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1
Local Government Legislation Amendment Bill 2002
LOCAL GOVERNMENT LEGISLATION
AMENDMENT BILL 2002
EXPLANATORY NOTES
GENERAL OUTLINE
Objective of the Legislation
The Bill provides for amendment of--
a) the City of Brisbane Act 1924 (COBA) and Local Government
Act 1993 (LGA) to:
· provide local government with more appropriate flexibility
in revenue raising;
· improve the accountability of local governments in revenue
raising;
clarify the intended purpose of some current provisions relating
to revenue raising; and
b) the Local Government (Queen Street Mall) Act 1981 and the
Local Government (Chinatown and The Valley Malls) Act 1984
(`the Malls Acts') to:
· ensure that Brisbane City Council (BCC) can effectively
deal with unauthorised vehicles in Brisbane City malls; and
· enable BCC to utilise the State Penalties Enforcement
Regime (SPER) for enforcement of prescribed offences
under the Malls Acts and local laws supplementing the Acts.
Reasons for the Bill
Since the LGA was introduced the Department of Local Government
and Planning has conducted evaluations of components of the LGA to
ensure it remains an up-to-date legislative framework that provides for an
efficient, effective and accountable local government system.
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Local Government Legislation Amendment Bill 2002
A Discussion Paper on local government revenue raising powers was
released in May 1999 to stimulate discussion about a range of general and
technical issues relating to the revenue powers available to local
governments, including the flexibility afforded to local governments to
respond to community needs, and adequate transparency in local
government decision-making processes.
The Discussion Paper also included a number of proposals for
legislative change arising from the Ombudsman's 1998 report on an own
motion investigation under section 15 of the Parliamentary Commissioner
Act 1974 entitled Rate Recovery Practices of Local Governments in
Queensland.
A draft Bill was released for public consultation, together with an
explanatory consultation paper, in August 2002.
An assessment of the submissions on the Discussion Paper assisted in
forming the development of the proposed amendments.
BCC operates its pedestrian malls under the Malls Acts, while other
councils make local laws to govern pedestrian malls. BCC submitted a
number of proposals for amendments to the Malls Acts to enable it to
effectively manage the malls.
Achievement of the Policy Objectives
The objectives of the Bill are to be achieved by amending the COBA,
Integrated Planning Act 1997 (IPA)1, the LGA and the Malls Acts to:
· improve the accountability of local governments by developing
new requirements for a revenue policy and a revenue statement to
better inform the public about the principles underlying revenue-
raising measures and to explain revenue measures used;
· provide greater flexibility in the use of local government revenue
powers by providing separate heads of power for local
governments to set commercial charges and regulatory fees;
· improve the workability of the COBA and LGA in relation to the
making, levying and recovery of rates and the granting of rating
concessions;
1 A minor amendment has been made to the Integrated Planning Act 1997 section 5.1.5
as a consequence of the omission of sections 974 and 975 LGA, in clause 43.
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Local Government Legislation Amendment Bill 2002
· clarify that BCC has the power to move or remove vehicles in
certain circumstances; and
· repeal provisions providing for a penalty infringement notice
regime for prescribed offences under the Malls Acts and local
laws supplementing the Malls Acts to enable BCC to utilise the
SPER instead.
Alternatives to the Bill
There are no alternatives considered appropriate for achieving these
policy objectives.
Estimated Cost of Implementation
The Department will update the Department's Revenue Raising Manual,
used to provide guidance to local governments, to reflect the proposed
amendments. The Department will also conduct local government
information sessions throughout the State. These projects will be funded
within existing budgets.
Consistency with Fundamental Legislative Principles
The amendments to clarify BCC's powers to remove illegally parked
vehicles from the Queen Street, Chinatown and Valley Malls, have been
developed having regard to fundamental legislative principles.
Fundamental legislative principles may be breached if legislation does
not have sufficient regard to the rights and liberties of individuals. Whether
legislation meets this requirement depends, inter alia, on whether it makes
rights and liberties, or obligations, dependent on administrative power only
if the power is sufficiently defined and subject to review.
The amendments have been drafted having regard to existing powers
under section 100 of the Transport Operations (Road Use Management)
Act 1995 (TORUM), which give councils powers to remove vehicles from
roads in certain circumstances. Under TORUM, where a vehicle has been
removed an owner may apply to the chief executive officer of a council for
its return. However no appeal right is provided if the chief executive officer
rejects such an application.
Under the amendments, there is provision for a person who is
dissatisfied with the decision of the town clerk to refuse to deliver
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Local Government Legislation Amendment Bill 2002
possession of a vehicle to the person, to appeal the decision to a
Magistrates Court. It is considered the power to refuse an application is
sufficiently well defined. The town clerk must refuse to release a vehicle
unless satisfied the applicant has a legal right to possession of it and has
paid any expenses relating to its removal. Also, if the town clerk refuses an
application, a written notice must be given to the applicant stating the
reasons for the decision and advising the applicant they can appeal the
decision to a Magistrates Court within 28 days.
Consultation
As outlined above, a discussion paper was released in May 1999 and in
August 2002 draft legislative proposals and an associated consultation
paper were released and public comment was invited. The materials were
published on the Departmental Web site on 21 August 2002 and key
stakeholders were advised by e-mail that the materials were publicly
available.
Over 300 hard copy consultation kits, comprising the consultation paper
and draft Bill, were mailed to chief executive officers of councils, Members
of Parliament, peak representative bodies, other associated government
departments and agencies, offices of political parties, and other interested
people and organisations. Nearly 500 kits were distributed in total, with
over 1200 copies of the consultation paper and over 1700 copies of the
draft Bill downloaded from the Department's Web site.
Advertisements placed in The Courier Mail newspaper advised how to
obtain the consultation materials and invited members of the public to
submit their views.
A period of about seven weeks, from mid-August until 4 October 2002,
was allowed for the Department to receive submissions.
There has been ongoing consultation with BCC in relation to the
amendments to the Malls Acts.
Interdepartmental
A consultation kit was provided to each Queensland Government
Department for comments.
Consultation on the amendments to the Malls Acts occurred with
relevant State agencies, in particular, the Department of Transport and the
Department of Justice and Attorney-General. Ongoing consultation with
BCC occurred during development of these amendments.
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Local Government Legislation Amendment Bill 2002
NOTES ON PROVISIONS
PART 1 --PRELIMINARY
Short title
Clause 1 provides for the short title of the Act, Local Government
Legislation Amendment Act 2002.
Commencement
Clause 2 provides for the commencement of parts 5 to 7 by
proclamation.
PART 2 --AMENDMENT OF CITY OF BRISBANE ACT
1924
Act amended in pt 2 and sch
Clause 3 provides the short title of the Act to be amended in Part 2 and
minor consequential amendments in the schedule. Part 2 and the schedule
amend the City of Brisbane Act 1924 (COBA).
Replacement of ss 48 - 59
Clause 4 replaces the general rates and charges provisions under the
COBA (sections 48 to 58) with a new set of provisions incorporating
amendments similar to those made in the Local Government Act 1993 LGA
(sections 963 to 967 and 971 to 973AA). Also, section 59 of the COBA is
replaced by new section 1071A in the LGA, inserted by clause 66 of the
Bill.
BCC has general powers as a legal entity to set commercial charges.
However section 59 is a specific head of power to set charges for both
regulatory activities (i.e. the issuing of permits and approvals required
under legislation to be obtained from council) and commercial activities
(i.e. where the council is selling goods and services on a user pays basis).
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Local Government Legislation Amendment Bill 2002
The uncertainty about the relationship between the general and specific
provisions of the COBA raised questions as to which section had been
relied upon to make commercial charges.
Section 1071A of the LGA is a specific head of power for the fixing of
regulatory fees and the council can rely on its general powers as a legal
entity to set commercial charges under section 6A of the COBA.
Sections 48 to 58:
Section 48 (Making of rates and charges), subsection (1) provides for
the council to make a general rate or differential general rates for each
financial year. Subsection (2) sets out the different types of rates and
charges the council may make and levy, including the power to make
and levy separate and special rates and charges. This section is
consistent with the LGA section 963.
Section 49 (How rates and charges made), provides that a rate or
charge mentioned in section 48 may only be made for a financial year
by resolution at the council's budget meeting for the year.
Section 50 (Differential general rate) enables the council to make a
differential general rate.
Section 51 (Minimum general rate levy) clarifies that there can only
be one minimum general rate levy but where there are differential
rating categories, there can be one minimum general rate levy per
category.
Section 52 (Special rates and charges), replaces the existing head of
power for the council to levy this type of rate or charge with a new
head of power that is consistent with the LGA section 971 (Special
rates and charges). It is also consistent with the LGA section 971 as
amended, by providing that the council may fix a minimum amount of
a special rate. Also, section 52(12) provides that the council can make
a special rate or charge for a service, facility or activity provided by
another local government in the other local government area if an
arrangement is entered into between the council and the other local
government under the LGA section 59 (Cooperation between local
governments). This is consistent with similar amendments to the LGA
section 971.
Section 53 (Adjustment of special rates and charges), is a new section
to achieve consistency with the LGA section 971A (Adjustment of
special rates and charges) as amended. Subsection (4) provides that
when the council has remaining funds received from a levy for a
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Local Government Legislation Amendment Bill 2002
special rate or charge, the council must, as soon as practicable after
the plan is implemented or the decision is made not to fully implement
the overall plan, refund in the same proportions as the special rate or
charge was last levied, to the current owners of the land on which the
special rate or charge was levied.
Section 54 (Refund of special rates and charges--special
circumstances), provides that in particular circumstances the council
must repay, as soon as practicable, in reasonable proportions funds
received from a special rate or charge. Refunds are determined by the
extent to which the land, or its occupiers, benefits from the service,
facility or activity. The circumstances where this requirement applies
are where:
(a) the council decides not to fully implement an overall plan
that has been partly implemented; and
(b) the council has funds received from a special rate or charge
remaining; and
(c) the plan identifies, for different stages of its implementation,
the rateable land, or occupiers of the land, that will benefit
from, or have access to, the service, facility or activity.
This section is consistent with the LGA section 971B as inserted.
Section 55 (Separate rates and charges), replaces the existing head of
power for the council to levy this type of rate or charge with a new
head of power that is consistent with the LGA section 972 (Separate
rates and charges). It is also consistent with the LGA section 972 as
amended, and provides the council may fix a minimum amount of a
separate rate.
Section 56 (Utility charges) carries forward the council's power to
make utility charges, but subsection (3) provides that the council may,
under section 57, make and levy a utility charge before construction of
the facilities for supplying the service is completed. This is consistent
with the LGA section 973 (Utility charges) as amended.
Section 57 (Utility charges for facilities under construction), is a new
section consistent with the LGA section 973AA (Utility charges for
facilities under construction) as inserted. The intent is to provide
certainty about when construction is deemed to have commenced
where the council has decided to levy utility charges during the
construction of infrastructure for the supply of water and sewerage
services and before supply has actually commenced. In this case
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Local Government Legislation Amendment Bill 2002
utility charges may be levied during the construction period up to two
financial years before the supply of water and sewerage services
commences.
Section 58 (Validity of particular utility charges), carries forward the
current law about the validity of a utility charge made and levied by
the council when there is non-compliance with the LGA chapter 10
(Reform of certain water and sewerage services).
Amendment of s 60 (Levying rates)
Clause 5 amends section 60 to clarify that the council may levy a rate
only by a rate notice and a rate notice is valid when issued to the person
recorded in the council's records as the owner, at the date of issue. It also
requires that the council must state on, or include with, the rate notice,
information about rate discounts, as a consequence of amendments to
section 68 (Discount for prompt payment). The amendments to section 60
are consistent with the amendments to the LGA section 1008 (Levying
rates).
Amendment of s 66 (Payment by instalments)
Clause 6 amends section 66 by inserting subsection (5) to clarify that in
the event of a default on an instalment arrangement established for an
overdue rate, for the purposes of the sale of land provisions under the LGA
chapter 14, part 7, division 3, the overdue rate is taken to have been unpaid
from the first day it became an overdue rate, prior to the instalment
resolution.
Amendment of s 68 (Discount for prompt payment)
Clause 7(1) amends section 68 by inserting in subsection (2) new
paragraph (ca), to provide that when the council elects to allow a discount,
the council must then decide if the discount is to be allowed only after
another rate is paid before the discount date, or within the discount period,
for the rate or other rate. The policy intent is for the council to have the
power to decide if discounts should be available where all rates are paid, or
only those rates specified by the council. In addition, the council could
decide that a discount on rates is not available if the ratepayer owes an
outstanding amount for work performed by the local government under the
LGA section 1066 (Performing work for owner or occupier). Clause 7(2)
renumbers section 68(2)(ca) as section 68(2)(d) and section 68(2)(d) as
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Local Government Legislation Amendment Bill 2002
section 68(2)(e) to maintain alphabetical order. The amendments to section
68 are consistent with the amendments to the LGA section 1019 (Discount
for prompt payment).
Amendment of s 75 (Remission, composition and settlement of rates)
Clause 8 amends section 75 by inserting subsection (5) to clarify that in
the event a rate that is the subject of an agreement with the council for
remission, composition or settlement of overdue rates is not paid, for the
purposes of the sale of land provisions under the LGA chapter 14, part 7,
division 3, the overdue rate is taken to have been unpaid from the first day
it became an overdue rate, prior to the agreement. The amendment is
consistent with the LGA section 1031 (Remission, composition and
settlement of rates) as amended.
Amendment of s 76 (Deferment of payment of liability)
Clause 9 amends section 76 by inserting subsection (6) to clarify that in
the event a rate that is the subject of a deferral arrangement for overdue
rates is not paid, for the purposes of the sale of land provisions under the
LGA chapter 14, part 7, division 3, the overdue rate is taken to have been
unpaid from the first day it became an overdue rate, prior to the
arrangement. The amendment is consistent with the LGA section 1032
(Deferral of liability to pay rates) as amended.
Amendment of s 79 (Exercise of concession powers requires owner's
application)
Clause 10 is a procedural amendment to the heading of section 79 that
now reads, "Council may grant particular concessions on owner's
application", as a consequence of clause 11.
Insertion of new s 79A (Council may grant concessions to classes of
land owners)
Clause 11 inserts section 79A to provide the council with the discretion
to grant a rating concession to a class of landowners or entities without an
individual application from each member of that class. Subsection (3)
clarifies that if the council remits a rate and a landowner of a class
identified in the resolution has already paid the rate, the council must
refund the overpaid rate. The purpose for which class concessions are to be
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Local Government Legislation Amendment Bill 2002
provided must be set out in the council's revenue policy under new section
106B (Requirements and content of revenue policy). Section 79A is
consistent with the LGA section 1035A (Local government may grant
concessions to classes of land owners) as inserted.
Amendment of s 80 (Limitation of increase in rate levied)
Clause 12 amends section 80 by substituting subsection (1) to provide
the council with a discretionary power to cap rates on properties where
rates have been levied for part of the previous financial year. It also sets out
the method for working out that amount. The amendment is consistent with
the LGA section 1036 (Limitation of increase in rate levied) as amended.
Amendment of s 81 (Establishing criteria and categories)
Clause 13 amends section 81 to provide an example of how the council
may decide categories for a differential general rates and how the council
may determine the criteria for those categories. This amendment is
consistent with the LGA section 977 (Establishing criteria and categories).
Amendment of s 85 (Notice to owner of categorisation)
Clause 14 amends section 85 by inserting new subsection (2) to provide
that when the council resolves to make and levy a differential general rate,
the council need only provide a statement informing the owner of
categorisation of land and appeal rights when the first rate notice for a
financial year is issued, or when there has also been a change in the
categorisation or ownership of the land. Subsection (3) provides an option
for the council to decide that a statement containing the information
mentioned in subsection (1)(a) to (c) may be contained in, or accompany,
any other rate notice. This amendment is consistent with the LGA section
983 (Notice to owner of categorisation) as amended.
Insertion of new pt 4, div 1A
Clause 15 inserts into part 4 (Finance), new division 1A (Revenue
policy). Sections 106A to 106C provide for a revenue policy to be
developed by the council to guide the development of revenue options in
the budget process. In order to improve the accountability and transparency
of revenue policy decisions, new division 1A and sections 109A and 109B
provide for a two-step process for the development of revenue policies. The
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Local Government Legislation Amendment Bill 2002
process involves the creation of the following publicly available
documents--
1. a revenue policy, which would be adopted in advance of the
budget, to clearly set out the principles used by the council in
setting its budget and the broad strategy it plans to use to raise
revenue. Principles for setting rates and charges, such as the
extent to which a user pays approach is adopted, will be the focus
of the revenue policy;
2. a revenue statement, which would be an explanatory statement to
accompany the budget, outlining and explaining the revenue
measures adopted in the budget.
The policy intent is for a revenue policy to be strategic in nature,
consequently, the council will need to prepare the revenue policy in
advance of the budget.
The revenue statement will accompany the budget but will not form part
of the budget.
Division 1A--Revenue policy
Sections 106A to 106C
Section 106A (Preparation and adoption of revenue policy) provides
for the council to adopt by resolution a revenue policy for each
financial year in time to allow preparation and adoption of a budget
for the financial year consistent with the policy.
Section 106B (Requirements and content of revenue policy) provides
that the revenue policy, or an amendment, must comply with the
financial management standards prescribed under section 127 of the
COBA. If the council intends to offer concessions to a class of
ratepayers under section 79A (Council may grant concessions to
classes of land owners), the policy must state the purpose of the class
concession. Subsection (3) provides that council may, by resolution,
amend its revenue policy for a financial year at any time before the
financial year ends.
Section 106C (Copies of revenue policy to be available for inspection
and purchase) provides that the council must have its revenue policy
available for inspection and purchase.
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Local Government Legislation Amendment Bill 2002
Amendment of s 108 (Content of budget documents)
Clause 16(1) amends section 108 to provide for the development of the
council's revenue statement and for the statement to accompany the budget.
Clause 16(2) omits the reference to general charges in section 108(2)(c).
Insertion of new ss 109A and 109B
Clause 17 inserts into part 4 (Finance), division 2 (Budget) new sections
109A and 109B. The council is to prepare the revenue statement to
accompany the budget. The statement will outline the revenue measures
adopted in the budget process.
New sections 109A, 109B
Section 109A (Adoption of revenue statement) provides for the
council to adopt by resolution, a revenue statement for each financial
year.
Section 109B (Requirements and content of revenue statement)
provides that the revenue statement, or an amendment of the revenue
statement, must comply with the financial management standards in
the COBR. Section 109B (2) provides that a revenue statement must,
if appropriate, include categories and criteria of differential general
rates, a summary of arrangements made with another local
government if special rates or charges are to be levied to finance
services used by the affected ratepayers in another local government
area, and the criteria used to decide the amount of regulatory fees.
Amendment of s 119 (Annual report)
Clause 18 amends section 119 to include in the annual report the
requirement for the council to report on details of action taken in relation
to, and expenditure, on a service facility or activity for which the council
made and levied a special rate or charge during the year and which was
supplied by another local government under arrangements entered into
under the LGA s 59 (Cooperation between local governments).
Insertion of new s 136 and new pt 6
Clause 19 inserts:
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Local Government Legislation Amendment Bill 2002
Section 136 (Application of certain provisions) provides that a
number of the amendments in the COBA first apply to BCC's budget
in the new financial year beginning 1 July 2003 and each later
financial year.
Part 6--Transitional provision
Section 137 (Transitional provision for Local Government Legislation
Amendment Act 2002--general charges) preserves general charges made
under the previous section 59 (General charges).
PART 3--AMENDMENT OF INTEGRATED PLANNING
ACT 1997
Clause 20 provides the short title of the Act to be amended in Part 3. Part
3 amends the Integrated Planning Act 1997 (IPA).
Clause 21 amends section 5.1.1 (Fixing infrastructure charges). It is a
consequential amendment following the omission of sections 974 and 975
in clause 43. Infrastructure charges are currently a general charge under the
LGA section 974 (General charges). With the repeal of this section a
separate head of power is needed for the fixing of infrastructure charges.
PART 4--AMENDMENT OF LOCAL GOVERNMENT
ACT 1993
Act amended in pt 4 and sch
Clause 22 provides the short title of the Act to be amended in part 4 and
minor consequential amendments in the schedule. Part 4 and the schedule
amend the Local Government Act 1993 (LGA).
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Local Government Legislation Amendment Bill 2002
Amendment of s 10 (How local government Acts apply to Brisbane
City Council)
Clause 23 amends section 10(a) by inserting subparagraph (xiv) to
provide that in applying provisions of the LGA to BCC, references in the
LGA to a local government's land record include a reference to a record of
rateable land kept by the Brisbane City Council.
Amendment of s 36 (General powers)
Clause 24 amends section 36 (2)(c) to clarify that local governments
may rely on their general powers as a legal entity to make commercial
charges for services and facilities they provide other than for a service or
facility for which a regulatory fee may be fixed. The regulatory fees powers
are in chapter 15, part 4, new division 2A sections 1071A to 1071E, as
inserted by clause 66.
Amendment of s 50 (General powers)
Clause 25 amends section 50(2)(c) to clarify that a joint local
government may rely on its general powers as a legal entity to make
commercial charges for services and facilities it supplies, other than a
service or facility for which a regulatory fee may be fixed.
Amendment of s 60F (Powers of joint board)
Clause 26 amends section 60F(2)(c) to clarify that the Townsville
Thuringowa Water Supply Joint Board may rely on its general powers as a
legal entity to make commercial charges for services and facilities it
supplies, other than a service or facility for which a regulatory fee may be
fixed.
Insertion of new ch 7, pt 2A
Clause 27 inserts in chapter 7 (Financial Operation and Accountability
of Local Governments) new part 2A (Revenue policy) sections 513A to
513C. These sections provide for a revenue policy to be developed by local
governments to guide the development of revenue options in the budget
process. In order to improve the accountability and transparency of revenue
policy decisions, new part 2A and sections 513A to 513C provide for a
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Local Government Legislation Amendment Bill 2002
two-step process for the development of revenue policies. The process
involves the creation of the following publicly available documents--
1. a revenue policy, which would be adopted in advance of the
budget, to clearly set out the principles used by a local
government in setting its budget and the broad strategy it plans to
use to raise revenue. Principles for setting rates and charges,
such as the extent to which a user pays approach is adopted, will
be the focus of the revenue policy;
2. a revenue statement, which would be an explanatory statement to
accompany the budget, outlining and explaining the revenue
measures adopted in the budget.
The policy intent is for a revenue policy to be strategic in nature,
consequently, a local government will need to prepare the revenue policy in
advance of the budget, in the same way it prepares the corporate plan prior
to the budget. Nothing prevents a local government from incorporating the
revenue policy in the corporate plan.
The revenue statement will accompany the budget but will not form part
of the budget.
PART 2A--REVENUE POLICY
Sections 513A to 513C:
Section 513A (Preparation and adoption of revenue policy) provides
for a local government to adopt by resolution a revenue policy for
each financial year in time to allow preparation and adoption of a
budget for the financial year consistent with the policy.
Section 513B (Requirements and content of revenue policy) provides
that the revenue policy, or an amendment, must comply with the Local
Government Finance Standards. If a local government intends to offer
concessions to a class of ratepayers under section 1035A (Local
government may grant concessions to classes of land owners), the
policy must state the purpose of the class concession. Subsection (3)
provides that a local government may, by resolution, amend its
revenue policy for a financial year at any time before the financial year
ends.
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Local Government Legislation Amendment Bill 2002
Section 513C (Copies of revenue policy to be available for inspection
and purchase) provides that a local government must have its revenue
policy available for inspection and purchase.
Amendment of s 518 (Adoption of budget)
Clause 28(1) amends section 518 heading to include reference to
revenue statements, which now reads (Adoption of budget and revenue
statement). Clause 28(2) substitutes subsection (1) to provide for a local
government to adopt, by resolution for each financial year a budget and a
revenue statement. Clause 28(3) provides the timing for the adoption of the
budget and revenue statement. A revenue statement explains the revenue
measures adopted in the budget.
Amendment of s 519 (Requirements of budgets)
Clause 29 amends section 519 to provide that each budget of a local
government must be developed consistently with its revenue policy. Under
the current law the budget must also be developed consistently with its
corporate plan and operational plan. The amendment also requires the
budget to be accompanied by its revenue statement.
Amendment of s 520 (Content of operating fund budgets)
Clause 30 amends section 520(1)(c) to omit the reference to the previous
revenue policy.
Insertion of new s 520A (Requirements and content of revenue
statement)
Clause 31 inserts section 520A to provide that the revenue statement, or
an amendment, must comply with the LGFS. Section 520A(2) provides
that the revenue statement must, if appropriate, include categories and
criteria of differential general rates, a summary of arrangements made with
another local government if special rates or charges are to be levied to
finance services used by the affected ratepayers in another local
government area, and the criteria used to decide the amount of regulatory
fees.
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Local Government Legislation Amendment Bill 2002
Amendment of s 524 (Budgets to be available for inspection and
purchase)
Clause 32(1) amends section 524 heading, which now reads (Budgets
and revenue statements to be available for inspection and purchase) to
include reference to revenue statements. Clause 32(2) provides that a local
government must keep the budget and its revenue statement open for
inspection and make copies available for purchase.
Amendment of s 534 (Content of report about other issues of public
interest)
Clause 33 amends section 534 to substitute subparagraph (a) to include
in the annual report the requirement for a local government to report on
details of action taken in relation to, and expenditure, on a service facility
or activity for which the council made and levied a special rate or charge
during the year and which was supplied by another local government under
arrangements entered into under the LGA s 59 (Cooperation between local
governments). Also, subparagraph (e) is amended to provide for a summary
of all rebates and concessions for rates levied to be included in the annual
report. Particulars about concessions are included in the new revenue
policy provisions.
Insertion of new s 854B
Clause 34 inserts new section 854B (Local laws and subordinate local
laws about airport landing charges) into chapter 12, part 1, division 2, to
clarify that a local government may make a local law or subordinate local
law to recover an airport landing charge from the holder of a certificate of
registration issued for the aircraft under the Civil Aviation Regulations
1988 (Cwlth). This is intended to be a clarifying provision only about the
power of councils to make a local law for the recovery of airport landing
fees.
Amendment of s 963 (Power to make and levy rates and charges)
Clause 35 amends section 963 to remove from section 963 a local
government's power to fix general charges under section 974, by omitting
subsection (2). Section 974 is being repealed. A new head of power to
make regulatory fees is to be located in chapter 15.
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Local Government Legislation Amendment Bill 2002
Amendment of s 967 (Minimum general rate levy)
Clause 36(1) amends section 967 by substituting subsection (2) and
inserting subsection (2A). The amendment clarifies that there can only be
one minimum general rate levy for a financial year and where there are
differential rating categories, there can only be one minimum general rate
levy per category. Clause 36(2) renumbers subsections (2A) and (3) as
subsections (3) and (4) respectively, to maintain numerical order.
Amendment of s 971 (Special rates and charges)
Clause 37(1) amends section 971 by inserting new subsection (2A) by
providing a local government may fix a minimum amount of a special rate.
Clause 37 (2) amends subsection (7) to provide that a local government
may make and levy a special rate or charge for a service, facility or activity
supplied or undertaken by another local government in the other local
government's area by arrangements under section 59.
Amendment of s 971A (Adjustment of special rates and charges)
Clause 38 amends section 971A. Subsection (4) provides that when a
local government has remaining funds received from a levy for a special
rate or charge, the local government must, as soon as practicable after the
plan is implemented or the decision is made not to fully implement the
overall plan, refund in the same proportions as the special rate or charge
was last levied, to the current owners of the land on which the special rate
or charge was levied.
Insertion of new s 971B (Refund of special rates and charges--special
circumstances)
Clause 39 inserts new section 971B to provide that in particular
circumstances a local government must repay, as soon as practicable, in
reasonable proportions funds received from a levy for a special rate or
charge. Refunds are determined by the extent to which the land, or its
occupiers, benefits from the service, facility or activity. The circumstances
where this requirement applies are where:
(a) the local government decides not to fully implement an overall
plan that has been partly implemented; and
(b) the local government has funds received from a special rate or
charge remaining; and
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Local Government Legislation Amendment Bill 2002
(c) the plan identifies, for different stages of its implementation, the
rateable land, or occupiers of the land, that will benefit from, or
have access to, the service, facility or activity. See also clause 38.
Amendment of s 972 (Separate rates and charges)
Clause 40(1) amends section 972 to clarify that a local government may
make and levy a separate rate or charge in the way it considers appropriate.
Clause 40(2) inserts new subsection (1A) to provide that a local
government may fix a minimum amount of a separate rate. Clause 40(3)
renumbers subsections (1A) and (2) as subsections (2) and (3) respectively,
to maintain numerical order.
Amendment of s 973 (Utility charges)
Clause 41 amends section 973 by inserting subsection (3) to provide that
a local government may, under section 973AA, make and levy a utility
charge before construction of the facilities for supplying the service is
completed.
Insertion of new s 973AA (Utility charges for facilities under
construction)
Clause 42 inserts section 973AA. The intent is to provide certainty about
when construction is deemed to have commenced, where the local
government has decided to levy utility charges during the construction of
infrastructure for the supply of water and sewerage services and before
supply has actually commenced. In this case utility charges may be levied
during the construction period up to two financial years before the supply
of water and sewerage services commences.
Omission of ss 974 and 975
Clause 43 omits sections 974 (General charges) and 975 (Register of
charges). These sections relate to the making of general charges. See clause
66 for the new head of power for regulatory fees and clause 24 in relation
to commercial charges.
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Local Government Legislation Amendment Bill 2002
Amendment of s 977 (Establishing criteria and categories)
Clause 44 amends section 977 to provide an example of how a local
government may decide categories for differential general rates and how
the local government may determine the criteria for those categories.
Amendment of s 983 (Notice to owner of categorisation)
Clause 45 amends section 983 to provide that where a local government
resolves to make and levy a differential general rate, the local government
need only provide a statement informing the owner of categorisation of
land and appeal rights when the first rate notice for a financial year is
issued, or when there has been a change in the categorisation or ownership
of the land. Subsection (4), as renumbered, provides an option for a local
government to decide that a statement containing the information
mentioned in subsection (3) may be contained in, or accompany, any other
rate notice. Clause 45(3) renumbers subsections (1A) to (3) as subsections
(2) and (4) respectively, to maintain numerical order.
Amendment and relocation of s 997 (Resolution to remove valueless
land from land record)
Clause 46 amends section 997 by substituting subsection (1)(b) to
provide local governments with an option in dealing with valueless land to
obtain a market valuation under the Valuers Registration Act 1992 (see the
schedule, definition of "market value") in the event outstanding rates do not
total more than the land's unimproved value. If the market valuation is less
than the total of the outstanding rates, the local government may resolve to
remove the land from the land record. Section 997 has been renumbered as
1051A and relocated to chapter 14, part 7 to enable this provision to apply
to the BCC.
Relocation of s 998 (Restoration of valueless land to land record)
Clause 47 renumbers section 998 as section 1052A and relocates it to
chapter 14, part 7 to enable this provision to apply to the BCC.
Amendment of s 1004 (Notice of sale of land)
Clause 48 amends section 1004 by inserting subsection (4) to provide
that when land is sold, a written notice given to the local government by the
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Local Government Legislation Amendment Bill 2002
vendor's agent in the sale, must state particular details i.e. the date, the
description of the land, the name and address of the vendor before the
change and the name and address of the land's owner after the sale. This is
related to the amendments in clauses 49 51.
Insertion of new s 1006A (Notice of sale or change in ownership by new
owner)
Clause 49 inserts new section 1006A to provide that a purchaser (the
"new owner"), or their agent in the sale, may notify a local government of a
change in ownership. The written notice must include the date, the nature
of the change, the description of the land, the name and address of the land
owner before the change and the name and address of the land owner after
the change. If the local government is satisfied of the sale or change, it may
record the new owner in its land record for the purposes of levying rates
and the new owner is liable for the payment of the rate.
Amendment of s 1007 (Result of failure to give notice of change in
ownership)
Clause 50 amends section 1007 by substituting subparagraph (a) to
provide that the obligation imposed on the person who was the owner of
the land immediately before the change in ownership for payment of all
rates and interest accrued only applies until notice is given to the local
government or the local government records a change in ownership under
section 1006A in response to notification from a purchaser that ownership
of the land has changed.
Amendment of s 1008 (Levying rates)
Clause 51 amends section 1008 to clarify that a local government may
levy a rate only by a rate notice and a rate notice is valid if issued to the
person recorded in the local government's land records as the owner, at the
date of issue. It also requires that the local government must state on, or
include with, the rate notice, information about rate discounts as a
consequence of amendments to section 1019 (Discount for prompt
payment).
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Local Government Legislation Amendment Bill 2002
Amendment of s 1015 (Payment by instalments)
Clause 52 amends section 1015 by inserting subsection (4) to clarify that
in the event of a default on an instalment arrangement established for a rate,
for the purposes of the sale of land provisions under the LGA chapter 14,
part 7, division 3, the overdue rate is taken to have been unpaid from the
first day it became an overdue rate, prior to the instalment resolution.
Amendment of s 1016 (Meaning of "overdue rate")
Clause 53 amends section 1016 to exclude from the definition of
`overdue rate' an amount payable under the terms of an arrangement for
concessions for classes of landowners under new section 1035A (Local
Government may grant concessions to classes of land owners) in clause 58,
see below.
Amendment of s 1019 (Discount for prompt payment)
Clause 54(1) amends section 1019 by inserting in subsection (2) new
paragraph (ca), to provide that after a local government allows a discount,
the local government is then to decide if the discount is allowed only after
another rate is paid before the discount date, or within the discount period,
for the rate or other rate. The policy intent is for a local government to
have the power to decide if discounts should be available where all rates are
paid, or only those rates specified by the local government. In addition, the
local government could decide that a discount on rates is not available if
the ratepayer owes an outstanding amount for work performed by the local
government under the LGA section 1066 (Performing work for owner or
occupier). Clause 54(2) renumbers section 1019(2)(ca) as section
1019(2)(d) and section 1019(2)(d) as section 1019(2)(e) to maintain the
alphabetical order of the subsection.
Amendment of s 1031 (Remission, composition and settlement of rates)
Clause 55 amends section 1031 by substituting subsection (4) and
inserting subsections (4A) and (4B) to clarify that in the event a rate that is
the subject of an agreement with a local government for remission,
composition or settlement of overdue rates is not paid, for the purposes of
the sale of land provisions under the LGA chapter 14, part 7, division 3, the
overdue rate is taken to have been unpaid from the first day it became an
overdue rate, prior to the agreement.
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Local Government Legislation Amendment Bill 2002
Amendment of s 1032 (Deferral of liability to pay rates)
Clause 56 amends section 1032 by substituting subsection (5) and
inserting subsection (5A) and (5B) to clarify that in the event a rate
identified that is the subject of a deferral arrangement for overdue rates is
not paid, for the purposes of the sale of land provisions under the LGA
chapter 14, part 7, division 3, the overdue rate is taken to have been unpaid
from the first day it became an overdue rate, prior to the arrangement.
Amendment of s 1035 (Conditions on exercise of concession powers)
Clause 57 inserts new subsection (3) to remove any doubt, it is declared
that a local government may exercise a power whether or not a rate has
been levied.
Insertion of new ch 14, pt 6, div 2
Clause 58 inserts into chapter 14 (Rates and charges), part 6
(Concessions), new division 2 (Concessions for classes of land owners)
section 1035A (Local Government may grant concessions to classes of
land owners), to provide a local government with the discretion to grant a
rating concession for a class of landowners or entities without an individual
application from each member of that class. Subsection (3) clarifies that if a
local government remits a rate and a landowner of a class identified in the
resolution has already paid the rate, the local government must refund the
overpaid rate. The purpose for which class concessions are to be provided
must be set out in the local government's revenue policy under new section
513B (Requirements and content of revenue policy).
Amendment of s 1036 (Limitation of increase in rate levied)
Clause 59 amends section 1036 by substituting subsection (1) to provide
a local government with a discretionary power to cap rates on properties
where rates have been levied for part of the previous financial year. It also
sets out the method for working out that amount.
Insertion of new s 1037A (Registering charge over land)
Clause 60 inserts new section 1037A to clarify that an overdue rate is a
charge on the land on which the rate was levied. A local government
(including BCC) may lodge a request to register the charge with the
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Local Government Legislation Amendment Bill 2002
register of titles. The charge is an additional remedy provided to local
governments for the recovery of an overdue rate. After payment of the
overdue rate the local government must lodge with the registrar a request to
release the charge.
Amendment of s 1038 (Recovery by court action)
Clause 61 amends section 1038 by omitting subsection (1)(a). This
subsection provided that overdue rates may be recovered by a proceeding
in a Magistrates Court on complaint of a person authorised by the local
government for the purpose. The process did not offer any advantages to
local governments because the enforcement options after obtaining
judgment are more limited than those available in debt recovery
proceedings.
Subsection (4) has been inserted to provide that in a proceeding for the
recovery of overdue rates under subsection (1), where the court orders a
person against whom the judgment is awarded to pay all or part of the local
government's costs, from the date of judgment the amount of those costs is
taken to be an overdue rate under section 1037A (Registering a charge over
the land) and division 3 (Sale of land for overdue rates). This amendment
also applies to BCC.
Amendment of s 1039 (Application of division)
Clause 62 amends section 1039 to provide that the provisions for the sale
of land under division 3 apply if an overdue rate has remained unpaid for 1
year for vacant land or land that is used sole1y for commercial purposes,
after a local government (including BCC) has obtained judgment for the
recovery of the rate.
Amendment of s 1044 (Reserve price at auction)
Clause 63 amends section 1044 to omit subsection (3) definitions
"improved value", "market value" and "registered valuer". The definitions
of "improved value" and "market value" are contained in the schedule and
have been redefined according to the Valuers Registration Act 1992.
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Local Government Legislation Amendment Bill 2002
Amendment of s 1051 (Purpose of this division)
Clause 64 amends section 1051 by substituting subsection (1) to include
in the division the provisions relating to the removal of land from the land
record. The new section 1051A, previously section 997 (Resolution to
remove valueless land from the land record) and section 1052A, previously
section 998 (Restoration of valueless land to the land record), are relocated
to this division to provide the BCC with these powers.
Amendment of s 1068 (Cost of work a charge over land)
Clause 65 amends section 1068 to insert new subsection (7). Section
1068 provides that where an amount is payable by the owner of the land for
work performed by a local government (including BCC) under section
1066, the unpaid amount is a charge on the land and may be registered in
the same way an overdue rate is a charge on the land under 1037A.
Subsection (7) provides consistency between sections 1068 and 1037A by
providing that after payment of the overdue charge, the local government
must lodge with the registrar a request to release the charge.
Insertion of new ch 15, pt 4, div 2A
Clause 66 inserts into chapter 15 (Provisions aiding local government),
part 4 (Execution of local government acts), new division 2A (Regulatory
fees) sections 1071A to 1071E. Division 2A provides a specific head of
power for local governments (including BCC) to set regulatory fees by
resolution or by local law and establishes a register of regulatory fees.
Clause 43 provides for the repeal of the current head of power for the fixing
of general charges under sections 974 and 975. Transitional provisions
apply to these sections.
Division 2A--Regulatory fees
Sections 1071A to 1071E:
Section 1071A (Power to fix regulatory fees) provides a local
government may fix a regulatory fee for an application for, or the issue
of, an approval, consent, licence, permission, registration or other
authority under a local government Act; recording a change of
ownership of land; giving information kept under a local government
Act; and seizing of animals and property under a local government
Act Section 1071A(2) provides that a regulatory fee must not be more
than the cost to the local government of providing the service or
taking the action for which the fee is charged. Subsection (3) provides
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Local Government Legislation Amendment Bill 2002
that subsection (2) does not apply to the extent the regulatory fee
includes a tax component under division 2A. Subsection (4) provides
that a local government may fix a regulatory fee by resolution even if a
corresponding fee had previously been fixed by local law.
The policy intent is that local governments in setting regulatory fees
and charges under s 1071A should recover no more than the costs
incurred in administering a regulatory regime. The policy intent is that
this head of power is not a taxation power, consequently, there is no
authority for councils to set regulatory fees and charges at a level
higher than needed to recover the costs of administering a regulatory
regime.
Section 1071A is intended to authorise a regulatory fee which reflects
the costs of providing the particular activity, such as, the issuing of a
licence for a regulated activity. It is not intended to authorise a fee
that is in fact a device for the raising of revenue intended to fund an
activity that is unrelated to the costs of providing the regulatory
regime.
Section 1071B (Regulation may prescribe circumstances in which
regulatory fee can include tax), provides that a regulation may
prescribe circumstances in which a regulatory fee may include a tax
component. The regulation must state the purpose for which the
prescribed regulatory fee may include the tax component.
Section 1071C (Requirements of local law or resolution fixing
regulatory fee including tax component), provides for the
circumstances in which a regulatory fee may include a tax component.
Section 1071C(2) provides that the prescribed regulatory fee must
state the amount and purpose of the tax component.
Section 1071D (Tax component of prescribed regulatory fees applies
only to rateable land) provides that when a local government fixes a
regulatory fee with a tax component that is payable in relation to the
land, the tax component only applies to rateable land.
Section 1071E (Register of regulatory fees) provides that a local
government must keep a register of its regulatory fees. The register is
open for inspection, to ensure transparency and accountability for the
fixing of prescribed regulatory fees. The register must identify for
each regulatory fee:
· the paragraph of section 1071A(1) for which the fee is
fixed; and
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Local Government Legislation Amendment Bill 2002
· if the fee relates to 1071A(1)(a), (c) or (d) - the specific
provision of the local government Act under which the fee is
fixed.
This provision is based on the same principles as the register of
general charges under the repealed section 975.
Insertion of new s 1205A (Application of certain provisions)
Clause 67 inserts section 1205A, to provide that a number of the
amendments in the Local Government Legislation Amendment Act 2002
apply for the financial year beginning 1 July 2003 and each later financial
year.
Insertion of new ch 19, pt 8
Clause 68 inserts into chapter 19 (Transitional, Validation and Savings
Provisions, Repeals and Amendments), new part 8 (Transitional Provision
for Local Government Legislation Amendment Act 2002) section 1271
(Continuation of general charges and former register of general charges), to
preserve general charges made under section 974 and to provide a
transitional period for local governments to make changes to ensure the
new register of regulatory fees covers both new regulatory fees and
prescribed general charges that are regulatory fees. The policy intent of
sections 1071E and 1271 is to provide a register of regulatory fees that will
clearly identify these fees.
Section 1271
Section 1271(1) (Continuation of general charges and former register
of general charges), defines a "general charge" fixed under section
974 and relating to a matter in section 1071A, as a "prescribed
general charge" for the purposes of section 1071A (Power to fix
regulatory fees), i.e. prescribed general charges are taken to be
regulatory fees under section 1071A. Subsection (2) provides that a
general charge that is not a prescribed general charge is taken to be a
charge under section 36 i.e. it is a commercial charge. Subsection (3)
provides that a local government's register of general charges is taken
to be a register of regulatory fees under section 1071E, to the extent it
contains a record of prescribed general charges. Subsection (4) states
that a local government must identify those general charges that are
not prescribed general charges (see subsection (3)), and remove them
from the register resulting in a register that contains only regulatory
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Local Government Legislation Amendment Bill 2002
fees. Subsection (5) provides for application to the BCC and
subsection (6) provides for the definitions "general charge" and
"register of general charges".
PART 5--AMENDMENTS OF LOCAL GOVERNMENT
(CHINATOWN AND THE VALLEY MALLS) ACT 1984
Act amended in pt 5
Clause 69 provides the short title of the Act to be amended in Part 5.
Part 5 amends the Local Government (Chinatown and The Valley Malls)
Act 1984.
Amendment of s 3 (Interpretation)
Clause 70 amends section 3 by inserting new definitions "authorised
person" and "operator".
The definition "authorised person" is provided for the purpose of new
section 16. Under section 16 an authorised person can move a vehicle in,
or remove a vehicle from, a mall area in certain circumstances. An
authorised person is a person appointed under the LGA chapter 15
(Provisions aiding local government), part 5 (Enforcement of local
government Acts).
The definition "operator" is provided for the purposes of new sections
16A and 16B. Following removal of a vehicle, the town clerk must give
notice about the removal to the operator of a vehicle in accordance with the
requirements of section 16A. A person who meets the definition of
operator, or their representative, or a person who claims a right of
possession can apply for the return of a vehicle under section 16B.
Amendment of s 6 (Restricted traffic on mall)
Clause 71 substitutes the existing maximum penalty of $500 with a
maximum penalty of six penalty units consistent with current drafting
standards.
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Local Government Legislation Amendment Bill 2002
Amendment of s 8 (Closure of road)
Clause 72 substitutes the existing maximum penalty of $500 with a
maximum penalty of six penalty units consistent with current drafting
standards.
Insertion of new ss 16-16C
Clause 73 inserts sections 16 (Removal or moving of vehicles in mall
area), 16A (Notice to operator if vehicle removed from mall area), 16B
(Requirements for return of vehicle) and 16C (Sale of vehicle removed
from mall) to provide the legislative framework for the removal or moving
of vehicles in a mall area and the return or sale of removed vehicles.
Sections 16 to 16C:
Section 16 provides for an authorised person to remove or move a
vehicle in certain circumstances. An authorised person may remove
or move a vehicle if satisfied, on reasonable grounds, that a vehicle
has been:
· abandoned in a mall area,
· left unattended in a mall area and its presence is hazardous,
or
· found in a mall area and its presence is hazardous or
contravenes the Act.
However, an authorised person cannot exercise the power to move or
remove a vehicle (except where a vehicle is abandoned) unless the
person who is or appears to be in control of the vehicle cannot be
readily located, or has failed to remove the vehicle when required by
the authorised person to do so.
Also, a vehicle cannot be moved without the consent of the person
who is or appears to be in control of the vehicle.
Section 16A provides for the town clerk to give written notice
(including a description of the vehicle, the date, time and place of
removal and where the vehicle is kept) within 14 days of the removal
of the vehicle. Where the operator is known, the notice must be given
by serving it on the person personally or delivering it by post. If it is
not practicable to use either of these methods, the notice must be
given by advertising it in a newspaper circulating in the city. Where
the operator of the vehicle is not known, the notice must be given by
advertising it in a newspaper circulating in the city.
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Local Government Legislation Amendment Bill 2002
Section 16B provides for the criteria under which the town clerk may
deliver possession of a vehicle to a person mentioned in subsection
(3). Subsection (2) provides for the town clerk, upon refusal of an
application for the release of the vehicle, to give written notice to the
applicant stating the decision, the reasons for the decision, that the
person can appeal the decision within 28 days to a Magistrates Court
and how the person may appeal against the decision.
Section 16C provides for the town clerk to sell or dispose of a vehicle
and any goods, equipment or thing in or on the vehicle. However, the
town clerk can only proceed to sell a vehicle if:
(a) the town clerk has not delivered possession of the vehicle under
section 16B within 28 days after the notice is given under section
16A; or
(b) if each of the following applies:
· the town clerk has not delivered possession of the vehicle
under section 16B;
· an application has been made under section 16B for the
return of the vehicle;
· the town clerk has refused the application;
· the period allowed for an appeal against the decision has
ended or the appeal has been decided.
Insertion of new pt 3A
Clause 74 inserts new part 3A (Appeals), which provides for an appeal
regime in relation to decisions made by the town clerk under section 16B
(Requirements for return of vehicle) to refuse an application for the return
of a vehicle.
Part 3A--Appeals
Sections 19 to 19E:
Section 19 provides that a person who is dissatisfied with a decision of
the town clerk under section 16B may appeal to a Magistrates Court.
Section 19A sets out the requirements for starting an appeal in the
Magistrates Court. An appeal is started by filing a notice with the clerk
of the Magistrates Court at Brisbane and giving a copy of the notice to
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Local Government Legislation Amendment Bill 2002
the council within 7 days after the notice is filed. The notice must be
filed within 28 days after the appellant receives notice of the appeal.
However, the court may extend the time for filing the notice of appeal.
The notice of appeal must state fully the grounds of the appeal and the
facts relied on.
Section 19B provides that the Magistrates Court may grant a stay of
the decision appealed against to secure the effectiveness of the appeal.
The stay may be given on the conditions the court considers
appropriate and operates for the period fixed by the court and it may
be revoked or amended by the court. The appeal affects the town
clerk's decision, or carrying out of the decision, only if the decision is
stayed.
Section 19C sets out the powers of the Magistrates Court in deciding
the appeal. The appeal is by way of rehearing on the material before
the town clerk and any further evidence allowed by the court. The
court may:
(a) confirm the decision appealed against; or
(b) set aside the decision and substitute another decision; or
(c) set aside the decision and return the matter to the decision maker
with directions the court considers appropriate.
Section 19D provides that if the court substitutes another decision, the
substituted decision is taken to be the decision of the town clerk. This
provision is needed to clarify that a substituted decision cannot be
appealed against to the Magistrates Court.
Section 19E provides that a decision of the Magistrates Court can be
appealed in the District Court but only in relation to a question of law.
Omission of pt 5 (Recovery of penalties by notices)
Clause 75 omits part 5, which provides for a penalty infringement notice
regime for "prescribed infringements" under the Act and the supplementary
local law, to enable BCC to utilise the State Penalties Enforcement Regime
instead.
Amendment of s 39 (Appeal against council's decision etc.)
Clause 76 amends section 39 to remove the reference to part 5 of the
Act, as a consequence of the omission of part 5 by clause 75.
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Local Government Legislation Amendment Bill 2002
Insertion of new s 47 (References in local law to authorised officer)
Clause 77 inserts new section 47 (References in local law to authorised
officer) to provide that a reference in a local law in force immediately
before the repeal of part 5, is taken to be a reference to an authorised person
as defined under the new definition of authorised person inserted by the
Bill. This provision is necessary to enable the continued enforcement of
the local law supplementing the Act after the repeal of part 5 of the Act.
Subsection (2) provides that section 47 expires two years after it
commences. Once BCC remakes the local law within the next two years,
the deeming provision will no longer be needed.
PART 6--AMENDMENT OF LOCAL GOVERNMENT
(QUEEN STREET MALL) ACT 1981
Act amended in pt 6
Clause 78 provides the short title of the Act to be amended in Part 6. Part
6 amends the Local Government (Queen Street Mall) Act 1981.
Amendment of s 3 (Interpretation)
Clause 79 amends section 3 by inserting new definitions "authorised
person" and "operator".
The definition "authorised person" is provided for the purpose of new
section 11. Under section 11 an authorised person can move a vehicle in,
or remove a vehicle from, a mall area in certain circumstances. An
authorised person is a person appointed under the LGA chapter 15
(Provisions aiding local government), part 5 (Enforcement of local
government Acts).
The definition "operator" is provided for the purposes of new sections
11A and 11B. Following removal of a vehicle, the town clerk must give
notice about the removal to the operator of a vehicle in accordance with the
requirements of section 11A. A person who meets the definition of
operator, or their representative, or a person who claims a right of
possession can apply for the return of a vehicle under section 11B.
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Local Government Legislation Amendment Bill 2002
Amendment of s 6 (Restricted traffic on mall)
Clause 80 substitutes the existing maximum penalty of $500 with a
maximum penalty of six penalty units consistent with current drafting
standards.
Amendment of s 8 (Offence to contravene notification)
Clause 81 substitutes the existing maximum penalty of $500 with a
maximum penalty of six penalty units consistent with current drafting
standards.
Insertion of new ss 11-11C
Clause 82 inserts sections 11 (Removal or moving of vehicles in mall
area), 11A (Notice to operator if vehicle removed from mall area), 11B
(Requirements for return of vehicle) and 11C (Sale of vehicle removed
from mall) to provide the legislative framework for the removal or moving
of vehicles in a mall area and the return or sale of removed vehicles.
Sections 11 to 11C:
Section 11 provides for an authorised person to remove or move a
vehicle in certain circumstances. An authorised person may remove
or move a vehicle if satisfied, on reasonable grounds, that a vehicle
has been:
· abandoned in a mall area,
· left unattended in a mall area and its presence is hazardous,
or
· found in a mall area and its presence is hazardous or
contravenes the Act.
However, an authorised person cannot exercise the power to move or
remove a vehicle (except where a vehicle is abandoned) unless the
person who is or appears to be in control of the vehicle cannot be
readily located, or has failed to remove the vehicle when required by
the authorised person to do so.
Also, a vehicle cannot be moved without the consent of the person
who is or appears to be in control of the vehicle.
Section 11A provides for the town clerk to give written notice
(including a description of the vehicle, the date, time and place of
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Local Government Legislation Amendment Bill 2002
removal and where the vehicle is kept) within 14 days of the removal
of the vehicle. Where the operator is know, the notice must be given
by serving it on the person personally or delivering it by post. If it is
not practicable to use either of these methods, the notice must be
given by advertising it in a newspaper circulating in the city. Where
the operator of the vehicle is not know, the notice must be given by
advertising it in a newspaper circulating in the city.
Section 11B provides for the criteria under which a town clerk may
deliver possession of a vehicle to a person mentioned in subsection
(3). Subsection (2) provides for the town clerk, upon refusal of an
application for the release of the vehicle, to give written notice to the
applicant stating the decision, the reasons for the decision, that the
person can appeal the decision within 28 days to a Magistrates Court
and how the person may appeal against the decision.
Section 11C provides for the town clerk to sell or dispose of a vehicle
and any goods, equipment or thing in or on the vehicle. However, the
town clerk can only proceed to sell a vehicle if:
(a) the town clerk has not delivered possession of the vehicle under
section 11B within 28 days after the notice is given under section
11A; or
(b) each of the following applies:
· the town clerk has not delivered possession of the vehicle
under section 11B;
· an application has been made under section 11B for the
return of the vehicle;
· the town clerk has refused the application;
· the period allowed for an appeal against the decision has
ended or the appeal has been decided.
Insertion of new pt 3A
Clause 83 inserts new part 3A (Appeals), which provides for an appeal
regime in relation to decisions made by the town clerk under section 11B
(Requirements for return of vehicle) to refuse an application for the return
of a vehicle.
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Local Government Legislation Amendment Bill 2002
Part 3A--Appeals
Sections 13A to 13F:
Section 13A provides that a person who is dissatisfied with a decision
of the town clerk under section 11B may appeal to a Magistrates
Court.
Section 13B sets out the requirements for starting an appeal in the
Magistrates Court. An appeal is started by filing a notice with the clerk
of the Magistrates Court at Brisbane and giving a copy of the notice to
the council within 7 days after the notice is filed. The notice must be
filed within 28 days after the appellant receives notice of the appeal.
However, the court may extend the time for filing the notice of appeal.
The notice of appeal must state fully the grounds of the appeal and the
facts relied on.
Section 13C provides that the Magistrates Court may grant a stay of
the decision appealed against to secure the effectiveness of the appeal.
The stay may be given on the conditions the court considers
appropriate and operates for the period fixed by the court and it may
be revoked or amended by the court. The appeal affects the town
clerk's decision, or carrying out of the decision, only if the decision is
stayed.
Section 13D sets out the powers of the Magistrates Court in deciding
the appeal. The appeal is by way of rehearing on the material before
the town clerk and any further evidence allowed by the court. The
court may:
(a) confirm the decision appealed against; or
(b) set aside the decision and substitute another decision; or
(c) set aside the decision and return the matter to the decision maker
with directions the court considers appropriate.
Section 13E provides that if the court substitutes another decision, the
substituted decision is taken to be the decision of the town clerk. This
provision is needed to clarify that a substituted decision cannot be
appealed against to the Magistrates Court.
Section 13F provides that a decision of the Magistrates Court can be
appealed in the District Court but only in relation to a question of law.
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Local Government Legislation Amendment Bill 2002
Omission of pt 5 (Recovery of penalties by notice)
Clause 84 omits part 5, which provides for a penalty infringement notice
regime for "prescribed infringements" under the Act and the supplementary
local law, to enable BCC to utilise the State Penalties Enforcement Regime
instead.
Amendment of s 33 (Appeal against council's decision etc.)
Clause 85 amends section 33 to remove the reference to part 5 of the
Act, as a consequence of the omission of part 5 by clause 84.
Insertion of new s 40 (References in local law to authorised officer)
Clause 86 inserts new section 40 (References in local law to authorised
officer) to provide that a reference in a local law in force immediately
before the repeal of part 5, is taken to be a reference to an authorised person
as defined under the new definition of authorised person inserted by the
Bill. This provision is necessary to enable the continued enforcement of
the local law supplementing the Act after the repeal of part 5 of the Act.
Subsection (2) provides that section 40 expires two years after it
commences. Once BCC remakes the local law within the next two years,
the deeming provision will no longer be needed.
PART 7--REPEAL
Clause 87 repeals the Local Government (Malls) Regulation 2000 (LGM
Regulation). The LGM Regulation sets the fine for "prescribed
infringements" under the existing penalty infringement notice regime
under part 5 of the Local Government (Chinatown and The Valley Malls)
Act 1984 and part 5 of the Local Government (Queen Street Mall) Act
1981. Part 5 of each Act is omitted by the Bill to enable BCC to utilise the
State Penalties Enforcement Regime instead and therefore the LGM
Regulation is no longer needed.
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Local Government Legislation Amendment Bill 2002
SCHEDULE--MINOR AND CONSEQUENTIAL
AMENDMENTS
City of Brisbane Act 1924
Clause 1 omits from section 2 definitions previously contained in
sections 49, 50, 51 and 52, now substituted by the Local Government
Legislation Amendment Act 2002.
Clause 2 inserts new definitions into section 2 consistent with definitions
contained in the definitions schedule of the LGA.
Clause 3 amends section 3A to update references to the application of
chapter 19 of the LGA to include the new transitional provisions for the
former register of general charges provisions.
Local Government Act 1993
Clause 1 amends section 6(3)(a)(iv) (Meaning of "material personal
interest") to omit the reference to general charges and as a consequence of
previous amending clauses replaces the reference with a regulatory fee.
Clause 2 amends section 9 to update the references relating to the
application of provisions of the LGA to BCC, to include the transitional
provisions for the register of general charges.
Clause 3 amends section 60R by omitting the reference to the repealed
sections 974 and 975.
Clause 4 amends section 60R by inserting a reference to section 1271
(Continuation of general charges and former register of general charges).
Clause 5 amends section 964 to omit an obsolete cross reference to
section 963(1).
Clause 6 amends section 999 to update the reference to section 997 now
renumbered as section 1051A and relocated.
Clause 7 inserts division 1 heading (Concessions for individual land
owners) into chapter 14 part 6 before section 1031 as a consequence of a
previous amending clause that inserts new division 2, which consists of
section 1035A, after section 1035.
Clause 8 amends section 1035 heading to provide for the new division
that comprises section 1035.
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Local Government Legislation Amendment Bill 2002
Clause 9 inserts division 3 heading (Limitation on rate increases) into
chapter 14 part 6 before section 1036 as a consequence of a previous clause
that inserts new section 1037A after section 1037, and as a consequence of
the division of part 6.
Clause 10 substitutes division 2 heading (Registering charges for, and
recovery of, overdue rates) in chapter 14 part 7 to better reflect the
provisions in the division. Previous clauses insert section 1037A
(Registering a charge over the land) and amend section 1038 (Recovery by
court action) to provide for the registering of charges, and the recovery of
overdue rates.
Clause 11 amends section 1193R (Requirements for application) and
section 1193ZI (Requirements for application) to replace the reference to a
charge fixed under repealed section 974 with a reference to a fee fixed
under section 1071A (Power to fix regulatory fees).
Clause 12 omits the definition "general charge" from the definition
schedule as a consequence of previous clauses.
Clause 13 inserts the definition "improved value" as part of the
definition of "market value", moved to the schedule and substituted to
reflect the defined term in the Valuers Registration Act 1992. The
definitions "prescribed regulatory fee", "regulatory fee" and "tax
component" are defined in the particular provisions to which they relate.
Clause 14 omits from the definition "rating category" in the schedule an
incorrect cross-reference.
© State of Queensland 2002