Queensland Bills Explanatory Notes Queensland Bills Explanatory Notes[Index] [Search] [Download] [Bill] [Help]
Local Government and Industrial Relations Amendment Bill 2008
Local Government and Industrial
Relations Amendment Bill 2008
Explanatory Notes for Amendments to be
moved during consideration in detail by the
Honourable the Minister for Transport, Trade,
Employment and Industrial Relations, Mr John
Mickel, MP.
Title of the Bill
Local Government and Industrial Relations Amendment Bill 2008
Objectives of the amendments
The amendments broadly bring into line arrangements relating to
successful candidates in local government elections with existing
provisions relating to full time public sector employees who are successful
state election candidates and federal election candidates.
These amendments will provide that full-time public sector employees who
are successfully elected to certain classes of local government will be
deemed to resign from their public sector positions upon election. They
also allow for full-time employees to make alternative part-time
arrangements subject to the approval of the chief executive of their
respective agency, and in this case, ensure that their entitlements are
preserved as though their employment had not been terminated.
The amendments also prevent councillors and mayors in specified local
governments from being appointed to a full-time public sector position
after their election to a local government. Exceptions have been made to
enable councillors and mayors to sit on boards, tribunals and similar bodies
set up by the state. However councillors will be required to waive any
rewards associated with these activities.
Minor amendments to the Local Government Act 1993 address technical
matters identified after the Bill was introduced.
Page 1
Local Government and Industrial Relations Amendment Bill 2008
Achievement of the objectives
To achieve the objectives, amendments are proposed to the Local
Government and Industrial Relations Amendment Bill 2008.
Alternative ways of achieving policy objectives
The policy objectives can be achieved only by legislative enactment.
Estimated cost for government implementation
There will be no cost for government resulting from the amendments.
Consistency with fundamental legislative principles
The amendments are consistent with fundamental legislative principles.
Consultation
The Department of Premier and Cabinet and the Office of the Queensland
Parliamentary Counsel were consulted throughout preparation of
amendments about people in State employment. Queensland Treasury, the
Department of Industrial Relations and Employment and QSuper were
consulted about specific amendments. The Department of Communities
was consulted about amendment of the Community Services Act 2007.
Notes On Provisions
Local Government Act 1993
Amendment 1 amends clause 10 (Replacement of s.35) to clarify that a
local government is constituted by the councillors in office for the time
being. A vacancy or vacancies in the office of councillor do not affect the
legal entity of the local government.
Amendment 2 amends clause 12 (Replacement of s.38 (Local
government's seal)) to clarify that new section 38 does not limit the
operation of the delegation power in section 472 of the Act. New section
38(1) provides that a local government may execute a document in any of
Page 2
Local Government and Industrial Relations Amendment Bill 2008
the ways specified and subsection 38(2) provides that this does not limit
section 483. Amendment 1 clarifies that new section 38(1) also does not
limit section 472. Section 472 provides that a local government may, by
resolution, delegate its powers. A local government may, for example,
resolve to delegate to its chief executive officer its power to execute certain
types of document. Section 1132 of the Act enables the chief executive
officer to further delegate powers unless the local government has directed
the chief executive officer not to further delegate the power. The
amendment, together with existing provisions of the Act, will enable local
governments to decide who is able to execute documents on behalf of the
local government.
Amendment 3 amends clause 15 (Replacement of s. 53 (Joint local
government's seal) to clarify that new section 53 does not limit the
operation of the delegation power in section 472 of the Act. A joint local
government may execute documents in any of the ways specified in new
section 53, or in accordance with a delegation under section 472.
Amendment 4 inserts a new clause 17A (Insertion of new ch 4, pt 1, div
2A) into the Bill.
New clause 17A inserts new division 2A (Councillors holding paid State
appointment) into Chapter 4 of the Local Government Act 1993 (LGA).
The amendments provide for the automatic resignation of persons holding
a full-time paid State appointment who are elected to be councillors or
mayors of certain classes of local government. New division 2A is
intended to broadly mirror the operation of the Parliament of Queensland
Act 2001 as it pertains to Members of the Legislative Assembly holding a
paid public appointment. The LGA provisions depart slightly from the
Parliament of Queensland Act 2001 in that they:
· only apply to councillors and mayors of larger local
governments, and;
· only affect persons holding a full-time public sector
appointment.
New section 226A (Meaning of paid State appointment for div 2A)
provides a definition for paid State appointment. The definition
largely mirrors similar provisions within the Parliament of
Queensland Act 2001.
New subsection 226A (1) specifies that a person holds paid State
appointment if the person for reward:
Page 3
Local Government and Industrial Relations Amendment Bill 2008
holds an office under, or is employed by the State; or
holds an appointment to or in or is employed by or in
· an entity of the State; or
· the parliamentary service of the Legislative Assembly;
or
· a court or tribunal, or a registry or other administrative
office of a court or tribunal, of the State.
The provisions are intended to cover all paid public appointments
including employees of the public service, the parliamentary
service and statutory office holders. The provisions are not
intended to cover essentially private entities which may operate
under or pursuant to a law of the State or which receive funding
from the State--unless appointments to those entities are
controlled in some way by the State.
New subsection 226A (2) makes it clear that a councillor (use of
the term councillor throughout the explanatory notes is intended
to also encompass mayors unless explicitly stated otherwise)
does not hold a paid State appointment if:
· an Act expressly requires or permits that an appointment be
held by a councillor of a local government; or
· an appointment is held by a councillor of a local
government and the councillor does not receive any reward
for, or waives any reward associated with, the appointment.
These provisions provide that councillors may hold appointments
where an Act explicitly requires such an appointment, or where
the councillor waives their right to remuneration under an
appointment. New subsections 226A (3) and (4) provide for the
mechanism of waiving a reward.
Subsection 226A (2) (b) is not intended to allow councillors to
hold full-time public sector employment if they waive their right
to remuneration. The provision is intended to allow local
government representatives to continue to sit on boards, tribunals
and other similar state entities that require or benefit from
engagement with local government representatives, as long as the
councillor waives any reward associated with the role.
Page 4
Local Government and Industrial Relations Amendment Bill 2008
New subsection 226A (5) defines the term reward by providing
that a reward does not include:
· an amount decided under part 3 (Entitlements and
obligations);
· an amount paid to former members of the Legislative
Assembly from the old Parliamentary Superannuation
Scheme;
· reasonable expenses incurred by or for the councillor and
reimbursed from the state for a number of listed matters;
· an amount paid as a pension, entitlement, remuneration or
allowance for past service in a paid public appointment;
The exclusion from the term reward of an amount decided under
Part 3 (Entitlements and obligations) is important because Part 3
determines the remuneration of councillors. Therefore, the
receipt by a councillor of his or her remuneration or a
superannuation entitlement does not qualify as a paid State
appointment.
New section 226B (Meaning of paid State appointment for div 2A)
establishes two classes of local governments for the purposes of the
subsequent sections 226C and 226D.
Class A local governments are those local governments either
prescribed by a regulation, or if no regulation has been made, then
category 3 or 4 local governments as decided by the Local
Government Remuneration Tribunal under section 250AJ of the LGA.
Class B local governments are those local governments either
prescribed by regulation, or if no regulation has been made, then:
· Brisbane City Council, and;
· category 5 and higher category councils as decided by the Local
Government Remuneration Tribunal under section 250AJ of the
LGA.
New section 226C (Effect on paid State appointment of person's
election as councillor) in subsection (1) gives effect to the automatic
resignation of persons who hold a full-time paid State appointment
and are elected, elected unopposed or appointed to be the mayor of a
Class A local government.
Page 5
Local Government and Industrial Relations Amendment Bill 2008
The new subsection 226C (2) gives effect to the automatic
resignation of persons who hold a full-time paid State
appointment and are elected, elected unopposed or appointed to
be a councillor (but not a mayor) of a Class B local government.
The date of effect of the automatic resignation is the day before
the day of the poll at which the person is elected, or in the case of
appointed councillors, the day before the day of appointment.
These provisions ensure that there is a discrete separation
between the mutually exclusive positions.
New subsection 226C (3) makes it clear that the requirements of
the new division do not preclude a person from subsequently
obtaining a part-time paid State appointment.
New subsection 226C (4) provides for the retention of all a
person's existing entitlements (e.g. long service leave, annual
leave etc.) if they are appointed to either their previous paid State
appointment in a part-time capacity under new subsection 226C
(3) (b).
New section 226D provides that a mayor of a Class A local
government, or a councillor or mayor of a Class B local government
can not be appointed to a full-time paid State appointment, and that
any such appointment made is void.
Amendment 5 provides that a new local government is constituted by the
chief executive officer from 15 March 2008 until the end of the day that is
the conclusion of the last election for any councillor of that new local
government. This facilitates an orderly commencement of operation of the
new local governments which is not determined by the time that each
councillor's election is declared.
Community Services Act 2007
Amendment 6 inserts new Division 1A in Part 4 of the Bill to make a
consequential amendment to the Community Services Act 2007. The
amendment ensures that the definition of service provider includes a local
government, so that local governments will be eligible to receive grants
under a range of community services programs.
© State of Queensland 2008
Page 6