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1
Local Government and Other Legislation
Amendment (No. 2)
LOCAL GOVERNMENT AND OTHER
LEGISLATION AMENDMENT BILL
(No. 2) 1999
EXPLANATORY NOTES
GENERAL OUTLINE
Objectives of the Legislation
The policy objectives of the Bill are to:
· provide for four year terms of office for local government
councillors;
· change equal employment opportunity (EEO) reporting
responsibilities in local government annual reports;
· provide for certain minor and technical amendments to a number
of Acts; and
· postpone or avoid commencement of several provisions of the
Integrated Planning Act 1997 (IPA), the Environmental
Protection Act 1994, and the Transport Infrastructure Act 1994,
and to amend the IPA to respond to amendments in other
legislation.
Reasons for and Achievement of the Policy Objectives
The Bill amends the relevant legislation to achieve the policy objectives
outlined above.
Alternatives to the Bill
There are no alternatives considered appropriate for achieving these
policy objectives.
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Local Government and Other Legislation
Amendment (No. 2)
Estimated Cost of Implementation
The costs to Government of implementing the Bill will be administrative
in nature and will not be significant. Costs will be met within existing
budgetary allocations.
Consistency with Fundamental Legislative Principles
The Bill has been drafted with regard to the fundamental legislative
principles.
Consultation
Four year terms
Community consultation was undertaken by Queensland councils and
Members of Parliament (MPs). A Local Government Association of
Queensland (LGAQ) sponsored survey was also conducted on community
attitudes to four year terms for councillors. The survey showed that 57% of
respondents supported four year terms for councillors. A majority of the
councils that considered the issue were supportive of the change.
EEO in Local Government
Extensive consultation was undertaken during a review of the regulation
setting EEO requirements for councils and all parties agreed a change in the
reporting requirements was desirable. The trade unions and the Queensland
Anti-Discrimination Commission support an expansion of the annual report
requirements in the Local Government Act 1993 (LGA).
Integrated Planning Act 1997
The LGAQ, the Department of Aboriginal and Islander Policy and
Development, and the Department of Housing have been consulted.
Coastal Protection and Management Act 1995
The Office of Parliamentary Counsel and the Department of
Communication and Information, Local Government and Planning have
been consulted.
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Local Government and Other Legislation
Amendment (No. 2)
Environmental and Other Legislation Amendment Act 1997
The LGAQ, and the Queensland Chamber of Commerce and Industry
have been consulted.
Those consulted agree with the proposed amendments.
Miscellaneous Amendments
Key stakeholders have been consulted on the balance of the amendments
included in the Bill.
NOTES ON PROVISIONS
PART 1--PRELIMINARY
Clause 1 sets out the short title of the Act.
Clause 2(1) provides that sections 3 and 14 commenced on 16 June 1999
(the date of assent of the Local Government and Other Legislation
Amendment Act 1999).
Clause 2(2) provides that section 43 commences on 1 January 2000.
Clause 2(3) provides that section 4 commences on 25 March 2000.
Clause 2(4) provides that section 44 commences on 30 March 2000.
Clause 2(5) provides that section 12 commences on 1 June 2000.
Clause 2(6) provides that section 46 will commence on a day to be fixed
by proclamation.
Clause 2(7) provides that the remaining provisions will commence on
the date of assent.
PART 2--AMENDMENT OF LOCAL GOVERNMENT
ACT 1993
Clause 3 provides that part 2 amends the Local Government Act 1993.
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Local Government and Other Legislation
Amendment (No. 2)
Clause 4 amends section 222 dealing with disqualification of office for
offences under the Act. The amendment extends the period of
disqualification to four years, to reflect the extension in councillors' terms of
office from three to four years.
A definition for "conviction" has been inserted to clarify that conviction
of an offence includes the instance where a conviction is not recorded but
where the person has been found guilty. This amendment is not intended to
affect the courts' discretion to direct that this section does not apply to a
relevant person.
Clause 5 amends section 266 by providing that local government
councillors are to be elected once every 4 years. This amendment provides
local governments with 4 year terms in place of the current 3 year terms.
Clause 6 amends section 269 by providing that quadrennial elections will
be held in the year 2000 (the first quadrennial elections) and every fourth
year after that.
Clause 7 amends section 419 in relation to the definition of "relevant
period". An election candidate's disclosure period for disclosing election
donations begins at the conclusion of the last election in the relevant period
at which the person was a candidate. The relevant period is extended from 4
to 5 years in order to reflect the change to four year terms of office.
Clause 8 amends section 425 by extending the transitional provision until
1 March 2001. This provides that if a disclosure period would otherwise
start before 1 January 1997, it starts on 1 January 1997. The intent is to
ensure that disclosure periods cannot commence before 1 January 1997
merely because of the extension to disclosure periods arising from the move
to four year terms of office.
Clause 9 amends section 425B by providing for a new expiry date for
subdivision 3. The transitional provisions will now expire on 1 July
2004--after the completion of the 2004 quadrennial elections.
Clause 10 amends section 437 by providing that relevant records for
disclosure of election donations must be kept for 5 years after the
conclusion of the election to which they referred.
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Local Government and Other Legislation
Amendment (No. 2)
Clause 11 amends section 438 by providing that when a candidate lodges
an election donations disclosure return that is not complete and subsequently
obtains further information or particulars relevant to the return within five
years of the relevant election, that information must be passed to the chief
executive officer of the local government.
Clause 12 amends section 505 and extends the minimum period of the
corporate plan from 3 to 4 years. This provides that a corporate plan must
cover at least a four year period. The commencement of this amendment on
1 June 2000 means that from that date all corporate plans will have to cover
a minimum period of four years. This will ensure a corporate plan covers a
local government's four year term of office.
Clause 13 amends section 534 by providing that a council's annual report
must include information about its activities to implement its EEO plan. It
also provides a regulation-making power which will set out the information
required in the statement of activities for equal employment activities.
Clause 14 amends section 1233 correcting the cross-references in the
transitional section to amending sections for special rates and charges under
the Local Government and Other Legislation Amendment Act 1999.
Clause 15 inserts a new section 1235 which provides an expiry date for
Chapter 19, Part 2 of 1 July 2000.
Clause 16 inserts a new Chapter 19, Part 3 providing transitional
arrangements for this Bill.
Section 1236 provides that references to an amended section are
references to the section as amended by the Local Government and Other
Legislation Amendment Act (No. 2) 1999.
Section 1237 provides that for councillors elected at the 1997 triennial
elections, a reference in amended section 227(1) to a quadrennial election
will be taken to be a reference to the 1997 triennial elections. The reference
in section 227(3)(a) as it relates to councillors elected at fresh elections held
in 1995 to the next quadrennial elections is taken to be a reference to the
1997 triennial elections. The reference in the regulations identified in
subsection (3) to the 2000 triennial elections is taken to be a reference to the
2000 quadrennial elections.
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Local Government and Other Legislation
Amendment (No. 2)
Section 1238 provides that for the 2000 quadrennial elections, a reference
in amended section 424 to the conclusion of the immediately preceding
quadrennial elections is taken to be a reference to the 1997 triennial
elections.
Section 1239 provides for the expiry date of Division 1 (which includes
sections 1235, 1236 and 1237) as 1 August 2000.
Section 1240 provides that for any election prior to the 2000 quadrennial
elections, the periods for keeping records and making returns about election
donations for an election described in sections 437(1) and 438(4) will
remain at 4 years.
Section 1241 provides that Chapter 19, part 3 will expire on 1 March
2003.
PART 3--AMENDMENT OF CITY OF BRISBANE ACT
1924
Clause 17 provides that part 3 amends the City of Brisbane Act 1924.
Clause 18 amends section 13 by replacing the term "triennial" with the
term "quadrennial".
Clause 19 amends section 16 by providing that quadrennial elections will
be held in the year 2000 (the first quadrennial elections) and every fourth
year after.
Clause 20 inserts a new section 136 by providing transitional
arrangements for the deputy mayor of Brisbane City Council appointed
following the 1997 triennial elections. In this circumstance, a reference in
the amended section 24 to the appointment of a deputy mayor at the first
meeting after each quadrennial election is taken to be a reference to the
deputy mayor's appointment after the 1997 triennial elections. The section
expires on 1 July 2000.
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Local Government and Other Legislation
Amendment (No. 2)
PART 4--AMENDMENT OF COASTAL PROTECTION
AND MANAGEMENT ACT 1995
Clause 21 provides that part 4 amends the Coastal Protection and
Management Act 1995.
Clause 22 omits section 26(3).
Clause 23 amends section 29 to provide that the final State plan must be
approved by Governor in Council but is not subordinate legislation.
Clause 24 replaces the heading of section 30 with the heading 'Regional
plans must be prepared'.
Clause 25(1) amends section 31 by providing that a regional plan must
'identify' rather than 'show' control districts in the plan area. This
amendment is required to give effect to amendments to section 47 of the
Act that provide control districts are to be declared by 'a regulation giving
effect to the plan', rather than by the plan itself.
Clause 25(2) omits section 31(4).
Clause 26 inserts new provisions to replace the existing sections 35(2)(b)
and (c), without changing the intent, except that the new provisions now
reflect that any relevant control districts or coastal building lines in relation
to the plan will be declared by 'a regulation giving effect to the plan', rather
than by the plan itself.
Clause 27 amends section 36 to provide that a final regional plan must be
approved by Governor in Council but is not subordinate legislation.
Clause 28 inserts new provisions to replace the existing sections 41(3)(b)
and (c), without changing the intent, except that the new provisions now
reflect that any relevant control districts or coastal building lines in relation
to the plan will be declared by 'a regulation giving effect to the plan', rather
than by the plan itself.
Clause 29 amends section 42 to provide that a final coastal plan must be
approved by Governor in Council but is not subordinate legislation.
Clause 30 inserts new sections 43A and 43B.
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Local Government and Other Legislation
Amendment (No. 2)
New section 43A provides that coastal plans prepared under the Act are
statutory instruments under the meaning of the Statutory Instruments Act
1992.
New section 43B provides the relationship of the coastal plans with the
Integrated Planning Act 1997. For the purposes of the Integrated Planning
Act 1997, coastal plans are to be applied under specific provisions of that
Act as if they are State Planning Policies. However, other provisions in the
Integrated Planning Act 1997 that deal with the preparation and consultation
requirements for State Planning Policies are not to apply to coastal plans as
the Coastal Protection and Management Act 1995 already provides
comparable processes and requirements.
Clause 31 inserts new provisions to replace the existing section 44,
without changing the intent, except that the new provisions now reflect the
process for amendment to the State or a regional coastal plan as a statutory
instrument.
Clause 32(1) provides that for an area that is covered by a regional
coastal plan, a regulation that gives effect to the plan may declare a control
district for the area.
Clause 32(2) amends section 47(7) and will now require the chief
executive to give public notice in relevant newspapers when declaring a
control district under the section.
The existing section 47(7) provides that the chief executive must notify in
writing, each owner of land in an area that is declared to be a control district.
However, if the chief executive was to inadvertently miss or fail to notify a
land owner in the district pursuant to this section, that omission or failure
could expose the final regional plan and accompanying district to legal
challenge on the grounds that the notification process under the Act had not
been lawfully complied with.
The amendment to section 47(7) makes the public notification process
for the coastal management plans and the control district the same. This
amendment also is consistent with the notification requirements under the
Integrated Planning Act 1997 for the preparation of State Planning Policies.
Clause 33 amends section 50 to clarify that the regulation referred to in
that section is a regulation made under section 47(1)(b).
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Local Government and Other Legislation
Amendment (No. 2)
Clause 34 amends section 51 to clarify that the regulation referred to in
that section is a regulation made under section 47(1)(b).
Clause 35 omits the words 'regional plan' from section 59(1).
Clause 36(1) provides that the definition of 'regional plan' also applies to
chapter 2, part 2, division 3.
Clause 36(2) provides that the definition of 'State plan' also applies to
chapter 2, part 2, division 3.
PART 5--AMENDMENT OF ENVIRONMENTAL AND
OTHER LEGISLATION AMENDMENT ACT 1997
Clause 37 provides that part 6 amends the Environmental and Other
Legislation Amendment Act 1999.
Clause 38 amends section 2 of the amendment Act, which extends the
commencement date of an amendment to section 118B of the
Environmental Protection Act 1994. The amendment which otherwise will
commence on 5 December 1999 will now commence on 1 June 2001.
PART 6--AMENDMENT OF INTEGRATED
PLANNING ACT 1997
Clause 39 provides that part 6 amends the Integrated Planning Act 1997
(IPA).
Clause 40(1) amends section 1.1.2 to provide an exception to the original
commencement clause of the IPA. The proclamation of 26 March 1998
provided for the commencement of parts of the IPA at various times. The
proclamation specified 1 December 1998 as the commencement date for all
provisions remaining uncommenced at that date. These included the
independent review provisions in chapter 2, part 2, division 2, and the public
housing provisions in chapter 5, part 6. The proclamation was amended
before the proposed residual commencement date, and commencement was
extended for a further 12 months by regulation, until 2 December 1999.
The commencement may only be further extended by primary legislation,
and is extended by this amendment.
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Local Government and Other Legislation
Amendment (No. 2)
Clause 40(2) provides for the independent review provisions, which
enable an independent reviewer to be appointed to review planning schemes,
to commence on 1 January 2001. This will allow further time for the need
for the provisions to be assessed in the light of the operation of IPA
schemes.
Clause 40(2) also provides for the public housing provisions to
commence on 31 March 2000 to coincide with the expiry of the State
exemption from planning schemes under section 6.1.40 of the IPA.
Clause 41(1) amends section 2.6.3(1)(a) for consistency with recent
amendments to the State Development and Public Works Organisation Act
1971 (SD&PWO Act).1 Section 2.6.3 applies only where designators are
designating land for community infrastructure and the proponent is an entity
other than a public sector entity. The designator is required to take account
of major environmental effects in a similar way to that required under the
SD&PWO Act for public sector entities proposing to carry out or approve
development or works. The effect of the amendment to section 2.6.3 is that
if such a proposal is declared a "significant project" and as a consequence
the proponent is required to undertake the EIS process under new division 3
of part 4 of the SD&PWO Act, the provisions will not apply. For other
proposals, the provisions remain unchanged. When section 29(2)
SD&PWO Act (now section 29A(2)) expires on 30 March 2000 these
provisions will be redundant (see Clause 41(3) below).
Clause 41(2) amends a section number for consistency with
renumbering under the amendments to the SD&PWO Act.
Clause 41(3) provides for this section to expire on 30 March 2000 when
section 6.1.402 of the IPA expires. The expiry of section 29(2) of the
SD&PWO Act is also linked to the expiry of section 6.1.40. From that
date, the environmental effects of community infrastructure proposed by
1 The amendments to the SD&PWO Act provide that the Coordinator-General may
declare a project to be a "significant project" and require the proponent to prepare an
environmental impact statement. Previous section 29(2) (the so called "the green
book" process) will expire on 30 March 2000 to coincide with the expiry of section
6.1.40 of the IPA (which exempts State development from regulation by planning
schemes).
2 Section 6.1.40 provides that for the two years following the commencement of the IPA
(on 30 March 1998) development started by or on behalf of the State is not subject to
planning schemes or any infrastructure charge for the development.
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Local Government and Other Legislation
Amendment (No. 2)
either a public or private sector entity which is a "significant project" will be
assessed under division 3 of part 4 of the SD&PWO Act. This is sufficient
to satisfy the designator3 under the IPA. The environmental effects of all
other proposals will need to be considered by the designator pursuant to the
obligations imposed by sections 1.2.2 and 1.2.3 of the IPA. Section 1.2.2
requires that a designator must carry out their function or exercise their
powers under the IPA in a way that advances the purpose of the Act.
Section 1.2.3 states a number of ways this may be done and includes
ensuring that any decision-making, among other things listed in sections
1.2.3(a) to (f), takes account of the short and long-term environmental
effects of development.
Clause 42 amends section 2.6.8 to allow for recent amendments to the
State Development and Public Works Organisation Act 1971 (SD&PWO
Act). Amended section 2.6.8 provides that if the environmental effects of
proposed community infrastructure have been assessed under part 4 of the
SD&PWO 4, the Minister may proceed to designate the infrastructure using
the shortened designation process in schedule 7.
Clause 43 inserts a new section 6.1.10A which reproduces the substance
of a transitional regulation5 made earlier in the year as an interim measure
until the provision could be placed in the IPA. The transitional regulation
provides a similar mechanism to that which existed under the previous
planning legislation 6 which enabled a closed road to be appropriately zoned
by Order in Council. It is proposed that IPA planning schemes will provide
for the zoning of roads and closed roads. However, in the meantime, the
3 See section 2.6.8.
4 Part 4 of the SD&PWO requires either that consideration be given under section
29A(2) (previously section 29(2)) to development or works likely to have major
environmental effects by way of an administrative impact assessment process (the so
called "green book"); alternatively, a statutory impact assessment process must be
undertaken for proposals declared by the Coordinator-General to be "significant
projects" under section 29B of Part 4 of the SD&PWO Act. Section 29A(2) has an
expiry date of 30 March 2000.
5 Integrated Planning (Zoning of Closed Roads) Transitional Regulation 1999.
6 Section 1.21(3) of the Local Government (Planning and Environment) Act 1990
(repealed).
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Local Government and Other Legislation
Amendment (No. 2)
closure of roads in transitional planning schemes needs to be provided for in
the IPA.
Clause 44 amends section 6.1.35C to remove the expiry date for the
section and to provide for the triggers for the operation of the section to be
placed in the Integrated Planning Regulation 1998. These provisions were
included in the IPA as a transitional arrangement to continue the
environmental impact provisions under the Local Government (Planning
and Environment) Act 1990 (repealed). Section 6.1.35C is due to expire on
30 March 2000. At present the provisions rely on triggers in the Regulation
to the repealed Act.
The removal of the expiry date will allow the transitional arrangements to
continue to apply until the IDAS consequential amendment program is
completed.
By placing the triggers in a regulation to the IPA adjustments may be
made to the transitional arrangements in response to the integration of new
approval processes into IDAS, without the need to amend the principal
legislation each time. For example, there is overlap between the transitional
referral coordination arrangements for certain "designated" developments
listed in the regulation to the repealed Act that are also environmentally
relevant activities (ERAs) under the Environmental Protection Act. As
ERAs, the formal concurrence referral arrangements under the IPA
currently apply, in addition to the transitional referral coordination
arrangements. This results in extra unnecessary administration and
confusion about the process.
Also, the regulations under the repealed legislation are becoming
increasingly difficult to access, and in view of the continuing nature of this
arrangement, it is preferable for the provisions to link to regulations under
the IPA.
Clause 45 amends schedule 8, parts 1 and 2, by omitting the
uncommenced provisions. As a consequence existing item 3(u) becomes
the only provision in item 3. The uncommenced provisions were listed in
schedule 8 at the commencement of the IPA to give an indication of the
scope of development proposed to be made assessable under the Act. The
provisions have already been postponed once by regulation, and will
commence on 2 December 1999 unless some action is taken. The
provisions in their present form cause confusion (for example, they are
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Local Government and Other Legislation
Amendment (No. 2)
thought to have commenced) and it is preferable they be removed.
Replacement provisions in the appropriate form will be added to schedule 8
progressively as corresponding consequential amendments are made to the
legislation to which they relate.
Clause 46 amends schedule 10 by changing the definition of "local
government area" to include Aboriginal and Torres Strait Islander (ATSI)
Councils. Proposed amendments to the Community Services Acts (CSA)
will establish ATSI Council areas in a similar way to local government
areas under the Local Government Act. This amendment is consistent with
the amendments to the CSA and clarifies that ATSI Councils have the same
status under the IPA for their respective areas, as local governments have
for areas declared under the Local Government Act. The amendment will
be proclaimed to commence at the same time as the amendments to the
CSA.
PART 7--AMENDMENT OF INTEGRATED
PLANNING AND OTHER LEGISLATION
AMENDMENT ACT 1999
Clause 47 provides that part 7 amends the Integrated Planning and
Other Legislation Amendment Act 1999.
Clause 48 amends section 12 which inserts a new section 6.1.54 in the
IPA. The new section provides a special set of transitional arrangements for
referral of development to the Department of Main Roads under transitional
planning schemes. These arrangements allow the chief executive, Main
Roads, to impose the same kind of condition through the chief executive's
concurrence response as could have been imposed by a local government
under the repealed provisions of section 40 of the Transport Infrastructure
Act. The arrangements are necessary because the Department of Main
Roads' (DMR) interests are not reflected in transitional planning schemes.
Section 12 is amended to extend the application of these special referral
arrangements to planning schemes made under the IPA (IPA planning
schemes), where the Minister gives the local government a notice to the
effect that the special referral arrangements in section 6.1.54 apply. The
effect of the notice will be to advise the local government that the Minister is
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Local Government and Other Legislation
Amendment (No. 2)
not satisfied that the DMR's interests are adequately reflected in the planning
scheme. The notice can be withdrawn when this is remedied.
The amendment affects a small number of planning schemes which were
being prepared at the commencement of the IPA, and the local governments
elected to continue preparing the schemes not as transitional schemes under
the repealed Act, but as IPA schemes under the IPA. Processes for
identification and inclusion of State interests were not sufficiently well
developed to enable DMR's interests to be adequately reflected in the
schemes. The amendment will allow these early schemes to be adopted as
IPA schemes, but the transitional referral arrangements for the DMR will
apply for the time being.
PART 8--AMENDMENT OF TRANSPORT
INFRASTRUCTURE ACT 1994
Clause 49 provides that part 8 amends the Transport Infrastructure Act
1994.
Clause 50 extends the expiry date of section 236 for a further 12 months.
The matters dealt with in the section will be addressed in proposed
consequential amendments to the coastal legislation generally to integrate
coastal approval mechanisms into IDAS. The extended provisions will be
repealed by that legislation to coincide with the commencement of the
consequential amendments.
PART 9--MINOR AND CONSEQUENTIAL
AMENDMENTS
Clause 51 provides that the Schedule amends those Acts mentioned in it.
SCHEDULE
MINOR AND CONSEQUENTIAL AMENDMENTS
This Schedule includes minor and consequential amendments.
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Local Government and Other Legislation
Amendment (No. 2)
CITY OF BRISBANE ACT 1924
Clause 1 provides for a change in heading in Part 2, Division 5 to reflect
a change in terminology.
Clause 2 provides for a change in terminology.
COMMUNITY SERVICES (ABORIGINES) ACT 1984
Clause 1 provides for a change in terminology.
COMMUNITY SERVICES (TORRES STRAIT) ACT 1984
Clause 1 provides for a change in terminology.
GLADSTONE AREA WATER BOARD ACT 1984
Clause 1 provides for a change in the maximum possible term of office
of councillors appointed to the Board, to reflect the change to four year
terms of office for councillors.
LOCAL GOVERNMENT ACT 1993
Clause 1 provides for a change in terminology for a number of sections.
Clause 2 provides for a change in heading in Chapter 2, part 2, division
4.
Clause 3 provides for a change in heading of section 44.
Clause 4 provides for the correction of a minor grammatical error.
Clause 5 provides for the correction of a minor grammatical error.
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Local Government and Other Legislation
Amendment (No. 2)
LOCAL GOVERNMENT AND OTHER LEGISLATION
AMENDMENT ACT 1999
Clause 1 provides that a proposed interim local law, proposed local law
or subordinate local law must be drafted in "sufficient" accordance with the
drafting standards prescribed by regulation - allowing some flexibility in the
drafting of local laws.
TOWNSVILLE/THURINGOWA WATER SUPPLY
BOARD ACT 1997
Clause 1 provides for a change in the maximum possible term of office
of councillors appointed to the Board, to reflect the change to four year
terms of office for councillors.