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This is a Bill, not an Act. For current law, see the Acts databases.
PARLIAMENT OF VICTORIA
Local Government (Amendment) Act 1998
Act No.
TABLE OF PROVISIONS
Clause Page
1. Purpose 1
2. Commencement 2
3. Forms need only contain the details required by the regulations 2
4. Electoral rolls must be updated for by-elections 4
5. Elections not to be held on Easter Saturday 5
6. Clarification of election dates 5
7. Insertion of section 37A 5
37A. Extraordinary vacancies--Councillors elected under
Schedule 3 (Part 4A) or 3A 5
8. Extension of time for the holding of by-elections 6
9. Consequential amendment concerning the filling of vacancies 7
10. Regulations specifying performance measures may be made 7
11. Change to place where notices of candidature to be received 7
12. Minor amendment previously overlooked 7
13. Extension of election period 7
14. Ballot-papers not to show political allegiance etc. of candidates 8
15. Further restriction on who can be a scrutineer 8
16. Disadvantaged voters may ask for assistance with postal voting 8
17. Restriction on number of recounts of votes 9
18. Clarification concerning election methods for certain Councils 9
19. Insertion of Schedule 3A 9
SCHEDULE 3A--PROVISIONS WITH RESPECT TO
FILLING EXTRAORDINARY VACANCIES 9
20. National Competition Policy principles to apply to local laws 17
21. Change to regulation-making power 18
22. Statute law revision 18
NOTES 19
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PARLIAMENT OF VICTORIA
A BILL
to amend the Local Government Act 1989 and for other purposes.
Local Government (Amendment) Act
1998
The Parliament of Victoria enacts as follows:
1. Purpose
The main purposes of this Act are to amend the
Local Government Act 1989--
(a) to enable certain extraordinary vacancies on
5 particular Councils to be filled by a
countback of votes; and
(b) to make various other minor changes to the
electoral provisions of that Act; and
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Local Government (Amendment) Act 1998
s. 2
Act No.
(c) to ensure that local laws comply with
National Competition Policy principles; and
(d) to generally improve the operation of that
Act.
5 2. Commencement
This Act comes into operation on the day on
which it receives the Royal Assent.
3. Forms need only contain the details required by the
regulations
10 (1) In the Local Government Act 1989--
(a) for sections 13(1A)(a) and (b) substitute--
"(a) contain the details required by the
regulations; and";
(b) for sections 16(b) and (c) substitute--
15 "(b) contain the details required by the
regulations; and";
(c) in sections 17(2)(a)(ii) and (b), for "in the
prescribed form" substitute "containing the
details required by the regulations";
20 (d) in section 45(1), omit "in the prescribed
form";
(e) in Schedule 2, in clauses 2 and 5(1)(c), for
"the prescribed form" (wherever occurring)
substitute "writing containing the details
25 required by the regulations";
(f) in Schedule 2, for clause 5(1)(a)
substitute--
"(a) complete a notice of candidature
containing the details required by the
30 regulations; and";
(g) in Schedule 2, for clause 7(2) substitute--
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"(2) A notice of withdrawal must contain
the details required by the regulations
and must be signed by the candidate.";
(h) in Schedule 2, for clause 14(1) substitute--
5 "(1) Ballot-papers for an election must
contain the details required by the
regulations.";
(i) in Schedule 2, for clause 15(2A)
substitute--
10 "(2A) The appointment of a scrutineer must
be made in writing containing the
details required by the regulations and
must be delivered to the returning
officer.";
15 (j) in Schedule 2, for clause 15(4) substitute--
"(4) Before a scrutineer can act as a
scrutineer she or he must make a
written declaration containing the
details required by the regulations.";
20 (k) in Schedule 3, for clause 17(1)(a)
substitute--
"(a) ballot-papers to be used in the poll must
contain the details required by the
regulations;";
25 (l) in Schedule 5, in clause 1(1) omit "in the
prescribed form";
(m) in Schedule 5, after clause 1(1) insert--
"(1A) The application must be made in
writing and must contain the details
30 required by the regulations.".
(2) After section 45(1) of the Local Government Act
1989 insert--
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"(1A) The application must be made in writing and
must contain the details required by the
regulations.".
4. Electoral rolls must be updated for by-elections
5 (1) After section 21(4) of the Local Government Act
1989 insert--
"(5) If an Order in Council is made under section
21A(e) and a by-election is to be held for
one or more wards only, the Electoral
10 Commissioner need only supply the relevant
lists and information for those wards.".
(2) In section 21A of the Local Government Act
1989--
(a) in paragraph (c), after "of that Council"
15 insert "(unless paragraph (e) applies)";
(b) after paragraph (d) insert--
"(e) must be specified in respect of any
Council that is to hold a by-election
(unless the by-election is to be held at
20 the same time as a general election).".
(3) After section 22(2) of the Local Government Act
1989 insert--
"(2A) If an Order in Council is made under section
21A(e) and a by-election is to be held for
25 one or more wards only, the Chief Executive
Officer need only make out a voters' list for
those wards.".
(4) After section 24(4A) of the Local Government
Act 1989 insert--
30 "(4B) If an Order in Council is made under section
21A(e), the Chief Executive Officer must not
later than 3 days before nomination day
certify in writing that the voters' roll for the
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s. 5
Act No.
by-election has been prepared in accordance
with this Act.".
5. Elections not to be held on Easter Saturday
(1) After section 32(2) of the Local Government Act
5 1989 insert--
"(3) If the third Saturday in March in any year is
Easter Saturday, the annual election of
Councillors is to be held on the second
Saturday in March in that year.".
10 (2) After section 36(2) of the Local Government Act
1989 insert--
"(3) If the third Saturday in March in an election
year is Easter Saturday, the general election
of Councillors is to be held on the second
15 Saturday in March in that year.".
6. Clarification of election dates
For section 36(2) of the Local Government Act
1989 substitute--
"(2) A general election of Councillors must be
20 held on the third Saturday in March--
(a) in every third year after the general
election held under sub-section (1); or
(b) in the case of the City of Melbourne, in
every third year after 1996.".
25 7. Insertion of section 37A
After section 37 of the Local Government Act
1989 insert--
"37A. Extraordinary vacancies--Councillors
elected under Schedule 3 (Part 4A) or 3A
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8
Act No.
(1) This section applies if--
(a) an extraordinary vacancy occurs as a
result of the departure from office of a
person who was elected to a Council in
5 accordance with Part 4A of Schedule 3
or with Schedule 3A; and
(b) either--
(i) the vacancy occurs more than
3 months before a general election
10 is due; or
(ii) the Council decides to fill the
vacancy within 3 months before a
general election is due.
(2) The extraordinary vacancy is to be filled in
15 accordance with Schedule 3A.
(3) This section overrides any provision to the
contrary in section 38.
(4) An election to fill an extraordinary vacancy
to which this section applies must be
20 conducted--
(a) by the returning officer who conducted
the election at which the person whose
departure created the extraordinary
vacancy was elected; or
25 (b) if that is not possible, by the deputy
returning officer at that election; or
(c) if that is not possible, by a returning
officer appointed in accordance with
this Act.".
30 8. Extension of time for the holding of by-elections
In section 38(1) of the Local Government Act
1989, for "60th day" substitute "90th day".
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9. Consequential amendment concerning the filling of
vacancies
In section 70 of the Local Government Act 1989,
for "A Councillor" substitute "Subject to
5 Schedule 3A, a Councillor".
10. Regulations specifying performance measures may be
made
After section 153A(5) of the Local Government
Act 1989 insert--
10 "(6) The regulations may require that Councils
include in their corporate plans specified
performance measures by which their
performance may be judged in relation to the
achievement of their business plans.".
15 11. Change to place where notices of candidature to be
received
In Schedule 2 of the Local Government Act
1989, in clause 3(2), for "Council office"
substitute "place specified in the public notice".
20 12. Minor amendment previously overlooked
In Schedule 2 of the Local Government Act
1989, in clause 6(6A), for "the City of
Melbourne" substitute "a Council holding
elections for both wards and the municipal district
25 as a whole".
13. Extension of election period
(1) In Schedule 2 of the Local Government Act
1989, in clauses 3(2), 7(1), 9(1) and (2), 10(2)(a)
and (4) and 14(2), for "30th day" substitute "31st
30 day".
(2) In Schedule 5 of the Local Government Act
1989, in clause 1, for "30th day" (wherever
occurring) substitute "31st day".
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Local Government (Amendment) Act 1998
s. 14
Act No.
14. Ballot-papers not to show political allegiance etc. of
candidates
In Schedule 2 of the Local Government Act
1989, after clause 14(4) insert--
5 "(5) Despite sub-clause (4), a ballot-paper must
not contain any reference to the allegiance of
a candidate to any political party or other
cause or to the fact that a candidate has no
such allegiance.
10 (6) Sub-clause (5) does not apply to the name of
a candidate.".
15. Further restriction on who can be a scrutineer
In Schedule 2 of the Local Government Act
1989, after clause 15(3)(c) insert--
15 "; or
(d) a person appointed by the State Electoral
Office, the Australian Electoral Commission
or another Council to be involved in the
conduct of the election if that Office,
20 Commission or Council has been appointed
to conduct the election.".
16. Disadvantaged voters may ask for assistance with
postal voting
In Schedule 3 of the Local Government Act
25 1989, after clause 2(2) insert--
"(2A) The voter may also request--
(a) a person nominated by the voter; or
(b) an authorised person--
to complete any certificate or declaration that
30 must accompany a postal vote or to sign such
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s. 17
Act No.
a certificate or declaration on the voter's
behalf.".
17. Restriction on number of recounts of votes
In Schedule 3 of the Local Government Act
5 1989, after clause 13(1) insert--
"(1A) The returning officer may only exercise the
power conferred on her or him by sub-clause
(1)(a) once in relation to any parcel of ballot-
papers.
10 (1B) If the returning officer has complied with a
request under sub-clause (1)(b) in relation to
a parcel of ballot-papers, sub-clause (1)(b)
ceases to apply to that parcel of ballot-
papers, regardless of who makes any
15 subsequent request.".
18. Clarification concerning election methods for certain
Councils
In Schedule 3 of the Local Government Act
1989--
20 (a) for the heading to Part 4A substitute
"PART 4A--METHOD TO BE USED
FOR DISTRICT-WIDE ELECTIONS
FOR SPECIFIED COUNCILS";
(b) in clause 11A(1), omit "at which 2 or more
25 Councillors are to be elected".
19. Insertion of Schedule 3A
After Schedule 3 of the Local Government Act
1989 insert--
'SCHEDULE 3A--PROVISIONS WITH RESPECT TO
30 FILLING EXTRAORDINARY VACANCIES
PART 1--PRELIMINARY MATTERS
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Local Government (Amendment) Act 1998
s. 19
Act No.
1. Definitions
In this Schedule--
"eligible candidate" means a person who--
(a) was a candidate at the relevant election; and
5 (b) did not withdraw or retire from, and was not
elected at, that election; and
(c) is still eligible to be elected as a Councillor;
"relevant election" means the election at which the
vacating Councillor was elected;
10 "vacating Councillor" means the person whose departure
created the extraordinary vacancy (even if that person
never became a Councillor).
2. Invitation to participate
(1) Within 14 days of an extraordinary vacancy occurring, the
15 returning officer--
(a) must publish a public notice inviting eligible
candidates to participate in a countback of votes; and
(b) must write to each eligible candidate whose current
address is known inviting the candidate to participate
20 in a countback of votes.
(2) A person who wishes to participate in a countback of votes
must give the returning officer a signed notice that--
(a) states that wish; and
(b) declares that she or he is an eligible candidate; and
25 (c) contains any other details required by the
regulations--
before 4 p.m. on the 14th day after the date of the notice or
written invitation.
3. Filling of multiple vacancies
30 (1) If there is more than one extraordinary vacancy to be filled
at any time, the extraordinary vacancy that occurred first is
to be filled first.
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s. 19
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(2) If, in the opinion of the returning officer, it is impossible to
determine which vacancy occurred first, the vacating
Councillor who was elected first (either at the same election
or in point of time) is deemed to have left her or his office
5 before the other vacating Councillor or Councillors.
(3) If it is still not possible to determine which vacancy
occurred first despite sub-clause (2), the returning officer
must determine by lot which extraordinary vacancy is to be
filled first.
10 (4) The returning officer may comply with clauses 2(1) and (2)
in respect of an extraordinary vacancy even while she or he
or another returning officer is complying with those sub-
clauses in respect of another extraordinary vacancy.
4. Procedure if no eligible candidates wish to participate in
15 countback
(1) If no eligible candidate gives the returning officer the notice
required by clause 2(3) within the time required by that
clause, a by-election must be held to fill the extraordinary
vacancy.
20 (2) Despite clause 3(1), by-elections to fill 2 or more
extraordinary vacancies may be held at the same time.
5. Procedure if there is only 1 eligible candidate
If only one eligible candidate gives the returning officer the
notice required by clause 2(3) within the time required by
25 that clause, the returning officer must declare that candidate
to be elected.
6. Procedure if there is more than one eligible candidate
(1) If more than one eligible candidate gives the returning
officer the notice required by clause 2(3) within the time
30 required by that clause, the returning officer must--
(a) fix a place, date and time for a countback of votes in
accordance with Part 2 of this Schedule; and
(b) notify in writing each participating eligible candidate
of the place, date and time; and
35 (c) give public notice of the fact that a countback of votes
will occur, the names and addresses of the
participating eligible candidates and the place, date
and time at or on which the countback will occur.
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(2) The date fixed for the countback must be the date that is, in
the opinion of the returning officer, the first date on which it
will be practicable to conduct a countback in accordance
with this Act.
5 7. Other procedural matters
(1) An eligible candidate who has given the notice required by
clause 2(3) may withdraw the notice before 4 p.m. on the
day before the date fixed for the countback of votes.
(2) A notice of withdrawal must contain the details required by
10 the regulations and must be signed by the candidate.
(3) If an eligible candidate who has given the notice required by
clause 2(3) dies before the countback of votes is completed,
the notice becomes void.
8. Other matters
15 Clauses 15, 17 and 25(2) of Schedule 2 and clauses 12 and
13 of Schedule 3 apply to a countback of votes.
PART 2--COUNTBACK PROCEDURE
9. Countback may be conducted using existing electronic database
(1) This clause applies if a copy of all valid ballot-papers cast at
20 a relevant election exists in an electronic form.
(2) The returning officer may conduct a countback of votes by
using the electronic form of the ballot-papers if she or he
certifies in writing that she or he is satisfied, after
conducting any tests that she or he considers to be
25 appropriate, that the electronic form of the ballot-papers is
an accurate copy of all the valid ballot-papers that were cast
at the relevant election.
10. Retrieval and opening of parcels of ballot-papers
(1) This clause applies if neither clause 9(1) nor (2) applies.
30 (2) The returning officer must ask the Chief Executive Officer
for the parcels of valid ballot-papers that were given to the
Chief Executive Officer after the relevant election.
(3) The Chief Executive Officer must comply with the request
as soon as it is reasonably practicable to do so.
35 (4) The returning officer must open the parcels of ballot-papers
at the place and time, and on the date, fixed for the
countback of votes under clause 6.
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Local Government (Amendment) Act 1998
s. 19
Act No.
(5) If any validly appointed scrutineers are present for the
countback and have indicated that they wish to observe the
opening of the parcels, the parcels must be opened in the
presence of those scrutineers.
5 11. Relevant ballot-papers to be ascertained
The following ballot-papers must be brought together--
(a) if the vacating Councillor obtained a quota on first
preferences, all the ballot-papers on which those
preferences are marked; or
10 (b) if the vacating Councillor was elected after a transfer
or transfers of ballot-papers--
(i) all the ballot-papers counted to the vacating
Councillor at the time that she or he was
elected; and
15 (ii) if the vacating Councillor was declared elected
under clause 11B(19) of Schedule 3 following
the exclusion of a candidate, all of the ballot-
papers that--
(A) were not transferred to her or him from
20 that candidate or those candidates
because it was unnecessary; and
(B) showed a next available preference for
the vacating Councillor.
12. Votes to be transferred from vacating Councillor to eligible
25 candidates
(1) Those ballot-papers must then be transferred to the
participating eligible candidates in accordance with the next
available preference shown on the ballot-papers, at their
respective transfer values, beginning with the ballot-papers
30 with the highest transfer value and ending with the ballot-
papers with the lowest transfer value, and must be
transferred as follows--
(a) the total number of ballot-papers of a particular
transfer value that show the next available preference
35 for a particular participating eligible candidate must
be multiplied by that transfer value; and
(b) the number obtained under paragraph (a)
(disregarding any fraction) must be credited as votes
to that candidate; and
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s. 19
Act No.
(c) all those ballot-papers must be transferred to that
candidate.
(2) The transfer value of a ballot-paper is--
(a) in the case of a ballot-paper received by the vacating
5 Councillor as a first preference--1;
(b) in the case of a ballot-paper received by the vacating
Councillor after the count of first preferences, but
before the transfer at which she or he was elected--
the transfer value at which it was received by the
10 vacating Councillor;
(c) in the case of a ballot-paper received by the vacating
Councillor at the transfer at which she or he was
elected--the number obtained by dividing the number
of votes by which the vacating Councillor,
15 immediately before that transfer, was short of the
quota, by the number of ballot-papers transferred to
the vacating Councillor at that transfer;
(d) in the case of a ballot-paper specified in clause
11(b)(ii)--the transfer value at which the ballot-paper
20 would have been transferred to the vacating
Councillor if a transfer had been necessary.
(3) For the purposes of this clause--
(a) a preference expressed for one of the following
people is to be disregarded--
25 (i) the vacating Councillor; or
(ii) a person elected at the relevant election or at a
countback of votes; or
(iii) a person who is not participating in the
countback of votes; and
30 (b) a preference that has been disregarded is to be taken
to be substituted for the next available preference on
the ballot-paper that is not for a person listed in
paragraph (a)(i), (ii) or (iii); and
(c) a first preference for a participating eligible candidate
35 who was excluded at the relevant election that
appears on a ballot-paper that was transferred to the
vacating Councillor is to be counted for that
candidate.
13. Countback to be stopped if absolute majority obtained
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s. 19
Act No.
(1) After the transfers required by clause 12 have been
completed, if a participating eligible candidate has an
absolute majority the returning officer must declare that
candidate to be elected.
5 (2) For the purposes of this clause, a candidate has an absolute
majority if the number of votes credited to that candidate is
more than 50% of the total number of votes credited to all
the participating eligible candidates after the transfers.
14. Next stage (if necessary)
10 (1) If no participating eligible candidate has an absolute
majority of votes, the participating eligible candidate with
the fewest votes must be excluded.
(2) The excluded candidate's ballot-papers must be transferred
to the continuing participating eligible candidates in
15 accordance with the preferences shown on those ballot-
papers, at their respective transfer values, beginning with
the ballot-papers with the highest transfer value and ending
with those with the lowest transfer value, as follows--
(a) the total number of ballot-papers received by the
20 excluded candidate at a particular transfer value and
expressing the next available preference for a
particular continuing eligible candidate must be
multiplied by that transfer value; and
(b) the number obtained under paragraph (a)
25 (disregarding any fraction) must be added to the
number of votes of that continuing candidate; and
(c) all those ballot-papers must be transferred to that
continuing candidate.
(3) The transfer value of a ballot-paper for the purposes of this
30 clause is the same as the transfer value set out in clause
12(2).
(4) After doing this in respect of each continuing participating
eligible candidate, if a candidate has an absolute majority
the returning officer must declare that candidate to be
35 elected.
(5) For the purposes of this clause, a candidate has an absolute
majority if the number of votes credited to that candidate is
more than 50% of the total number of votes credited to all
the continuing participating eligible candidates after the
40 transfers and additions required by sub-clause (2).
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s. 19
Act No.
15. Process if vote equal
(1) If--
(a) a participating eligible candidate must be excluded;
and
5 (b) 2 or more of the continuing participating eligible
candidates having the fewest votes have an equal
number of votes after the process referred to in clause
13 or clause 14--
the candidate who had the fewest votes at the last count or
10 transfer at which they had an unequal number of votes is to
be excluded.
(2) If there is no stage at which the 2 or more continuing
participating eligible candidates had an unequal number of
votes, the returning officer must decide by lot which
15 candidate is to be excluded.
16. Final stage (if necessary)
(1) If no participating eligible candidate has an absolute
majority of votes the process described in clause 14 must be
repeated until--
20 (a) a participating eligible candidate receives an absolute
majority within the meaning of clause 14(5); or
(b) there are only 2 continuing participating eligible
candidates, neither of whom has an absolute majority
of votes.
25 (2) If sub-clause (1)(b) applies, the returning officer must
declare to be elected the candidate who had the most votes
at the last count or transfer at which the 2 candidates had an
unequal number of votes.
(3) If there is no stage at which the 2 candidates had an unequal
30 number of votes, the returning officer must decide by lot
which candidate is to be elected.
17. Declaration of result
(1) As soon as possible after the election of a candidate, the
returning officer must publicly declare that candidate to be
35 elected.
(2) The returning officer must as soon as is practicable after
making such a declaration--
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Local Government (Amendment) Act 1998
s. 19
20
Act No.
(a) give public notice of the name of the person elected;
and
(b) advise the Minister of the result.
18. Ballot-papers to be returned
5 (1) This clause applies if the returning officer was given parcels
of ballot-papers under clause 10.
(2) Clause 15 of Schedule 3 (other than clauses 15(1)(a)(ii) and
(iii) and (c)(ii)) applies as if a reference in that clause to the
count of votes was a reference to a countback of votes.
10 (3) A reference to 3 years in clause 15 is to be continued to be
construed as a reference to 3 years after the Chief Executive
Officer first received the parcels under that clause.
19. Replacement of a Councillor elected at a countback
(1) In this clause--
15 "first vacating Councillor" means a vacating Councillor
who was elected at a general election;
"later vacating Councillor" means a vacating Councillor
who was elected to the office held by the first
vacating Councillor as a result of a countback of votes
20 under this Schedule (even if she or he is not the
immediate successor of the first vacating Councillor).
(2) If an extraordinary vacancy is caused by the departure of a
later vacating Councillor, a reference in this Part (other than
in sub-clause (1)) to "vacating Councillor" is to be read as a
25 reference to the first vacating Councillor.'.
20. National Competition Policy principles to apply to
local laws
(1) In Schedule 8 of the Local Government Act
1989, after clause 2(i) insert--
30 "(j) restrict competition unless it can be
demonstrated that--
(i) the benefits of the restriction to the
community as a whole outweigh the
costs; and
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Local Government (Amendment) Act 1998
s. 22
Act No.
(ii) the objectives of the local law can only
be achieved by restricting
competition.".
(2) After section 123(2) of the Local Government
5 Act 1989 insert--
"(3) If the Minister is of the opinion that a local
law substantially breaches clause 2(j) of
Schedule 8, she or he must not recommend
that the local law be revoked unless she or he
10 has consulted the Council that made the local
law about the possible breach.
(4) The Minister must not, before 1 July 1999,
recommend that a local law made before
1 July 1997 be revoked on the grounds that it
15 substantially breaches clause 2(j) of
Schedule 8.".
21. Change to regulation-making power
In Schedule 12 of the Local Government Act
1989, in clause 5, for "spread" substitute
20 "attendance".
22. Statute law revision
In the Local Government Act 1989--
(a) section 183(1)(a) is repealed;
(b) in section 228(1)--
25 (i) for "the Local Government Board
against" substitute "a local government
panel against";
(ii) for "Local Government Board"
(wherever else occurring) substitute
30 "panel".
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Local Government (Amendment) Act 1998
Notes
Act No.
NOTES
By Authority. Government Printer for the State of Victoria.
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Local Government (Amendment) Act 1998
Act No.
20
532012B.I1-16/4/98
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