making an application for an
order must give written notice to the owner as well as the occupier of the
land or structure. This is an important element of natural justice to inform
the concerned persons action has been sought to be taken against them.
They may then respond to the proposed action.
Sections 658(3)--(4) are replaced with the following process for the
application and issue of an order by a Magistrate:--
The new sections 658(3) and (4) provide for particular information to be
included in an application for an order to enter land or structures and for a
Magistrate to require more information if necessary to consider the
application eg. supporting information may be required to be given by
statutory declaration.
Sections 658(5) and (6) provide for the Magistrate to make an order. The
order must contain particular information about its terms. The purpose of
these terms is to enable the applicant to enter but only at reasonable times
and within a time period set by the court.
Section 658(7) provides that an order may also authorise a person to use
necessary and reasonable help and force to enter the land or structure.
Section 658(8) requires a Magistrate to record the reasons for making the
order.
Section 658(9) requires the occupier to comply with the order.
Maximum penalty: 50 penalty units (currently equivalent to $3000).
4
Local Government Amendment
Clause 6 inserts a new section 661. The purpose of this section is to
enable a local government to enter a place to perform work ordered by the
local government to be performed. The section also deals with the
conditions applying to these powers of entry. If a local government has
issued a notice for an owner or occupier to perform work and the local
government wants to monitor compliance with the notice, entry is not made
under this section but under section 680H (described below).
Section 661(1) provides that a Local Government employee or agent
may enter land or a structure to perform work where an owner or occupier
has failed or both the owner and occupier have failed to perform work
required by an Act under which a local government exercises jurisdiction.
Section 661(2) requires the consent of the owner and occupier or an
order to be obtained as a condition of entry .
Neither of these conditions apply if:--
(a) urgent action is necessary for local government purposes such as
public health and safety; or
(b) reasonable notice has been given by the local government of its
intention to enter the land or structure to carry out the work eg.
entry for the purpose of the clearing of overgrown allotments
required under a local law.
Section 661(3) provides a restriction on entry to a structure or part of a
structure used for residential purposes. The section operates by only
allowing entry with the agreement of the owner and occupier or under a
court order. This restriction is designed to protect the rights of the individual
in relation to the control over entry to a residence.
Sections 661(4) and (5) provide for costs incurred by the local
government in carrying out work to be paid to the local government by the
person who failed to perform the work. Where both the owner and occupier
fail to perform the work, the parties are jointly liable for the payment of the
debt.
Clause 7 inserts a new section 665 dealing with entry on land for local
government purposes. The purpose of the section is to provide a local
government with powers of entry in the exercise of its jurisdiction under an
Act.
5
Local Government Amendment
Section 665(1) provides a broad power for an employee or agent of a
local government to enter land or structures for local government purposes
to exercise the jurisdiction of local government. The jurisdiction of local
government includes the jurisdiction under the Local Government Act and
other Acts. If another Act confers jurisdiction and particular entry powers
are contained in the Act then the powers of entry in this section and in the
Local Government Act do not override those specific powers.
Some examples of the purposes of entry that may be needed by local
government under this section are provided.
Section 665(2) requires the consent of the owner and occupier or a court
order as a condition of entry.
Neither of these conditions apply if:--
(a) entry is made for routine operations (eg. inspect, operate, change,
maintain, remove, repair or replace local government facilities on
the land or to investigate the future placement, removal, repair or
replacement of facilities); or
(b) urgent action is necessary for local government purposes such as
public health and safety eg. to remove a tree which is likely to fall
and cause injury or damage.
Section 665(3) provides that the exemption from obtaining consent of the
owner and occupier or a court order in subsection (2) for routine operations
cannot be used for entry to a structure or part of a structure used for
residential purposes. The section operates by only allowing entry to these
structures with the agreement of the owner and occupier, or under a court
order, or if urgent action is necessary for local government purposes such
as in the interests of public health and safety.
Clause 8 replaces Part 4 of Chapter 11 with a new Part dealing with
enforcement of Acts conferring jurisdiction on local government. The
purpose of this Part is to provide powers of entry for specially appointed
local government employees (called authorised persons) in the following
circumstances:--
(a) investigations about offences;
(b) monitoring compliance with approvals and notices issued by a
local government; and
6
Local Government Amendment
(c) carrying out inspection programs approved by the local
government.
Division 1--Interpretation
Section 674 provides for the meaning of various terms used in this Part.
Section 675 clarifies references to "local government" and "authorised
person" in this Part.
"Authorised person" refers to a person appointed by the local
government and "a local government" refers to the local government that
appointed the authorised person.
Section 676 provides for the appointment of authorised persons by the
local government. The local government must specify the circumstances for
which the authorised person is appointed--investigating offences,
monitoring approvals and notices or carrying out inspection programs. An
appointment may be for any one or more of these circumstances. The
power of appointment is a matter that may be delegated by the local
government, in accordance with the powers of delegation in the Act.
Section 677 provides for a limitation to be placed on an authorised
person's appointment in the instrument which confirms the appointment.
Section 678 provides the conditions upon which authorised persons are
appointed. The appointment of an authorised person is separate from the
process for appointment of a person as an employee of a local government.
The office of authorised person may be linked as a condition of
appointment to the position as employee of the local government, eg an
employee who ceases holding a particular office and is appointed to hold
another office could also automatically cease to be an authorised person.
Section 679 requires a local government to issue an identity card to each
authorised person. The identity card must contain particulars to describe the
person. It also provides for the card to be returned to the local government
within 21 days after the person ceases to be an authorised person. The local
government may take action against the person if the card is not returned
within the time specified. Maximum penalty: 10 penalty units (currently
equivalent to $600)
7
Local Government Amendment
The identity card may be used by a person for purposes other than for the
powers set out in this Part.
Section 680 requires an authorised person to display the identity card
whenever the authorised person is acting under this Part.
Section 680A provides for an offence if a person pretends to be an
authorised person. Maximum penalty: 50 penalty units (currently equivalent
to $3000)
Division 3--Infringement Notice Offences
Section 680B allows an authorised person to ask a person to state the
person's name and address. This is only possible if the authorised person
believes the person has committed or suspects the person has committed an
infringement notice offence. In doing so the authorised person may require
proof of the identity of the person. It is an offence to fail to give the name
and address unless the person has a reasonable excuse. Maximum penalty:
35 penalty units (currently equivalent to $2100)
Division 4--Investigations about offences
Section 680C enables an authorised person to enter a place for the
purpose of investigating offences provided the occupier is in agreement or
entry is permitted by a warrant. Entry by agreement or a warrant is not
necessary where entry is to a public place at a time when it is open to the
public or it is necessary to enter the place to seek the agreement of the
occupier to the entry. Entry to a place used for residential purposes to
investigate an offence would require the occupier's consent or a warrant.
Section 680D requires an authorised person to inform the occupier of a
place of the purpose for which entry is sought and to outline the occupier's
rights in relation to the entry request. If an occupier consents to the entry an
authorised person may request the occupier to evidence the consent by
completing an appropriate form of acknowledgment.
Section 680E provides for a court, in proceedings against an occupier, to
assume the occupier did not consent to the entry by an authorised person
unless an acknowledgment of consent can be produced in evidence.
8
Local Government Amendment
Division 5--Warrants
Section 680F provides for an authorised person to apply to a Magistrate
for a warrant to authorise entry to a place. The provision sets out the
requirements of the application, conditions for issue of a warrant by a
Magistrate and the details to be included in a warrant including the reasons
for the warrant being issued.
Section 680G provides for an authorised person to apply to a Magistrate
for a warrant by other means such as phone, facsimile, radio or in another
form of communication in urgent circumstances or where other special
circumstances exist e.g. the location of the place is remote. An authorised
person must prepare an application for a warrant but may apply to the
Magistrate before the application is sworn.
The provision sets out the administrative procedure to be followed by a
Magistrate and authorised person in relation to the issue of a warrant under
this section. It also provides for a Court in proceedings against an occupier
to assume the warrant was not issued unless the warrant is produced as
evidence.
Division 6--Monitoring authorisations and notices and processing
applications
Section 680H provides for an authorised person to enter a place at any
reasonable time during the day for the purposes of inspecting the place to
process an application made under an Act conferring jurisdiction on local
government or to monitor compliance with or inspect work being carried
out under an authorisation or notice. Entry for these purposes can occur at
night if the place is a public place and is open to the public at the time of the
entry or at the occupier's request or in accordance with a lawfully imposed
condition of an authorisation.
If an authorised person enters a place under this section for a monitoring
purpose and in so doing identifies an offence related to that monitoring
purpose the authorised person may proceed under section 680N to gather
evidence of an offence.
9
Local Government Amendment
There is no obligation on the authorised person to apply the process for
investigation about offence provisions in Division 4 in these circumstances.
However, if the authorised person identifies an offence not related to the
monitoring authorisation power the authorised person is obliged to apply
the process set out in Division 4 relating to investigations about offences.
Re-entry at a later point may be required for this purpose. If the authorised
person was not appointed by the local government to operate under
Division 4, an authorised person appointed for the purpose of that Division
would have to take up the matter.
Section 680I limits the powers of entry of an authorised person under
this Division in relation to a structure or part of a structure used for
residential purposes. Entry to such a structure may occur only if the
authorised person is accompanied by the occupier. This general position
does not apply if the authorised person gives the occupier reasonable notice
of the intention to enter and the occupier is unavailable or unwilling to
accompany the authorised person at that time or for some other reason the
occupier is unable to accompany the authorised person (eg the occupier is
disabled but permits the authorised person to enter the place).
Division 7--Approved inspection programs
Section 680J provides for authorised persons to enter places under
programs approved by resolution of a local government for the purpose of
monitoring compliance with an Act or a particular aspect of an Act
conferring jurisdiction on a local government. Examples are where a local
government monitors compliance with requirements of private swimming
pools under the Building Act 1975 or monitors compliance with limits on
the number of dogs that may be kept under a local law.
An approved inspection program may be either a selective or systematic
program. A selective program may be carried out on a selective basis
throughout the area or part of the area e.g. each third house in each street in
a particular part of the area. The local government would need to set out the
criteria for selecting places to be inspected. A systematic program would
include all places (or classes of places) in the local government area or part
of the area e.g. all commercial land used for snack bars in the area.
10
Local Government Amendment
The local government must include a number of matters in an approved
inspection program to properly describe its intent, purpose, operation and
the period over which it is to be conducted. An inspection program must
not operate for more than 3 months or another period prescribed by
Regulation.
If an authorised person enters a place under an approved inspection
program and in so doing identifies an offence related to the inspection
program the authorised person may proceed under section 680N to gather
evidence of an offence.
There is no obligation on the authorised person to use the investigation
about offence provisions in Division 4 in these circumstances.
However, if the authorised person identifies an offence not related to the
inspection program entry can only be effected under the requirements set
out in Division 4 relating to investigation about offences. Re-entry at a later
point may be required for this purpose. As indicated in section 680H, this
entry, could only be effected by an authorised person appointed to operate
under Division 4.
Section 680K requires a local government to publish a notice in a
newspaper circulating in the area at least 14 days but not more than 28 days
before the program commences of the intention to implement a selective or
systematic inspection program. The provision includes the particulars to be
included in the notice. The purpose of this requirement is to inform the
public that an inspection program will occur.
Section 680L provides for details about the approved inspection program
to be available for inspection or purchase at the local government public
office during the period the program is to be carried out.
Section 680M provides for an authorised person to enter premises under
an approved inspection program, other than a structure or part of a structure
used for residential purposes, at any reasonable time of the day.
Division 8--Powers on entry
Section 680N provides for general powers of authorised persons after
entering a place for the following purposes:--
· investigation about offences under Division 4;
11
Local Government Amendment
· monitoring authorisations and notices and processing applications
under Division 6; and
· undertaking approved inspections under Division 7.
The provision specifies the powers which may be exercised by an
authorised person in respect of the entry to places under the respective
Divisions 4, 6 and 7.
When entry is made to investigate offences under Division 4 an
authorised person may exercise any of the following powers:--
(a) search any part of a place; or
(b) inspect, test, photograph or test anything in the place; or
(c) copy documents; or
(d) obtain samples; or
(e) take persons, equipment and materials required to exercise the
powers; or
(f) require the occupier to give reasonable help to exercise the powers
listed above.
When entry is made to monitor authorisations and notices or to process
applications under Division 6 or under an approved inspection program
under Division 7, an authorised person may only exercise those powers at
(b), (c), (d), (e) and (f) listed above.
An authorised person may require the occupier to give reasonable
assistance in the exercise of the powers and a person must comply with the
requirement unless the person has a reasonable excuse. Maximum penalty:
8 penalty units (currently equivalent to $480).
It would be a reasonable excuse to fail to comply if supplying
information or producing a document (other than a document required to be
kept under the Act) might incriminate a person.
These powers cannot be exercised by an authorised person if entry is
made under section 680C(2)(b) merely to obtain the agreement of an
occupier for entry to investigate an offence.
12
Local Government Amendment
Division 9--Other enforcement matters
Section 680O requires an authorised person to give notice to a person if
any damage to property occurs as a result of the exercise of the powers by
the authorised person or persons assisting the authorised person under this
Part.
Section 680P enables a person who incurs a loss or expense as a result of
the exercise of the powers by an authorised person under this Part to claim
compensation from the local government for the loss or expense. It
provides for a Court to order compensation according to the circumstances
of the particular case and regulations may prescribe matters to be taken into
account by the Court in making a decision to order compensation.
Division 10--Special provision for local laws about dogs
Section 680Q provides for a local government to include in a local law
about dogs (or which includes the control of dogs) powers which permit
authorised persons to enter a place (including a place used for residential
purposes) with the force that is reasonable and necessary to seize or destroy
a dangerous dog within the meaning of the local law.
The power to seize dogs is not limited by other sections of this Chapter.
The provisions dealing with damage to property and compensation under
Division 9 apply.
The Division has a sunset clause of two years.
A model local law provision will be developed to assist local
governments in their consideration of the use of this power.
13
Local Government Amendment
SCHEDULE 1
CONSEQUENTIAL AMENDMENTS
The following amendments to the Act are necessary as a consequence of
amendments in clause 8 of the Bill:--
Clause 1 inserts a cross reference to "approved inspection program" in
the definitions under section 4.
Clause 2 inserts a cross reference to "authorised person" in the
definitions under section 4.
Clauses 3 and 4 amend the numbering of Chapter 11 so that Parts 2 and
3 become Parts 3 and 4 and Parts 5 to 7 become Parts 6 to 8.
Clause 5 provides for renumbering of the Act from section 680A in the
next reprint of the Act under section 43 of the Reprints Act 1992. The
renumbering is likely to occur within several months of proclamation of
this section of the Act and will mean that section 680A is renumbered as
section 681 and section 680B as section 682 and so on to section 680Q.
SCHEDULE 2
OTHER AMENDMENTS
Implementation of the new Act will be assisted by a range of
miscellaneous amendments to:--
· clarify certain provisions to ensure the meaning is clear;
· better achieve the desired intention;
· correct minor errors; and
· extend dates in certain sunset clauses.
14
Local Government Amendment
The following miscellaneous amendments are included in this schedule
of the Bill:--
Clause 1 corrects the reference to section 410 in the meaning of
"permissible company" by substituting "411" for "410".
Clause 2 corrects the citation to the Transport Infrastructure Act 1994 in
the definition of "road" by substituting "1993" with "1994".
Clause 3 includes a reference to local law policies in the meaning of
"State interest" in section 4. This brings the definition of State interest into
line with section 112, which enables a regulation to be made declaring that a
local law policy ceases to have effect in order to protect State interests.
Clause 4 extends section 195(3) so that a councillor must tell the chief
executive officer of particulars of interests (or of correct particulars) in
accordance with requirements in the regulations e.g. the regulations could
set different time periods for initial registration of interests and for updating
a register, or could require the use of approved forms by councillors.
Clause 5 corrects section 350(3) so that subsection "(1)" is replaced by
subsection "(2)" where reference is made to action taken to implement a
reviewable local government matter.
Clause 6 clarifies section 397(2)(a) so that a delegate of a local
government may enter into a contract provided the cost of the contract is
included in an approved budget or if it is within the limits stated in the
resolution delegating the power to make or vary a contract and is incurred
under section 436.
This means that from 1 July each year until the time when the budget for
that year is adopted by the local government (by 31 August), a local
government's delegate may be able to make, vary or discharge a contract.
Clause 7 corrects wording in section 451(2)(a) to "open to inspection"
rather than "open for inspection".
Clause 8 amends the heading for Chapter 8, Part 2 so that "Local Law"
is inserted before "Policies".
Clauses 9 and 10 clarify the local law policy making process under
sections 483 to 489 so that notice may be given of a proposed local law
policy either at the time a local law is proposed or at some later time before
the process for making the proposed local law is finished. The provision
15
Local Government Amendment
also clarifies the steps to be followed by a local government during the
making of a local law policy before the authorising local law is made.
The current provisions do not allow a local government to propose to
make a local law policy at the same time it proposes to make a local law
(under which the policy is made). The local law would have to be in place
first and this is considered an unnecessary constraint. The amendment will
minimise delays in the making of local law policies.
Clause 11 extends the expiry date to 31 March 1997 for provisions
dealing with local government control over levee banks.
Clauses 12 and 13 clarify that local governments may make and levy a
differential general rate on "rateable" land in the area. The word "rateable"
was previously inadvertently omitted.
Clause 14 clarifies section 579(2) so the term "statement" is
incorporated consistent with its use in section 579(1).
Clauses 15 and 16 require local governments to acquire land for which a
resolution has been passed to remove valueless land from the land record.
However, a local government may not acquire an interest in land held on
a tenure prohibiting a corporation from holding an interest in the land e.g. a
mining claim.
Clause 17 amends section 604(3)(a) so that a local government may levy
a utility charge for the supply of gas at intervals it considers appropriate. In
this respect, the Act requires utility charges to be levied on an annual, half
yearly or quarterly basis, but a utility charge for water may be levied at other
intervals. The amendment will enable the same flexibility to apply to a
utility charge for gas.
Clause 18 extends section 614(2) to allow local governments to adopt
another method for the calculation of interest on overdue rates other than on
a daily compounding basis (e.g. periods on which interest is compounded
may be weekly, monthly or yearly). This is provided the amount of interest
obtained by that method is the same or lower than that obtained using daily
compounding.
Clause 19 clarifies section 629(2) so that circumstances justifying the use
of the rating concession powers under sections 627 or 628 are limited to
those specified in this provision.
16
Local Government Amendment
Clause 20 clarifies section 632(1) so that the amount of the rate levied in
a year can be limited to the amount of the rate levied in the previous year.
Therefore a local government may resolve to apply a zero percent increase,
effectively capping rates to the amount levied in the previous year.
Clause 21 clarifies section 634(2) so that a person is not liable to
imprisonment if default occurs in satisfying an order of a court arising from
a local government's recovery of overdue rates.
Clause 22 amends section 637(1) so that a local government must give
notice to an owner of its intention to sell land for overdue rates but must do
so as soon as practicable after taking the decision to sell the land.
Clause 23 deletes the requirement in section 638(4) for a local
government to resolve to end sale of land procedures where overdue rates
are paid in full. A resolution by the local government is unnecessary
because the payment constitutes the end of the sale of land procedures.
Clause 24 clarifies section 639(1) by substituting the term "auction" for
"public auction". Qualification of this term is unnecessary as the meaning
of "auction" is a public sale.
Clauses 25 to 27 change the word "certificate" to "notice" in sections
645(1) to (3). This term more accurately describes the notice given to the
Registrar of Titles which is on a form and not on a certificate. There is no
obligation for the notice to contain the seal of the local government.
Clause 28 amends section 647 by clarifying the purpose of provisions
dealing with the procedure for acquisition of valueless land by a local
government.
Clause 29 amends section 648(1) so that a local government must, as
soon as practicable after resolving to remove valueless land from its land
record, provide notice to the owner of its intention to acquire the land.
Clause 30 deletes section 649(6) which is now provided for in section
647. (Refer to clause 28 of this Schedule).
Clause 31 deletes wording which is no longer required as a consequence
of the provisions in clause 8 of the Bill dealing with enforcement of Acts
conferring jurisdiction on a local government.
Clause 32 inserts the word "matter" so that the section refers to a local
government matter.
17
Local Government Amendment
Clause 33 clarifies section 696(4) which limits a local government's
ownership of materials, structures or works carried out in the exercise of its
jurisdiction. A local government does not own anything that is the outcome
of work which it performs on a cost recovery basis on behalf of an owner
or occupier under section 661 of the Act.
Clause 34 extends sections 713(4) and (5) so that a local government
employee must tell the chief executive officer (or the chief executive officer
tells the mayor) of particulars of interests (or of correct particulars) in
accordance with the regulations, e.g., the regulations could set different time
periods for initial registration of interests and for updating a register, or
could require the use of approved forms by employees.
Clause 35 extends the expiry date to 25 March 1996 for regulations
made to facilitate transitional arrangements as a result of the repeal of the
Local Government Act 1936. The Local Government (Transitional)
Amendment Regulation (No.2) 1994 has the effect of preserving the
provisions dealing with the establishment and operation of cattle feedlots
until 6 December 1994. It will also enable extension of other provisions in
the Local Government (Transitional) Regulations e.g. impounding of
animals provisions pending the making of local laws by local governments.
© The State of Queensland 1994