Western Australia Local Government Act 1995 Western Australia Local Government Act 1995 CONTENTS Part 1 - Introductory matters 1.1. Short title 2 1.2. Commencement 2 1.3. Content and intent 2 1.4. Terms used in this Act 3 1.5. Descriptions in italics not part of the law 8 1.6. Crown not generally bound 8 1.7. Local public notice 8 1.8. Statewide public notice 9 1.9. Decisions by absolute majority 9 1.10. Decisions by special majority 10 Part 2 - Constitution of local government Division 1 - Districts and wards 2.1. State divided into districts 11 2.2. Districts may be divided into wards 12 2.3. Names of districts and wards 12 2.4. District to be a city, town or shire 13 Division 2 - Local governments and councils of local governments 2.5. Local governments created as bodies corporate 14 2.6. Local governments to be run by elected councils 14 2.7. The role of the council 15 2.8. The role of the mayor or president 15 2.9. The role of the deputy mayor or deputy president 16 2.10. The role of councillors 16 Division 3 - How offices on the council are filled 2.11. Alternative methods of filling the office of mayor or president 16 2.12. Electors may propose change of method 17 2.12A. Procedure to change method to election by council 18 2.13. When a new method takes effect 19 2.14. Extension of term in certain cases 20 2.15. Filling the office of deputy mayor or deputy president 20 2.16. Filling the offices of the councillors 20 Division 4 - Membership and size of the council 2.17. The members of council 20 2.18. Fixing and changing the number of councillors 21 Division 5 - Qualifications for holding office on the council 2.19. Qualifications for election to council 22 2.20. Members of parliament disqualified for election 22 2.21. Disqualification because of insolvency 23 2.22. Disqualification because of convictions 23 2.23. Disqualification because of membership of another council 24 2.24. Disqualification because of misapplication of funds or property 24 2.25. Disqualification for failure to attend meetings 24 2.26. Election to council terminates employment with local government 26 2.27. Procedure to determine qualification to retain membership of council 26 Division 6 - Terms of office on the council and vacation of office 2.28. Days on which terms begin and end 28 2.29. Declaration 32 2.30. Terms extended if ordinary elections delayed 32 2.31. Resignation 32 2.32. How extraordinary vacancies occur in offices elected by electors 33 2.33. Extraordinary vacancy on election to a parliament 33 2.34. How extraordinary vacancies occur in offices elected by the council 34 2.35. Vacancies on restructure of districts, wards or membership 34 2.36. Vacancies on dismissal of council 35 2.36A. Power to declare offices vacant if district is to be abolished 35 2.37. Power to declare offices vacant 35 2.37A. Vacancies in all offices for any other reason 36 Division 7 - Commissioners 2.38. The function of a commissioner 37 2.39. Appointment of commissioner 37 2.40. Joint commissioners 37 2.41. Appointment, tenure, meetings etc. 38 2.42. Commissioner to make declaration 38 2.43. Applicability of certain provisions of this Act 38 Division 8 - Local Government Advisory Board 2.44. Establishment of Advisory Board 38 2.45. Functions of Advisory Board 39 Part 3 - Functions of local governments Division 1 - General 3.1. General function 40 3.2. Relationship to State Government 40 3.3. Act not to affect Crown's rights concerning alienated land 41 3.4. Functions may be legislative or executive 41 Division 2 - Legislative functions of local governments Subdivision 1 - Local laws made under this Act 3.5. Legislative power of local governments 41 3.6. Places outside the district 42 3.7. Inconsistency with written laws 42 3.8. Local laws may adopt codes etc. 42 3.9. Model local laws 43 3.10. Creating offences and prescribing penalties 43 Subdivision 2 - Local laws made under any Act 3.11. Subdivision applies to local laws made under any Act 44 3.12. Procedure for making local laws 44 3.13. Procedure where significant change in proposal 46 3.14. Commencement of local laws 46 3.15. Local laws to be publicized 47 3.16. Periodic review of local laws 47 3.17. Governor may amend or repeal local laws 48 Division 3 - Executive functions of local governments Subdivision 1 - Performing executive functions 3.18. Performing executive functions 48 3.19. Places to be regarded as within the district 49 3.20. Performing functions outside the district 49 3.21. Duties when performing functions 50 3.22. Compensation 51 3.23. Arbitration 52 Subdivision 2 - Certain provisions about land 3.24. Authorising persons under this Subdivision 52 3.25. Notices requiring certain things to be done by owner or occupier of land 52 3.26. Additional powers when notices given 53 3.27. Particular things local governments can do on land that is not local government property 54 Subdivision 3 - Powers of entry 3.28. When this Subdivision applies 55 3.29. Powers of entry are additional 55 3.30. Assistants and equipment 56 3.31. General procedure for entering property 56 3.32. Notice of entry 56 3.33. Entry under warrant 57 3.34. Entry in an emergency 57 3.35. Purpose of entry to be given on request 58 3.36. Opening fences 58 Subdivision 4 - Impounding abandoned vehicle wrecks and goods involved in certain contraventions 3.37. Contraventions that can lead to impounding 59 3.38. Terms used in this Subdivision 59 3.39. Power to remove and impound 60 3.40. Vehicle may be removed if goods to be impounded are in or on the vehicle 60 3.40A. Abandoned vehicle wreck may be taken 61 3.41. Notice to collect impounded perishable goods 62 3.42. Impounded non-perishable goods 62 3.43. Court may confiscate impounded non-perishable goods 62 3.44. Notice to collect goods if not confiscated 63 3.45. Notice to include warning 63 3.46. Goods may be withheld until costs paid 63 3.47. Disposing of confiscated or uncollected goods 63 3.47A. Disposal of sick or injured animals 65 3.48. Recovery of impounding expenses 65 Subdivision 5 - Certain provisions about thoroughfares 3.50. Closing certain thoroughfares to vehicles 66 3.50A. Partial closure of thoroughfare for repairs or maintenance 67 3.51. Affected owners to be notified of certain proposals 68 3.52. Public access to be maintained and plans kept 69 Subdivision 6 - Various executive functions 3.53. Control of certain unvested facilities 69 3.54. Reserves under control of a local government 70 3.55. Acquisition of land 70 3.56. Tidal waters 71 3.57. Tenders for providing goods or services 71 3.58. Disposing of property 71 3.59. Commercial enterprises by local governments 73 3.60. No capacity to form or acquire control of body corporate 76 Division 4 - Regional local governments 3.61. Establishing a regional local government 76 3.62. Constitution and purpose of a regional local government 77 3.63. Dissolution or partial dissolution of a regional local government 77 3.64. What the establishment agreement is to contain 78 3.65. Amendment of establishment agreement 79 3.66. Application of enabling Acts to a regional local government 79 3.67. Inconsistency between regional and other local laws 80 3.68. Other arrangements not affected 80 Part 4 - Elections and other polls Division 1 - Preliminary 4.1. Terms used in this Part 81 4.1A. Conflict with Commonwealth or State election or referendum 82 4.1B. Polling day may be changed where conflict with Commonwealth or State election or referendum 83 Division 2 - Inaugural elections 4.2. Inaugural elections 83 4.3. Polling day for inaugural election 84 Division 3 - Ordinary elections 4.4. Ordinary elections 84 4.5. Frequency of ordinary elections 84 4.6. Election day for ordinary elections 84 4.7. Ordinary elections day usually the third Saturday in October 85 Division 4 - Extraordinary elections 4.8. Extraordinary elections 86 4.9. Election day for extraordinary election 86 4.10. Extraordinary election can be held before a resignation has taken effect 87 Division 5 - Other elections 4.11. Elections after restructure of districts, wards or membership 87 4.12. Elections after reinstatement of council 87 4.13. Elections after all members' offices become vacant 87 4.14. Elections after council is dismissed 88 4.15. Fresh election after election declared invalid 88 Division 6 - Postponement and consolidation of elections 4.16. Postponement of elections to allow consolidation 88 4.17. Cases in which vacant offices can remain unfilled 89 4.18. Certain elections to be held as one 91 Division 7 - Provisions about electoral officers and the conduct of elections 4.19. The returning officer 91 4.20. CEO to be returning officer unless other arrangements are made 91 4.21. Deputy returning officers 92 4.22. Returning officer to conduct elections 92 4.23. Returning officer's functions 93 4.24. Electoral Commissioner's functions 93 4.25. Access to information 93 4.26. Delegation 94 4.27. Regulations about electoral officers and the conduct of elections 94 4.28. Fees and expenses 94 Division 8 - Eligibility for enrolment 4.29. Eligibility of residents to be enrolled 95 4.30. Eligibility of non-resident owners and occupiers to be enrolled 95 4.31. Rateable property: ownership and occupation 96 4.32. How to claim eligibility to enrol under section 4.30 97 4.33. Expiry of claim of eligibility to enrol under section 4.30 99 4.34. Accuracy of enrolment details to be maintained 100 4.35. Decision that eligibility to enrol under section 4.30 has ended 100 Division 9 - The electoral process 4.36. Application and definitions 101 4.37. New roll for each election 101 4.38. What the roll consists of 102 4.39. Close of enrolments 102 4.40. Residents roll 102 4.41. Owners and occupiers roll 103 4.42. Supply of rolls to returning officer, members and candidates 103 4.43. Correction of rolls 103 4.44A. Alteration of rolls 104 4.44. One enrolment per roll 105 4.45. Failure to comply with time limits as to preparation of rolls 105 4.46. Fresh roll may be required 105 4.47. Call for nominations 106 4.48. Eligibility to be a candidate 106 4.49. How to make an effective nomination 107 4.50. How deposits are dealt with 107 4.51. Rejection of nomination 107 4.52. Exhibition of candidates' details and profiles 108 4.53. Cancellation of nominations 109 4.54. Nominations to be declared 110 4.55. Same number of candidates as vacancies 110 4.56. More candidates than vacancies 110 4.57. Less candidates than vacancies 110 4.58. Death of candidate after close of nominations 111 4.59. Regulations about candidates 111 4.60. Voting by electors 112 4.61. Choice of methods of conducting the election 112 4.62. Polling places required 113 4.63. Appointment of presiding and other officers 114 4.64. Public notice about the election 114 4.65. Right to vote 114 4.66. One vote for each elector 115 4.67. Where to vote in person 115 4.68. When to vote 115 4.69. How to vote 116 4.70. Presiding officer to maintain order at polling place 116 4.71. Regulations about voting procedure 116 4.72. Outcome of election to be determined 118 4.73. Procedure when a person is a candidate in 2 elections 118 4.74. How votes are counted 119 4.75. Giving effect to the elector's wishes 119 4.76. Review of decisions on ballot papers 119 4.77. Returning officer to declare result 119 4.78. Order of retirement of councillors 120 4.79. Report to Minister 120 Division 10 - Validity of elections 4.80. Complaints about the result of an election 121 4.81. Complaints to go to a Court of Disputed Returns 121 4.82. No appeal 122 4.83. Certain defects do not affect an election 122 4.84. Regulations about retention and availability of electoral papers 122 Division 11 - Electoral offences 4.85. Bribery and undue influence 122 4.86. Breach or neglect by officers 124 4.87. Printing and publication of electoral material 124 4.88. Misleading, false or defamatory statements 125 4.89. No canvassing in or near polling places 126 4.90. False statements 126 4.91. Offences relating to nomination papers, ballot papers and ballot boxes 126 4.92. Offences relating to postal votes 127 4.93. Interference with electors: infringement of secrecy 128 4.94. Other electoral offences 128 4.95. Attempts to commit offences 129 4.96. Investigation of electoral misconduct 129 4.97. Prosecutions 130 4.98. Criminal Code not to apply 130 Division 12 - Polls and referendums 4.99. Election procedures to apply to polls and referendums 130 Part 5 - Administration Division 1 - Introduction 5.1. Term used in this Part 132 5.2. Administration of local governments 132 Division 2 - Council meetings, committees and their meetings and electors' meetings Subdivision 1 - Council meetings 5.3. Ordinary and special council meetings 133 5.4. Calling council meetings 133 5.5. Convening council meetings 133 5.6. Who presides at council meetings 133 5.7. Minister may reduce number for quorum and certain majorities 134 Subdivision 2 - Committees and their meetings 5.8. Establishment of committees 134 5.9. Types of committees 135 5.10. Appointment of committee members 135 5.11A. Deputy committee members 136 5.11. Tenure of committee membership 137 5.12. Election of presiding members and deputies 138 5.13. Functions of deputy presiding members 138 5.14. Who acts if no presiding member 138 5.15. Reduction of quorum for committees 139 5.16. Delegation of some powers and duties to certain committees 139 5.17. Limits on delegation of powers and duties to certain committees 140 5.18. Register of delegations to committees 140 Subdivision 3 - Matters affecting council and committee meetings 5.19. Quorum for meetings 141 5.20. Decisions of councils and committees 141 5.21. Voting 141 5.22. Minutes of council and committee meetings 142 5.23. Meetings generally open to the public 142 5.24. Question time for the public 144 5.25. Regulations about council and committee meetings and committees 144 Subdivision 4 - Electors' meetings 5.26. Term used in this Subdivision 145 5.27. Electors' general meetings 146 5.28. Electors' special meetings 146 5.29. Convening electors' meetings 146 5.30. Who presides at electors' meetings 147 5.31. Procedure for electors' meetings 147 5.32. Minutes of electors' meetings 147 5.33. Decisions made at electors' meetings 148 Division 3 - Acting for the mayor or president 5.34. When deputy mayors and deputy presidents can act 148 5.35. Who acts if no mayor, president or deputy 148 Division 4 - Local government employees 5.36. Local government employees 149 5.37. Senior employees 150 5.38. Annual review of certain employees' performances 151 5.39. Contracts for CEO's and senior employees 151 5.40. Principles affecting employment by local governments 153 5.41. Functions of CEO 153 5.42. Delegation of some powers and duties to CEO 154 5.43. Limits on delegations to CEO's 154 5.44. CEO may delegate powers and duties to other employees 155 5.45. Other matters relevant to delegations under this Division 156 5.46. Register of, and records relevant to, delegations to CEO's and employees 156 5.47. Superannuation regulations 157 5.48. Long service benefits for employees and employees of local government associations 157 5.49. Workers' compensation arrangement 157 5.50. Payments to employees in addition to contract or award 158 5.51. Employee who nominates for election to council to take leave 159 Division 5 - Annual reports and planning 5.53. Annual reports 160 5.54. Acceptance of annual reports 161 5.55. Notice of annual reports 161 5.56. Planning for the future 161 Division 6 - Disclosure of financial interests Subdivision 1 - Disclosure of financial interests in matters affecting local government decisions 5.59. Terms used in this Subdivision 162 5.60. When a person has an "interest" 162 5.60A. Financial interest 162 5.60B. Proximity interest 163 5.61. Indirect financial interests 163 5.62. Closely associated persons 164 5.63. Some interests need not be disclosed 165 5.65. Members' interests in matters to be discussed at meetings to be disclosed 167 5.66. Meeting to be informed of disclosures 168 5.67. Disclosing members not to participate in meetings 168 5.68. Councils and committees may allow members disclosing interests to participate etc. in meetings 169 5.69. Minister may allow members disclosing interests to participate etc. in meetings 170 5.69A. Minister may exempt committee members from disclosure requirements 170 5.70. Employees to disclose interests relating to advice or reports 171 5.71. Employees to disclose interests relating to delegated functions 172 5.72. Defence to prosecution 172 5.73. Disclosures to be minuted 172 Subdivision 2 - Disclosure of financial interests in returns 5.74. Terms used in this Subdivision 172 5.75. Primary returns 175 5.76. Annual returns 175 5.77. Acknowledging receipt of returns 176 5.78. Information to be disclosed in returns 176 5.79. Real property 176 5.80. Source of income 177 5.81. Trusts 178 5.82. Gifts 179 5.83. Contributions to travel 180 5.84. Interests and positions in corporations 181 5.85. Debts 182 5.86. Dispositions of property 183 5.87. Discretionary disclosures generally 184 Subdivision 3 - General 5.88. Register of financial interests 185 5.89. Offence to give false or misleading information 185 5.90. Offence to publish information in certain cases 186 Division 7 - Access to information 5.91. Interpretation 186 5.92. Access to information by council, committee members 186 5.93. Improper use of information 187 5.94. Public can inspect certain local government information 187 5.95. Limits on right to inspect local government information 189 5.96. Copies of information to be available 191 5.97. Freedom of Information Act 1992 not affected 191 Division 8 - Local government payments and gifts to its members 5.98. Fees etc. for council members 192 5.98A. Allowance for deputy mayor or deputy president 193 5.99. Annual fee for council members in lieu of fees for attending meetings 194 5.99A. Allowances for council members in lieu of reimbursement of expenses 194 5.100. Payments for certain committee members 195 5.101. Payments for employee committee members 195 5.101A. Regulations about payment of expenses 195 5.102. Expense may be funded before actually incurred 195 Division 9 - Conduct of certain officials 5.102A. Terms used in this Division 196 5.103. Codes of conduct 196 5.104. Other regulations about conduct of council members 197 5.105. Breaches by council members 198 5.106. Deciding whether breach occurred 198 5.107. Complaining to complaints officer of minor breach 198 5.108. Departmental CEO may send complaint of minor breach to complaints officer 199 5.109. Complaint initiated by complaints officer 200 5.110. Dealing with complaint of minor breach 201 5.111. Dealing with a recurrent breach 202 5.112. Allegation of recurrent breach 203 5.113. Punishment for recurrent breach 204 5.114. Making complaint of serious breach 204 5.115. Complaints officer to send complaint of serious breach to Departmental CEO 204 5.116. Allegation by Departmental CEO of serious breach 205 5.117. Punishment for serious breach 206 5.118. Carrying out orders 208 5.119. State Administrative Tribunal's enforcement powers 208 5.120. Complaints officer 208 5.121. Register of certain complaints of minor breaches 209 5.122. Standards panels 209 5.123. Confidentiality 209 5.124. Giving false or misleading information 210 5.125. Review of certain decisions 211 Part 6 - Financial management Division 1 - Introduction 6.1. Terms used in this Part 212 Division 2 - Annual budget 6.2. Local government to prepare annual budget 213 6.3. Budget for other circumstances 214 Division 3 - Reporting on activities and finance 6.4. Financial report 215 Division 4 - General financial provisions 6.5. Accounts and records 215 6.6. Funds to be established 216 6.7. Municipal fund 216 6.8. Expenditure from municipal fund not included in annual budget 216 6.9. Trust fund 217 6.10. Financial management regulations 218 6.11. Reserve accounts 218 6.12. Power to defer, grant discounts, waive or write off debts 219 6.13. Interest on money owing to local governments 219 6.14. Power to invest 220 Division 5 - Financing local government activities Subdivision 1 - Introduction 6.15. Local government's ability to receive revenue and income 221 Subdivision 2 - Fees and charges 6.16. Imposition of fees and charges 222 6.17. Setting the level of fees and charges 223 6.18. Effect of other written laws 223 6.19. Local government to give notice of fees and charges 224 Subdivision 3 - Borrowings 6.20. Power to borrow 224 6.21. Restrictions on borrowing 225 6.22. Appointment of receivers 227 6.23. Powers of receivers 227 6.24. Application of money 228 Division 6 - Rates and service charges Subdivision 1 - Introduction and basis of rating 6.25. Terms used in this Division and Schedule 6.1 228 6.26. Rateable land 229 6.27. Multiple rating 231 6.28. Basis of rates 232 6.29. Valuation and rates on mining and petroleum interests 233 6.30. Valuation of and rates on certain land 234 6.31. Phasing in of certain valuations 235 Subdivision 2 - Categories of rates and service charges 6.32. Rates and service charges 235 6.33. Differential general rates 237 6.34. Limit on revenue or income from general rates 238 6.35. Minimum payment 238 6.36. Local government to give notice of certain rates 239 6.37. Specified area rates 240 6.38. Service charges 242 Subdivision 3 - Imposition of rates and service charges 6.39. Rate record 243 6.40. Effect of amendment of rate record 244 6.41. Service of rate notice 245 Subdivision 4 - Payment of rates and service charges 6.42. Term used in s. 6.43, 6.44 and 6.52(1) 246 6.43. Rates and service charges are a charge on land 246 6.44. Liability for rates or service charges 247 6.45. Options for payment of rates or service charges 247 6.46. Discounts 248 6.47. Concessions 248 6.48. Regulation of grant of discounts and concessions 248 6.49. Agreement as to payment of rates and service charges 249 6.50. Rates or service charges due and payable 249 6.51. Accrual of interest on overdue rates or service charges 249 6.52. Rates and service charges may be apportioned 250 6.53. Land becoming or ceasing to be rateable land 251 Subdivision 5 - Recovery of unpaid rates and service charges 6.54. Term used in s. 6.55, 6.60 and 6.62 251 6.55. Recovery of rates and service charges 252 6.56. Rates or service charges recoverable in court 252 6.57. Non-compliance with procedure in Act not to prevent recovery of rate or service charge 252 6.58. Defence in special cases 253 6.59. Question of title to land not to affect jurisdiction 253 6.60. Local government may require lessee to pay rent 253 6.61. Requirement to give name of person liable 254 6.62. Application of money paid for rates and service charges 255 Subdivision 6 - Actions against land where rates or service charges unpaid 6.63. Term used in this Subdivision 255 6.64. Actions to be taken 255 6.65. Power to lease - procedure 256 6.66. Effect of lease 256 6.67. Release of property after payment of arrears 257 6.68. Exercise of power to sell land 257 6.69. Right to pay rates, service charges and costs, and stay proceedings 258 6.70. Effect of changes in boundaries of local government area 259 6.71. Power to transfer land to Crown or to local government 259 6.72. Title to land sold or transferred 260 6.73. Discharge of liability on sale of land 260 6.74. Power to have land revested in the Crown if rates in arrears 3 years 261 6.75. Land to be vested in the local government 261 Subdivision 7 - Objections and review 6.76. Grounds of objection 262 6.77. Review of decision of local government on objection 263 6.78. Review of decision to refusal to extend time for objection 263 6.79. New matters raised on review 264 6.79B. Written reasons for certain determinations to be given and published 264 6.80. Objections and reviews against valuations 264 6.81. Objection not to affect liability to pay rates or service charges 265 6.82. General review of imposition of rate or service charge 265 Part 7 - Audit Division 1 - Introduction 7.1. Terms used in this Part 266 Division 1A - Audit committee 7.1A. Audit committee 267 7.1B. Delegation of some powers and duties to audit committees 267 7.1C. Decisions of audit committees 268 Division 2 - Appointment of auditors 7.2. Audit 268 7.3. Appointment of auditors 268 7.4. Disqualified person not to be auditor 268 7.5. Approval of auditors 269 7.6. Term of office of auditor 269 7.7. Departmental CEO may appoint auditor 270 7.8. Terms of appointment of auditors 271 Division 3 - Conduct of audit 7.9. Audit to be conducted 271 7.10. Powers of the auditor 272 7.11. Power to demand production of books etc. 273 7.12. Employees and financial institutions to furnish particulars of money received 273 Division 4 - General 7.12A. Duties of local government with respect to audits 273 7.13. Regulations as to audits 274 Part 8 - Scrutiny of the affairs of local governments Division 1 - Inquiries by the Minister or an authorised person 8.1. Terms used in this Division 277 8.2. Minister or Departmental CEO may require information 277 8.3. Inquiries by, or authorised by, the Departmental CEO 278 8.4. Scope and duration of an authorisation 278 8.5. Powers of an authorised person 279 8.6. Power to enter property 280 8.7. Notice of entry 280 8.8. Entry under warrant 281 8.9. Exercise of powers 281 8.10. Protection from liability 282 8.11. Failure to comply with directions 282 8.12. Referral to other authorities 282 8.13. Authorised person's report 282 8.14. Copy to be given to the local government 283 8.15. Minister can take action to ensure that recommendations are put into effect 283 8.15A. Local government may have to meet inquiry costs 284 Division 2 - Inquiries by Inquiry Panels 8.16. Minister may institute an inquiry 284 8.17. Scope and duration of inquiry 284 8.18. Local government to be informed 285 8.19. Suspension of council while inquiry is held 285 8.20. Powers of Inquiry Panel 285 8.21. Referral to other authorities 286 8.22. Report of Inquiry Panel 286 8.23. Copies to be given to the local government and made available to the public 287 8.24. Minister to decide what action to take on Inquiry Panel's report 287 8.25. Dismissal of council by Governor 288 8.26. Suspension of council if Minister's order not complied with 288 8.27. Local government may have to meet inquiry costs 288 Division 3 - General provisions about suspension and dismissal of councils 8.28. Period of suspension: reinstatement of council 289 8.29. Effect of suspension of council 289 8.30. Appointment of commissioner while council is suspended 290 8.31. No dismissal of a council except on Inquiry Panel's recommendation 290 8.32. When dismissal of council takes effect 290 8.33. Appointment of commissioner on dismissal of council 290 8.34. Elections following dismissal of council 290 Division 4 - Misapplication of funds and property 8.35. Interpretation 291 8.36. Authorisation 291 8.37. Powers related to inquiries 292 8.38. Liability for misapplication of funds or property 292 8.39. Action to recover amounts misapplied 292 8.40. Notice to be given before action is taken 293 8.41. Decision whether or not to proceed with action 293 8.42. Power of court to order payment 293 8.43. Disqualification of a person who has misapplied funds or property 294 8.44. Evidence of authorisation 295 Part 9 - Miscellaneous provisions Division 1 - Objections and review 9.1. When this Division applies 296 9.2. Terms used in this Division 297 9.3. Rights of affected person extended to certain owners 297 9.4. Advice of objection and review rights 297 9.5. Objection may be lodged 298 9.6. Dealing with objection 298 9.7. Review 299 9.9. Suspension of effect of decision 299 Division 2 - Enforcement and legal proceedings Subdivision 1 - Miscellaneous provisions about enforcement 9.10. Appointment of authorised persons 300 9.11. Persons found committing breach of Act to give name on demand 301 9.12. Obstructing person who is acting under a written law 302 9.13. Onus of proof in vehicle offences may be shifted 302 9.13A. Notice to prevent continuing contravention 303 9.14. Penalty for offence when not otherwise specified 304 Subdivision 2 - Infringement notices 9.15. Terms used in this Subdivision 304 9.16. Giving a notice 305 9.17. Content of notice 305 9.18. Notice placing onus on vehicle owner 306 9.19. Extension of time 307 9.20. Withdrawal of notice 307 9.21. Benefit of paying modified penalty 307 9.22. Application of penalties collected 308 9.23. Restriction on appointment of authorised persons 308 Subdivision 3 - General provisions about legal proceedings 9.24. Commencing prosecutions 308 9.25. Time limit for prosecutions 309 9.26. Prosecuting accused whose name unknown 309 9.27. Civil remedy not affected by proceedings for offence 309 9.28. Interests of the public 309 9.29. Representing local government in court 310 Subdivision 4 - Evidence in legal proceedings 9.30. When this Subdivision applies 311 9.31. Terms used in this Subdivision 311 9.32. Evidence Act 1906 not excluded 311 9.33. Presumptions about certificates 311 9.34. Evidence of local laws 311 9.35. Evidence of text adopted by local laws 312 9.36. Using Gazette notice as evidence 312 9.37. Using meeting minutes as evidence 312 9.38. Evidence of documents coming from a local government 313 9.39. Proving a document given to another party 313 9.40. Using copy of rate record as evidence 313 9.41. Proving ownership, occupancy, and other things by certificate 314 9.42. Person may be alleged to be owner or occupier of land 315 9.43. Certificate of returning officer about election 315 9.44. Spouses and de facto partners presumed to be living with one another 315 9.45. Evidence of authorisation or approval 315 9.46. Things may be alleged to be property of local government 316 9.47. Proof of certain matters not required 317 9.48. Evidence of thoroughfare 317 Division 3 - Documents 9.49A. Execution of documents 318 9.49B. Contract formalities 319 9.49. Documents, how authenticated 319 9.50. Giving documents to persons, generally 320 9.51. Giving documents to local government 320 9.52. Giving documents in difficult cases 320 9.53. Other provisions about giving documents 321 9.54. Defects in documents 321 9.55. Effect of document on persons deriving title 321 Division 4 - Protection from liability 9.56. Certain persons protected from liability for wrongdoing 322 9.57. Local government protected from certain liability 323 Division 5 - Associations of local government 9.58. Constitution of associations of local government 323 Division 6 - Regulations, directions and orders 9.59. General regulations 324 9.60. Regulations that operate as local laws 325 9.61. Provisions about regulations 325 9.62. Governor may give directions as a consequence of making an order 326 9.63. Minister may give directions to resolve disputes between local governments 326 9.64. Governor may rectify omissions and irregularities 327 9.65. Orders made by the Governor or Minister 327 Division 7 - Other miscellaneous provisions 9.66. Delegation by Minister 328 9.67. Delegation by Departmental CEO 328 9.68. Local government to be notified of disposal of land 328 9.69. Land descriptions 329 9.69A. Notification under Corruption and Crime Commission Act 2003 330 Division 8 - Amendments to 1960 Act and transitional provisions 9.71. Transitional provisions 330 Schedule 2.1 - Provisions about creating, changing the boundaries of, and abolishing districts 1. Terms used in this Schedule 332 2. Making a proposal 332 3. Dealing with proposals 333 4. Notice of inquiry 334 5. Conduct of inquiry 334 6. Recommendation by Advisory Board 335 7. Minister may require a poll of electors 336 8. Electors may demand a poll on a recommended amalgamation 336 9. Procedure for holding poll 336 10. Minister may accept or reject recommendation 337 10A. Recommendations regarding names, wards and representation 337 11. Transitional arrangements for orders about districts 338 Schedule 2.2 - Provisions about names, wards and representation 1. Terms used in this Schedule 340 2. Advisory Board to make recommendations relating to new district 340 3. Who may make submissions about ward changes etc. 340 4. Dealing with submissions 341 5. Local government may propose ward changes or make minor proposals 341 6. Local government with wards to review periodically 342 7. Reviews 343 8. Matters to be considered in respect of wards 343 9. Proposal by local government 343 10. Recommendation by Advisory Board 344 11. Inquiry by Advisory Board 345 12. Minister may accept or reject recommendation 345 Schedule 2.3 - When and how mayors, presidents, deputy mayors and deputy presidents are elected by the council Division 1 - Mayors and presidents 1. Terms used in this Division 346 2. When the council elects the mayor or president 346 3. CEO to preside 346 4. How the mayor or president is elected 346 5. Votes may be cast a second time 347 Division 2 - Deputy mayors and deputy presidents 6. Terms used in this Division 348 7. When the council elects the deputy mayor or deputy president 348 8. How the deputy mayor or deputy president is elected 348 9. Votes may be cast a second time 349 Division 3 - Validity of elections 10. Meaning of "election" 350 11. Complaints about the validity of an election 350 12. Complaints to go to a Court of Disputed Returns 350 13. No appeal 351 14. Certain defects do not affect an election 351 15. Regulations about retention and availability of electoral papers 351 Schedule 2.4 - Provisions about commissioners 1. Eligibility for appointment 352 2. Tenure 352 3. Vacancies 352 4. Vacancies may be filled 352 5. Payment of commissioners 353 6. Procedure at meetings of joint commissioners 353 Schedule 2.5 - Provisions about the Local Government Advisory Board 1. Term used in this Schedule 354 2. Membership of Advisory Board 354 3. Deputies 354 4. Submission of lists 355 5. Term of office 355 6. Vacation of office 356 7. Meetings 356 8. Remuneration and allowances 357 9. Protection 357 10. Staff 357 11. Delegation 358 12. Powers of inquiry 359 13. Investigations 359 14. Annual report 360 15. Offences 360 Schedule 3.1 - Powers under notices to owners or occupiers of land Division 1 - Things a notice may require to be done Division 2 - Provisions contraventions of which may lead to a notice requiring things to be done Schedule 3.2 - Particular things local governments can do on land even though it is not local government property Schedule 4.1 - How to count votes and ascertain the result of an election Schedule 4.2 - Order of retirement from office of councillors Schedule 5.1 - Provisions about standards panels 1. Term used in this Schedule 368 2. Membership of standards panel 368 3. Deputies 368 4. Submission of lists 369 5. Term of office 369 6. Vacation of office 369 7. Dissolution of standards panel 370 8. Meetings 370 9. Remuneration and allowances 371 10. Protection 371 11. Annual report 372 Schedule 6.1 - Provisions relating to the phasing in of valuations 1. Phasing in of certain valuations 373 2. Phasing in of rating based on gross rental values 374 Schedule 6.2 - Provisions relating to lease of land where rates or service charges unpaid 1. Form of lease 377 2. Application of rent received 377 Schedule 6.3 - Provisions relating to sale or transfer of land where rates or service charges unpaid 1. Conditions for exercise of power of sale of land 379 2. Advertisement for sale 380 3. Power of sale 381 4. Power of local government to transfer or convey land 381 5. Application of purchase money 382 6. Receipt of the local government a discharge 384 7. If sale not completed within 12 months after commencement, proceedings lapse 384 8. Transfer of land to Crown or local government under section 6.71 384 Schedule 8.1 - Provisions about Inquiry Panels 1. Constitution of an Inquiry Panel 386 2. Term of appointment 386 3. Procedures and remuneration 387 Schedule 9.1 - Certain matters for which Governor may make regulations 1. Parking for disabled 388 2. Disturbing local government land or anything on it 389 3. Obstructing or encroaching on public thoroughfare 389 4. Separating land from public thoroughfare 389 5. Gates across public thoroughfares 389 6. Dangerous excavation in or near public thoroughfare 389 7. Crossing from public thoroughfare to private land or private thoroughfare 390 8. Private works on, over, or under public places 390 9. Protection of watercourses, drains, tunnels and bridges 391 10. Protection of thoroughfares from water damage 391 11. Works required for supply of gas or water 391 12. Wind erosion and sand drifts 392 Schedule 9.3 - Transitional provisions Division 1 - Preliminary 1. Terms used in this Schedule 393 2. Interpretation Act 1984 applies 393 3. Construction of references in written laws 393 Division 2 - Continuation of constitutional arrangements, membership and appointments 4. Former districts continue as districts 394 5. Former municipalities continue as local governments 394 6. Former councils continue as previously constituted 395 7. Wards and representation 395 8. Former method of electing mayor or president continued 396 9. Commissioners continued 396 10. Regional councils continued 396 11. Local Government Associations continued 396 Division 3 - Electoral matters 12. Enrolment of certain electors may continue 397 13. Existing provisions continue for elections before 1997 ordinary elections 397 14. Transition from annual to biennial election system 398 14A. Transition to October elections 399 Division 4 - Administration 15. Employees 400 16. Superannuation schemes - transitional and savings 400 17. Long service benefits - transitional and savings 400 18. Committees continue until first ordinary elections 401 19. Delegations continue for up to a year 401 20. First annual report 401 21. First plan for principal activities 402 22. First code of conduct 402 23. First declaration by certain designated employees 402 24. Previous records to be kept by continuing authorities 402 Division 5 - Financial management and audit 25. Rateable land exemptions 402 26. Land declared to be exempt from the payment of rates 402 27. Basis of rates 403 28. Recovery of rates 403 29. Continuation of debentures issued 403 30. Reserve accounts 404 31. Borrowing - loan polls 404 32. Auditors' appointments 405 Division 6 - Former by-laws, uniform general by-laws and regulations 33. Former by-laws continued 405 34. First periodic review as a local law 406 35. Former uniform general by-laws continued 406 36. Former regulations continued 407 Division 7 - Miscellaneous 37. Townsites 407 38. Gates across thoroughfares in cities or towns 407 39. Deferments under Rates and Charges (Rebates and Deferments) Act 1992 407 40. Commercial enterprises 408 41. Evidence in proceedings under former provisions 408 Notes Compilation table 409 Provisions that have not come into operation 413 Western Australia Local Government Act 1995 An Act to provide for a system of local government in Western Australia, to amend the Local Government Act 1960 2 and for related purposes. Part 1 - Introductory matters What this Part is about This Part deals with some matters that are relevant to the Act generally. In particular - (a) section 1.2 provides for the commencement of the Act; (b) section 1.3 summarizes the main content of the Act and what it intends to achieve; (c) section 1.5 explains the legal status of italicized notes such as this; (d) section 1.6 states the position of the Crown; and (e) other provisions define some terms and concepts used in the Act. 1.1. Short title This Act may be cited as the Local Government Act 1995 1. 1.2. Commencement This Act comes into operation on 1 July 1996. 1.3. Content and intent (1) This Act provides for a system of local government by - (a) providing for the constitution of elected local governments in the State; (b) describing the functions of local governments; (c) providing for the conduct of elections and other polls; and (d) providing a framework for the administration and financial management of local governments and for the scrutiny of their affairs. (2) This Act is intended to result in - (a) better decision-making by local governments; (b) greater community participation in the decisions and affairs of local governments; (c) greater accountability of local governments to their communities; and (d) more efficient and effective local government. (3) In carrying out its functions a local government is to use its best endeavours to meet the needs of current and future generations through an integration of environmental protection, social advancement and economic prosperity. [Section 1.3 amended by No. 49 of 2004 s. 15.] 1.4. Terms used in this Act In this Act, unless the contrary intention appears - absolute majority - (a) in relation to a council, means a majority comprising enough of the members for the time being of the council for their number to be more than 50% of the number of offices (whether vacant or not) of member of the council; (b) in relation to any other body, means a majority comprising enough of the persons for the time being constituting the body for their number to be more than 50% of the number of offices (whether vacant or not) on the body; 75% majority, in relation to a council, means a majority comprising enough of the members for the time being of the council for their number to be at least 75% of the number of offices (whether vacant or not) of member of the council; Advisory Board means the Local Government Advisory Board established by section 2.44; auditor, in relation to a local government means a person for the time being appointed under Part 7 to be the auditor of the local government; CEO means the chief executive officer of a local government; commissioner means a commissioner appointed to a local government under sections 2.6(4), 2.36A(3), 2.37(4), 2.37A(1), 8.30 or 8.33; council means the council of a local government; councillor means a person who holds the office of councillor on a council (including a person who holds another office under section 2.17(2)(a) or (b) as well as the office of councillor); councillor mayor or president means a mayor or president elected by the council from amongst the councillors; Crown lands means lands of the Crown - (a) not granted or contracted to be granted in fee simple; or (b) not held or occupied - (i) under conditional terms of purchase; or (ii) with a right to acquire the fee simple; Crown lease means a lease from the Crown of Crown lands, or a licence or concession from the Crown for taking a profit of Crown lands, but does not include - (a) an instrument executed or issued pursuant to a contract or arrangement with the Crown by virtue of which land is held or occupied with a right, whether subject to compliance with conditions or otherwise, to acquire the fee simple; (b) a lease under the Housing Act 1980; and (c) an instrument by virtue of which lands are held or occupied subject to the payment of a peppercorn or nominal rental; Crown lessee means a person entitled under a Crown lease to an interest or a right in or over Crown lands; Department means the department of the Public Service assisting the Minister to administer this Act; Departmental CEO means the chief executive officer of the Department; district means an area of the State that is declared to be a district under section 2.1; election year means a year in which ordinary elections for local governments are required to be held; elector, in relation to a district or ward, means a person who is eligible to be enrolled to vote at elections for the district or ward; elector mayor or president means a mayor or president elected by electors of a district; Electoral Commissioner means the Electoral Commissioner appointed under the Electoral Act 1907; electoral requirements has the meaning given by section 4.1; employee means a person employed by a local government under section 5.36; extraordinary election has the meaning given by section 4.8; financial year means the period commencing on 1 July and ending on the next following 30 June; inaugural election has the meaning given by section 4.2; Inquiry Panel means an Inquiry Panel constituted under section 8.16; local government means a local government established under this Act; local government property means anything, whether land or not, that belongs to, or is vested in, or under the care, control or management of, the local government; local public notice has the meaning given by section 1.7; member, in relation to the council of a local government, means - (a) an elector mayor or president of the local government; or (b) a councillor on the council (including a councillor who holds another office under section 2.17(2)(a) or (b) as well as the office of councillor); metropolitan area has the same definition as "metropolitan region" in the Planning and Development Act 2005; municipal fund means the municipal fund established under section 6.6; occupier where used in relation to land means the person by whom or on whose behalf the land is actually occupied or, if there is no occupier, the person entitled to possession of the land, and includes a person in unauthorised occupation of Crown land and where under a licence or concession there is a right to take profit of Crown land specified in the licence or concession, means the person having that right; ordinary election has the meaning given by section 4.4; ordinary elections day in relation to a local government, means a day fixed by section 4.6 or under section 4.7(2) for holding the polls for ordinary elections for that local government (whether or not any polls are actually held); owner, where used in relation to land - (a) means a person who is in possession as - (i) the holder of an estate of freehold in possession in the land, including an estate or interest under a contract or an arrangement with the Crown or a person, by virtue of which contract or arrangement the land is held or occupied with a right to acquire by purchase or otherwise the fee simple; (ii) a Crown lessee or a lessee or tenant under a lease or tenancy agreement of the land which in the hands of the lessor is not rateable land under this Act, but which in the hands of the lessee or tenant is by reason of the lease or tenancy rateable land under this or another Act for the purposes of this Act; (iii) a mortgagee of the land; or (iv) a trustee, executor, administrator, attorney, or agent of a holder, lessee, tenant, or mortgagee, mentioned in this paragraph; (b) where there is not a person in possession, means the person who is entitled to possession of the land in any of the capacities mentioned in paragraph (a), except that of mortgagee; (c) where, under a licence or concession there is a right to take profit of Crown land specified in the licence or concession, means the person having that right; (d) where a person is lawfully entitled to occupy land which is vested in the Crown, and which has no other owner according to paragraph (a), (b), or (c), means the person so entitled; (e) means a person who - (i) under the Mining Act 1978, holds in respect of the land a mining tenement within the meaning given to that expression by that Act; (ii) in accordance with the Mining Act 1978 holds, occupies, uses, or enjoys in respect of the land a mining tenement within the meaning given to that expression by the Mining Act 1904 3; or (iii) under the Petroleum and Geothermal Energy Resources Act 1967 holds in respect of the land a permit, drilling reservation, lease or licence within the meaning given to each of those expressions by that Act; or (f) where a person is in the unauthorised occupation of Crown land, means the person so in occupation; prescribed means prescribed by regulations; Statewide public notice has the meaning given by section 1.8; thoroughfare means a road or other thoroughfare and includes structures or other things appurtenant to the thoroughfare that are within its limits, and nothing is prevented from being a thoroughfare only because it is not open at each end; WALGA means the Western Australian Local Government Association constituted under section 9.58; ward means one of the wards into which a district is divided under section 2.2. [Section 1.4 amended by No. 1 of 1998 s. 4 and 6(2); No. 64 of 1998 s. 4(2); No. 49 of 2004 s. 11 and 16(1); No. 38 of 2005 s. 15; No. 28 of 2006 s. 361; No. 35 of 2007 s. 99(2).] 1.5. Descriptions in italics not part of the law A description that is printed in italics at the beginning of a Part of this Act explaining what it is about is not part of the Act. 1.6. Crown not generally bound This Act does not bind the Crown except to the extent expressly stated in this Act. 1.7. Local public notice (1) Where under this Act local public notice of a matter is required to be given, a notice of the matter is to be - (a) published in a newspaper circulating generally throughout the district; (b) exhibited to the public on a notice board at the local government's offices; and (c) exhibited to the public on a notice board at every local government library in the district. (2) Unless expressly stated otherwise it is sufficient if the notice is - (a) published under subsection (1)(a) on at least one occasion; and (b) exhibited under subsection (1)(b) and (c) for a reasonable time, being not less than - (i) the time prescribed for the purposes of this paragraph; or (ii) if no time is prescribed, 7 days. [Section 1.7 amended by No. 64 of 1998 s. 18(3).] 1.8. Statewide public notice Where under this Act Statewide public notice of a matter is required to be given, section 1.7 applies except that the newspaper referred to in section 1.7(1)(a) is required to circulate generally throughout the State. 1.9. Decisions by absolute majority The footnote Absolute majority required, applying to a power conferred in this Act, means that - (a) if the power is conferred on a local government, it can only be exercised by or in accordance with, a decision of an absolute majority of the council; or (b) if the power is conferred on any other body, it can only be exercised by or in accordance with, a decision of an absolute majority of that body. 1.10. Decisions by special majority The footnote Special majority required applying to a power conferred in this Act on a local government, means that - (a) if there are more than 11 offices of member of the council, the power can only be exercised by, or in accordance with, a decision of a 75% majority of the council; or (b) if there are not more than 11 offices of member of the council, the power can only be exercised by, or in accordance with, a decision of an absolute majority of the council. Part 2 - Constitution of local government What this Part is about This Part deals with the constitutional framework of the system of elected local government in this State maintained as required by Part IIIB of the Constitution Act 1889. In particular it deals with - (a) the division of the State into districts and wards for local government purposes; (b) the creation of local governments; (c) the creation and membership of elected councils; (d) the qualifications of members of councils; and (e) the terms of office of members of councils and how their offices may become vacant; and (f) commissioners of local governments. Division 1 - Districts and wards 2.1. State divided into districts (1) The Governor, on the recommendation of the Minister, may make an order - (a) declaring an area of the State to be a district; (b) changing the boundaries of a district; (c) abolishing a district; or (d) as to a combination of any of those matters. (2) Schedule 2.1 (which deals with creating, changing the boundaries of, and abolishing districts) has effect. (3) The Minister can only make a recommendation under subsection (1) if the Advisory Board has recommended under Schedule 2.1 that the order in question should be made. 2.2. Districts may be divided into wards (1) The Governor, on the recommendation of the Minister, may make an order - (a) dividing a district into wards; (b) creating new wards in a district that is already divided into wards; (c) changing the boundaries of a ward; (d) abolishing any or all of the wards into which a district is divided; or (e) as to a combination of any of those matters. (2) For the purposes of this Act - (a) an order that divides a district into wards is to be regarded as establishing a ward system for the district; and (b) an order that abolishes all of the wards into which a district is divided and does not create new wards, is to be regarded as discontinuing the ward system for the district. (3) Schedule 2.2 (which deals with wards and representation) has effect. (4) The Minister can only make a recommendation under subsection (1) if the Advisory Board has recommended under Schedule 2.2 that the order in question should be made. 2.3. Names of districts and wards (1) An order under section 2.1 designating an area of the State to be a district is to include an order naming the district. (2) An order under section 2.2 establishing a ward system for a district is to include an order naming the wards. (3) If a local government proposes under Schedule 2.2 that an order be made changing the name of the district or a ward, the Minister may recommend to the Governor that the order be made, and the Governor may make the order accordingly. (4) The Minister can only make a recommendation under subsection (3) if the Advisory Board has recommended under Schedule 2.2 that the order in question should be made. 2.4. District to be a city, town or shire (1) An order under section 2.1 declaring an area of the State to be a district is to include an order designating the district a city, town or shire. (2) The Governor may, by order, change the designation of a district. (3) A district can only be designated a city if - (a) the district is in the metropolitan area and has more than 30 000 inhabitants more than half of whom live in an urban area; or (b) the district, if it is not in the metropolitan area, has more than 20 000 inhabitants more than half of whom live in an urban area. (4) A district can only be designated a town if more than half of its inhabitants live in an urban area. (5) A district that is not designated a city or a town is to be designated a shire. (6) The number of inhabitants of a district at a particular time is to be taken as that established by the Government Statistician appointed under the Statistics Act 1907 according to the information then available to that person. (7) Despite any change in the number or distribution of a district's inhabitants, the designation of the district continues to apply until it is changed under this section. Division 2 - Local governments and councils of local governments 2.5. Local governments created as bodies corporate (1) When an area of the State becomes a district, a local government is established for the district. (2) The local government is a body corporate with perpetual succession and a common seal. (3) The local government has the legal capacity of a natural person. (4) The corporate name of the local government is the combination of the district's designation and name. Example: City of (name of district) (5) If the district's name incorporates its designation, the designation is not repeated in the corporate name of the local government. Example: district's name : Albany (Town) corporate name : Town of Albany (6) Proceedings may be taken by or against the local government in its corporate name. 2.6. Local governments to be run by elected councils (1) Each local government is to have an elected council as its governing body. (2) The offices on the council of the local government of a city or town are those of the mayor, the deputy mayor and the councillors. (3) The offices on the council of the local government of a shire are those of the president, the deputy president and the councillors. (4) The Governor may, by order, appoint a person to be the commissioner of a local government until the offices of members of the council are filled for the first time and the council holds its first meeting. 2.7. The role of the council (1) The council - (a) governs the local government's affairs; and (b) is responsible for the performance of the local government's functions. (2) Without limiting subsection (1), the council is to - (a) oversee the allocation of the local government's finances and resources; and (b) determine the local government's policies. [Section 2.7 amended by No. 17 of 2009 s. 4.] 2.8. The role of the mayor or president (1) The mayor or president - (a) presides at meetings in accordance with this Act; (b) provides leadership and guidance to the community in the district; (c) carries out civic and ceremonial duties on behalf of the local government; (d) speaks on behalf of the local government; (e) performs such other functions as are given to the mayor or president by this Act or any other written law; and (f) liaises with the CEO on the local government's affairs and the performance of its functions. (2) Section 2.10 applies to a councillor who is also the mayor or president and extends to a mayor or president who is not a councillor. 2.9. The role of the deputy mayor or deputy president The deputy mayor or deputy president performs the functions of the mayor or president when authorised to do so under section 5.34. 2.10. The role of councillors A councillor - (a) represents the interests of electors, ratepayers and residents of the district; (b) provides leadership and guidance to the community in the district; (c) facilitates communication between the community and the council; (d) participates in the local government's decision-making processes at council and committee meetings; and (e) performs such other functions as are given to a councillor by this Act or any other written law. Division 3 - How offices on the council are filled 2.11. Alternative methods of filling the office of mayor or president (1) When an order is made under section 2.1 declaring an area of the State to be a district, the Governor is, by order, to specify whether the first mayor or president of the local government is to be - (a) elected by electors of the district under Part 4; or (b) elected by the council from amongst the councillors under Schedule 2.3, Division 1. (2) A local government may change* the method of filling the office of mayor or president used by the local government from the election by the council method to the election by the electors method. * Special majority required. (3) A local government may exercise the power conferred by subsection (2) whether or not a proposal has been made under section 2.12. (4) The method of filling the office of mayor or president used by a local government is changed from the election by the electors method to the election by the council method if the result of a poll declared under section 2.12A(4) is that a majority of electors of the district who voted at the poll voted in favour of the change. [Section 2.11 amended by No. 49 of 2004 s. 17(1) and (2).] 2.12. Electors may propose change of method (1) A proposal to change the method of filling the office of mayor or president used by a local government to the other method mentioned in section 2.11(1)(a) or (b) may be made to the local government by electors of the district who - (a) are at least 250 in number; or (b) are at least 10% of the total number of electors of the district. (2) The proposal is to comply with any regulations about such proposals. (3) If the proposal is to change the method of filling the office of mayor or president from the election by the council method to the election by the electors method, consideration is to be given to the proposal by such means as the council thinks fit after which a motion to change the method of filling the office of mayor or president is to be put to the council for decision under section 2.11(2). [Section 2.12 amended by No. 49 of 2004 s. 17(3).] 2.12A. Procedure to change method to election by council (1) If - (a) electors of the district, acting under section 2.12(1), propose; or (b) the council, by motion passed by it, proposes, to change the method of filling the office of mayor or president of the local government from the election by the electors method to the election by the council method, the local government is to - (c) give local public notice of the proposal stating that submissions about the proposal may be made to the local government before a day to be specified in the notice, being a day that is not less than 6 weeks after the notice is given; and (d) consider or reconsider the proposal in view of any submissions received. (2) Subject to section 2.13(3), if the local government decides to proceed with the proposal, there is to be a poll of the electors of the district on the proposal and - (a) the Advisory Board is to - (i) determine the question to be voted on by the electors of the district; and (ii) prepare a summary of the case for each way of voting on the question; (b) the Electoral Commissioner is to - (i) make the summary available to the electors before the poll is conducted; (ii) be responsible for the conduct of the poll; and (iii) appoint a person to be the returning officer of the local government for the poll; and (c) the local government is to meet the expenses of the Electoral Commissioner in connection with the poll to the extent required by regulations. (3) The returning officer is to conduct the poll for and under the direction of the Electoral Commissioner. (4) As soon as is practicable after the result of the poll is known the returning officer is to declare and give notice of the result in accordance with regulations. (5) A poll referred to in this section is not to be held more than once in every 4 years in a district, even if a proposal has been made by the electors under section 2.12. [Section 2.12A inserted by No. 49 of 2004 s. 17(4).] 2.13. When a new method takes effect (1) A decision under section 2.11(2) to change to the election by electors method has effect in relation to the filling of the office of mayor or president at the next ordinary elections of the local government held after the decision is made and from then on until a change under section 2.11(4) to the election by the council method takes effect. (2) A change under section 2.11(4) to the election by the council method has effect in relation to the filling of the office of mayor or president at the first meeting of the council after the ordinary elections of the local government in the year in which the term of office of the incumbent mayor or president ends and from then on until a decision under section 2.11(2) to change to the election by electors method takes effect. (3) A decision under section 2.11(2) has no effect if it is made during, and a decision under section 2.12A(2) has no effect unless a poll resulting from it is held before, the period beginning on the 80th day before, and ending on, the ordinary election day in the year in which the term of office of the incumbent mayor or president ends. [Section 2.13 amended by No. 64 of 1998 s. 19(2); No. 49 of 2004 s. 17(5)-(7).] 2.14. Extension of term in certain cases If the method of filling the office of mayor or president of a local government is changed from election by electors to election by the council then, despite the Table to section 2.28, a mayor or president elected by the electors may continue to hold that office after the end of his or her term until a mayor or president is elected by the council. 2.15. Filling the office of deputy mayor or deputy president The deputy mayor or deputy president is to be elected by the council under Schedule 2.3, Division 2. [Section 2.15 amended by No. 49 of 2004 s. 18.] 2.16. Filling the offices of the councillors (1) If a district is not divided into wards the councillors are to be elected by electors of the district under Part 4. (2) If a district is divided into wards the councillors for a ward are to be elected by electors of that ward under Part 4. Division 4 - Membership and size of the council 2.17. The members of council (1) If the method of filling the office of mayor or president is election by electors, the council is to consist of - (a) the mayor or president; and (b) not less than 5 nor more than 14 councillors one of whom is to hold the office of deputy mayor or deputy president in conjunction with his or her office as a councillor. (2) If the method of filling the office of mayor or president is election by the council, the council is to consist of not less than 6 nor more than 15 councillors of whom - (a) one is to hold the office of mayor or president as well as the office of councillor; and (b) another is to hold the office of deputy mayor or deputy president as well as the office of councillor. (3) If the council has 15 councillors and a decision is made under section 2.11(2) to change the method of filling the office of mayor or president to election by electors, the council may, despite subsection (1)(b), continue to have 15 councillors after the decision has effect. 2.18. Fixing and changing the number of councillors (1) When a local government is newly established the Governor, by order made on the recommendation of the Minister, is to - (a) specify the number of offices of councillor on the council of the local government; and (b) if the district is to have a ward system, specify the numbers of offices of councillor for the wards. (2) When an order is made under section 2.2 discontinuing a ward system for a district, the number of offices of councillor on the council remains unchanged unless the order specifies otherwise. (3) The Governor, on the recommendation of the Minister, may make an order - (a) changing the number of offices of councillor on a council; (b) specifying or changing the number of offices of councillor for a ward; or (c) as to a combination of those matters. (4) The Minister can only make a recommendation under subsection (1) or (3) if the Advisory Board has recommended under Schedule 2.2 that the order in question should be made. Division 5 - Qualifications for holding office on the council 2.19. Qualifications for election to council (1) A person is qualified to be elected as a member of a council if the person - (a) is of or over the age of 18 years; (b) is an elector of the district; (c) is not disqualified from being elected as a member under section 2.20; (d) is not disqualified for membership of the council under section 2.21, 2.22, 2.23 or 2.24; and (e) is not disqualified by an order under section 5.113, 5.117 or 5.119 from holding office as a member of a council. (2) A person is not qualified under subsection (1)(b) if he or she is only eligible for enrolment under section 4.30(1)(a) and (b) - (a) as the nominee of a body corporate under section 4.31; or (b) because of Schedule 9.3, clause 12(2). (3) A person who is qualified under subsection (1) can be elected as a councillor for a ward whether or not he or she is an elector of that ward. [Section 2.19 amended by No. 1 of 1998 s. 5(1); No. 1 of 2007 s. 4.] 2.20. Members of parliament disqualified for election (1) A person is disqualified from being elected as a member of a council if the person is a member of a parliament. (2) In this section - member of a parliament means - (a) a member of the Legislative Assembly; (b) a member of the Legislative Council, including a person who has been elected as a member of that House but is not yet entitled to sit or vote in that House because of section 8(2) of the Constitution Acts Amendment Act 1899; (c) a member of the House of Representatives; or (d) a senator, including a person who has been elected as a senator but whose term of service as a senator has not yet begun. 2.21. Disqualification because of insolvency A person is disqualified for membership of a council if the person is an insolvent under administration within the meaning of the Corporations Act 2001 of the Commonwealth. [Section 2.21 amended by No. 10 of 2001 s. 121.] 2.22. Disqualification because of convictions (1) A person is disqualified for membership of a council if the person - (a) has been convicted of a crime and is in prison serving a sentence for that crime; or (b) has been convicted in the preceding 5 years of a serious local government offence. (2) A court that has sentenced a person for a serious local government offence may make an order - (a) waiving the application of subsection (1)(b); or (b) reducing the period of 5 years mentioned in subsection (1)(b), and the court's order has effect in accordance with its terms. (3) In this section - former provisions means the Local Government Act 1960 4 as in force before the commencement of this Act; serious local government offence means an offence against this Act or the former provisions for which an offender - (a) could be sentenced to imprisonment for a term of, or exceeding the period prescribed for the purposes of this section; or (b) could be sentenced to pay a fine of or exceeding the amount prescribed for the purposes of this section. 2.23. Disqualification because of membership of another council A person is disqualified for membership of a council if the person is a member of another council. 2.24. Disqualification because of misapplication of funds or property A person is disqualified for membership of a council if section 8.43(1), or an order under section 8.43(3), applies to the person. 2.25. Disqualification for failure to attend meetings (1) A council may, by resolution, grant leave of absence, to a member. (2) Leave is not to be granted to a member in respect of more than 6 consecutive ordinary meetings of the council without the approval of the Minister, unless all of the meetings are within a period of 3 months. (3A) Leave is not to be granted in respect of - (a) a meeting that has concluded; or (b) the part of a meeting before the granting of leave. (3) The granting of the leave, or refusal to grant the leave and reasons for that refusal, is to be recorded in the minutes of the meeting. (4) A member who is absent, without obtaining leave of the council, throughout 3 consecutive ordinary meetings of the council is disqualified from continuing his or her membership of the council, unless all of the meetings are within a 2 month period. (5A) If a council holds 3 or more ordinary meetings within a 2 month period, and a member is absent without leave throughout each of those meetings, the member is disqualified if he or she is absent without leave throughout the ordinary meeting of the council immediately following the end of that period. (5) The non-attendance of a member at the time and place appointed for an ordinary meeting of the council does not constitute absence from an ordinary meeting of the council - (a) if no meeting of the council at which a quorum is present is actually held on that day; or (b) if the non-attendance occurs - (i) while the member has ceased to act as a member after written notice has been given to the member under section 2.27(3) and before written notice has been given to the member under section 2.27(5); or (ii) while proceedings in connection with the disqualification of the member have been commenced and are pending; or (iiia) while the member is suspended under section 5.117(1)(a)(iv); or (iii) while the election of the member is disputed and proceedings relating to the disputed election have been commenced and are pending. (6) A member who before the commencement of the Local Government Amendment Act 2009 section 5 was granted leave during an ordinary meeting of the council from which the member was absent is to be taken to have first obtained leave for the remainder of that meeting. [Section 2.25 amended by No. 49 of 2004 s. 19(1); No. 17 of 2009 s. 5.] 2.26. Election to council terminates employment with local government If a person who is employed by a local government is declared to be elected as a member of the local government's council then, by operation of this section, the person's employment with the local government ends when the person begins his or her term of office as a member. 2.27. Procedure to determine qualification to retain membership of council (1) In this section - disqualified, in relation to a member of a council, means - (a) not qualified under section 2.19(1)(b) to be elected as a member of the council; or (b) disqualified for membership of the council under section 2.21, 2.22, 2.23 or 2.24; or (c) disqualified from continuing his or her membership of the council under section 2.25. (2) A member who considers that he or she is disqualified is to advise the CEO in writing without delay. (3) If the CEO has reason (other than through receiving a notice under subsection (2)) to believe that a member of a council is disqualified the CEO is to give the member a written notice without delay indicating the reasons why the CEO believes the member to be disqualified. (4) The CEO's notice under subsection (3) has to inform the member - (a) that if the member believes that he or she is not disqualified, he or she may advise the CEO in writing within 14 days from the date of the service of the notice; and (b) that if the member accepts that he or she is disqualified in accordance with the terms of the notice, he or she is to advise the CEO in writing. (5) If, within 28 days from the date of service of the CEO's notice under subsection (3), the member satisfies the CEO that the member is not disqualified, the CEO is to give the member a written notice to that effect. (6) Unless, within 28 days from the date of service of the CEO's notice under subsection (3), the member - (a) satisfies the CEO that the member is not disqualified; or (b) applies to the State Administrative Tribunal asking for a declaration as to whether or not the member is disqualified and gives a copy of the application to the CEO, the member is taken to have been disqualified for the reasons indicated in the CEO's notice. (7A) If subsection (6) applies to a member the CEO is to give the member a written notice to that effect. (7) The CEO or any other person may, at any time, apply to the State Administrative Tribunal for a declaration as to whether or not a member of a council is disqualified. [(8) deleted] (9) A person who acts as a member of a council while disqualified commits an offence. Penalty: $5 000 or imprisonment for one year. (10) This section as in force immediately before the commencement of the Local Government Amendment Act 2009 section 6 applies to and in respect of a notice given under section 2.27(3) before that commencement. [Section 2.27 amended by No. 55 of 2004 s. 685; No. 17 of 2009 s. 6.] Division 6 - Terms of office on the council and vacation of office 2.28. Days on which terms begin and end (1) The days on which the term of a person holding an office on a council begins and ends depend on the nature of the office and the circumstances in which the person is elected to hold the office. (2) The days are to be determined in accordance with the Table to this section. Table to section 2.28 Terms of office |Item |Kind of |How elected |Term begins |Term ends | | |office | | | | |1. |Elector |Elected at an |On the day |On the | | |mayor or|inaugural |after - |third | | |presiden|election, or a|(a) the day |Saturday in| | |t |section 4.11, |on which the |October in | | | |4.12, 4.13 or |poll is held;|the fourth | | | |4.14 election,|or |year after | | | |in an election|(b) if no |the year in| | | |year |poll is held,|which the | | | | |the day on |term began | | | | |which a poll |(but note | | | | |would have |sections 2.| | | | |been held |14 | | | | | |and 2.30) | |2. |Elector |Elected at an |On the day |On the | | |mayor or|inaugural |after - |third | | |presiden|election, or a|(a) the day |Saturday in| | |t |section 4.11, |on which the |October in | | | |4.12, 4.13 or |poll is held;|the third | | | |4.14 election,|or |year after | | | |in a year |(b) if no |the year in| | | |other than an |poll is held,|which the | | | |election year |the day on |term began | | | | |which a poll |(but note | | | | |would have |sections 2.| | | | |been held |14 | | | | | |and 2.30) | |3. |Councill|Elected at an |On the day |On the day | | |or |inaugural |after - |determined | | | |election or |(a) the day |by the | | | |any other |on which the |returning | | | |election not |poll is held;|officer | | | |dealt with in |or |under | | | |item 4, 5, 6, |(b) if no |section 4.7| | | |8 or 9 |poll is held,|8 (but note| | | | |the day on |section 2.3| | | | |which a poll |0) | | | | |would have | | | | | |been held | | |4. |Elector |Elected at an |On the day |On the | | |mayor or|ordinary |after the |third | | |presiden|election |ordinary |Saturday in| | |t | |elections day|October in | | |OR | | |the fourth | | |councill| | |year after | | |or | | |the year in| | | | | |which the | | | | | |term began | | | | | |(but note | | | | | |sections 2.| | | | | |14 | | | | | |and 2.30) | |5. |Elector |Elected at an |On the day |On the day | | |mayor or|extraordinary |after - |on which | | |presiden|election not |(a) the day |the term of| | |t |dealt with in |on which the |office of | | |OR |item 6, 7 or 8|poll is held;|the person | | |councill| |or |whose | | |or | |(b) if no |office has | | | | |poll is held,|become | | | | |the day of |vacant | | | | |nomination |would have | | | | | |ended if | | | | | |the vacancy| | | | | |had not | | | | | |occurred | |6. |Elector |Elected at an |On the day |On the day | | |mayor or|extraordinary |after - |on which | | |presiden|election to |(a) the day |the term of| | |t |fill a vacancy|on which the |office of | | |OR |arising - |poll is held;|the person | | |councill|(a) by |or |whose | | |or |resignation; |(b) if no |office has | | | |or |poll is held,|or will | | | |(b) under |the |become | | | |section 2.33 |nomination |vacant | | | |(i.e. where a |day, |would have | | | |member becomes|unless the |ended if | | | |a member of a |office has |the vacancy| | | |parliament), |not then |had not | | | |including an |become vacant|occurred | | | |election |in which case| | | | |required under|the term | | | | |section 4.57 |begins when | | | | |or 4.58 in |the office | | | | |respect of |becomes | | | | |such an |vacant | | | | |extraordinary | | | | | |election | | | |7. |Elector |Elected at an |On the day |On the | | |mayor or|extraordinary |after - |third | | |presiden|election |(a) the day |Saturday in| | |t |required under|on which the |October in | | | |section 4.57 |poll is held;|the fourth | | | |or 4.58 in |or |year after | | | |respect of an |(b) if no |the year in| | | |ordinary |poll is held,|which the | | | |election |the day of |term began | | | | |nomination |(but note | | | | | |sections 2.| | | | | |14 | | | | | |and 2.30) | |8. |Councill|Elected at an |On the day |On the day | | |or |extraordinary |after - |determined | | | |election |(a) the day |by the | | | |required under|on which the |returning | | | |section 4.57 |poll is held;|officer | | | |or 4.58 in |or |under | | | |respect of an |(b) if no |section 4.7| | | |ordinary |poll is held,|8 (but note| | | |election |the day of |section 2.3| | | | |nomination |0) | |9. |Elector |Elected at a |On the day |On the day | | |mayor or|section 4.15 |after - |ascertained| | |presiden|election |(a) the day |as if the | | |t | |on which the |election | | |OR | |poll is held;|were the | | |councill| |or |election | | |or | |(b) if no |that has | | | | |poll is held,|been | | | | |the day of |declared | | | | |nomination |invalid | |10. |Elector |Appointed |On the day on|On the day | | |mayor |under |which - |on which | | |presiden|section 4.57(3|(a) the |the term | | |t |) |person is |would have | | |OR | |appointed; or|ended if | | |councill| | |the person | | |or | |(b) the |had been | | | | |person's term|elected | | | | |would have |under | | | | |begun if the |section 4.5| | | | |person had |7(1) (but | | | | |been elected |see | | | | |under |Schedule 4.| | | | |section 4.57(|2, | | | | |1), |clause 9) | | | | |whichever is | | | | | |later | | |11. |Councill|Elected at any|When the |When the | | |or mayor|election |person is |mayor or | | |or | |elected |president | | |presiden| | |is next | | |t | | |elected at | | | | | |or after | | | | | |the local | | | | | |government'| | | | | |s next | | | | | |ordinary | | | | | |elections | |12. |Deputy |Elected at any|When the |At the | | |mayor or|election |person is |start of | | |deputy | |elected |the first | | |presiden| | |meeting of | | |t | | |the council| | | | | |after the | | | | | |local | | | | | |government'| | | | | |s next | | | | | |ordinary | | | | | |elections | [Section 2.28 amended by No. 66 of 2006 s. 4.] 2.29. Declaration (1) A person elected as an elector mayor or president or as a councillor has to make a declaration in the prescribed form before acting in the office. (2) A person elected by the council as mayor, president, deputy mayor or deputy president has to make a declaration in the prescribed form before acting in the office. (3) A declaration required by this section is to be taken or made before a prescribed person. (4) A person who acts in an office contrary to this section commits an offence. Penalty: $5 000 or imprisonment for one year. [Section 2.29 amended by No. 24 of 2005 s. 57.] 2.30. Terms extended if ordinary elections delayed Where an ordinary election is deferred or adjourned under this Act until after the third Saturday in October in any year, a member of a council whose term of office expires on that day can continue to act in the office until the substituted election day. [Section 2.30 amended by No. 66 of 2006 s. 5.] 2.31. Resignation (1) An elector mayor or president may resign from the office of mayor or president. (2) A councillor may - (a) resign from the office of councillor; (b) resign from the office of councillor mayor or president, deputy mayor or deputy president. (3) Written notice of resignation is to be signed and dated by the person who is resigning and delivered to the CEO. (4) The resignation takes effect from the date of delivery of the notice or from a later day specified in the notice. 2.32. How extraordinary vacancies occur in offices elected by electors The office of a member of a council as an elector mayor or president or as a councillor becomes vacant if the member - (a) dies; (b) resigns from the office; (c) does not make the declaration required by section 2.29(1) within 2 months after being declared elected to the office; (d) advises or accepts under section 2.27 that he or she is disqualified, or is declared to be disqualified by the State Administrative Tribunal acting on an application under section 2.27; (da) is disqualified by an order under section 5.113, 5.117 or 5.119 from holding office as a member of a council; (e) becomes the holder of any office or position in the employment of the local government; or (f) having been elected to an office of councillor, is elected by the electors to the office of mayor or president of the council. [Section 2.32 amended by No. 55 of 2004 s. 686; No. 24 of 2005 s. 58; No. 1 of 2007 s. 5.] 2.33. Extraordinary vacancy on election to a parliament (1) If a member of a council is elected as a member of a parliament (as defined in section 2.20) the office of the member as an elector mayor or president or as a councillor becomes vacant on the next ordinary elections day. (2) Subsection (1) does not have effect if - (a) the member's term of office ends under the Table to section 2.28; or (b) the member's office becomes vacant under section 2.32, on or before the next ordinary elections day. 2.34. How extraordinary vacancies occur in offices elected by the council (1) The office of a member of a council as a councillor mayor or president, deputy mayor or deputy president becomes vacant if the member - (a) ceases to be a councillor under section 2.32 or 2.33; (b) resigns from the office; (c) does not make the declaration required by section 2.29(2) within 2 months after being elected to the office; or (d) being the deputy mayor or deputy president, is elected by the council as mayor or president of the council. (2) A person who holds an office referred to in subsection (1) immediately before an ordinary elections day continues to hold that office after that day (whether or not he or she ceases to be a councillor on that day) until his or her term of office ends under item 11 or 12 of the Table to section 2.28. 2.35. Vacancies on restructure of districts, wards or membership Directions given by order under section 9.62 to give effect to an order under one or more of sections 2.1, 2.2 and 2.18 may direct which offices of members (if any) of a council are to become vacant, and when those offices become vacant. 2.36. Vacancies on dismissal of council If a council is dismissed under section 8.25 the offices of the members become vacant from the time when the order dismissing the council takes effect. 2.36A. Power to declare offices vacant if district is to be abolished (1) If an order abolishing a district is made so as to take effect on a day other than the day on which that order is published in the Gazette, the Governor may, by order, declare all the offices of members of the council to be vacant. (2) A declaration under this section - (a) has no effect if it is made more than 2 years before the date on which the district is to be abolished; and (b) takes effect from the time specified in it. (3) When a declaration has been made under this section the Governor may, by order, appoint a person as commissioner of the local government until the district is abolished. [Section 2.36A inserted by No. 64 of 1998 s. 4(1).] 2.37. Power to declare offices vacant (1) If more than ½ of the offices of members of a council are vacant for any reason, the Governor may, by order, declare all the remaining offices of members to be vacant. (2) If the Minister receives notification under section 5.3(3) about the failure of a council to hold a meeting, the Governor may, by order, declare all the offices of members of the council to be vacant. (3) A declaration under this section takes effect from the time specified in the declaration. (4) When a declaration has been made under this section the Governor may, by order, appoint a person to be the commissioner of the local government until the offices of members of the council are filled again and the new council holds its first meeting. (5) An order under subsection (4) is to fix a day for any poll needed for the election of members to fill the vacant offices again. (6) The day fixed is to be a day that is as soon as practicable after the declaration takes effect and allows enough time for the electoral requirements to be complied with, but is not to be later than 2 years after the day on which the declaration takes effect. [Section 2.37 amended by No. 49 of 2004 s. 21.] 2.37A. Vacancies in all offices for any other reason (1) If all the offices of members of a council have become vacant, or are going to become vacant, for any reason other than an order under section 2.36A(1), 2.37(1) or (2) or 8.25, the Governor may, by order, appoint a person to be the commissioner of the local government until the offices of members of the council are filled again and the new council holds its first meeting. (2) An order under subsection (1) is to fix a day for any poll needed for the election of members to fill the vacant offices again. (3) The day fixed is to be a day that is as soon as practicable after the appointment takes effect and allows enough time for the electoral requirements to be complied with, but is not to be later than 2 years after the day on which the appointment takes effect. [Section 2.37A inserted by No. 1 of 1998 s. 6(1); amended by No. 64 of 1998 s. 4(3); No. 49 of 2004 s. 22.] Division 7 - Commissioners 2.38. The function of a commissioner (1) The function of a commissioner of a local government is to exercise the powers and discharge the duties of the council of the local government and its mayor or president. (2) A commissioner is to be regarded as being the council. (3) Unless section 2.43 applies, or the contrary intention appears, a reference in this Act or another written law to a local government, a council or a member of a council includes reference to a commissioner. 2.39. Appointment of commissioner (1) A commissioner of a local government can be appointed by the Governor under the power given by section 2.6(4), 2.36A(3), 2.37(4), 2.37A(1), 8.30 or 8.33 and not otherwise. (2) Subsection (1) does not prevent the appointment of a person under Schedule 2.4 clause 4 to fill a vacancy in the office of commissioner. [Section 2.39 amended by No. 1 of 1998 s. 6(3); No. 64 of 1998 s. 4(4); No. 17 of 2009 s. 7.] 2.40. Joint commissioners (1) A power to appoint a commissioner includes power to appoint 3 or 5 commissioners to administer the local government and to appoint one of them to be the chairperson and another to be the deputy chairperson. (2) If 3 or 5 commissioners are appointed - (a) they are to exercise the powers and discharge the duties of the council of the local government jointly; (b) the chairperson is to exercise the powers and discharge the duties of the mayor or president; and (c) the deputy chairperson is to exercise the powers and discharge the duties of the deputy mayor or deputy president. 2.41. Appointment, tenure, meetings etc. Schedule 2.4 (which contains provisions about commissioners) has effect. 2.42. Commissioner to make declaration (1) A person cannot act in the office of commissioner until he or she has made a declaration in the prescribed form. (2) A person who acts in an office contrary to this section commits an offence. Penalty: $5 000 or imprisonment for one year. [Section 2.42 amended by No. 24 of 2005 s. 59.] 2.43. Applicability of certain provisions of this Act (1) Division 5 does not apply to a commissioner except to the extent required by Schedule 2.4, clauses 1 and 3(c). (2) Division 6 does not apply to a commissioner. (3) Part 5, Division 6 does not apply to an interest that a commissioner has in a question relating to a payment or reimbursement under Schedule 2.4, clause 5. Division 8 - Local Government Advisory Board 2.44. Establishment of Advisory Board (1) There is established a body to be known as the Local Government Advisory Board. (2) Schedule 2.5 (which contains provisions about the Local Government Advisory Board) has effect. 2.45. Functions of Advisory Board (1) The functions of the Advisory Board include - (a) considering and, if required by this Act, inquiring into any proposal made to it under this Act that an order be made to do any or all of the matters in section 2.1, 2.2, 2.3, 2.18(1) or 2.18(3); (b) making recommendations to the Minister on those proposals; (c) carrying out any other inquiries the Minister may direct; and (d) considering whether as a consequence of any recommendation the Board proposes to make to the Minister, the making of an order to do any or any other of the matters in section 2.1, 2.2, 2.3, 2.18(1) or 2.18(3) in respect of a relevant district is or may be necessary. (2) In subsection (1)(d) - relevant district means a district to which the proposed recommendation relates or an adjoining district. (3) If the Advisory Board considers that the making of an order referred to in subsection (1)(d) is or may be necessary, the Board is to consider or inquire into the making of any such order as if it had received a proposal that such an order be made. Part 3 - Functions of local governments What this Part is about This Part describes the functions of a local government and deals with some important issues that the performance of those functions may involve. In particular - (a) Division 1 describes the general function of a local government and contains some other general provisions; (b) Divisions 2 and 3 deal with legislative and executive functions respectively; (c) Division 4 allows functions to be performed by regional local governments. Division 1 - General 3.1. General function (1) The general function of a local government is to provide for the good government of persons in its district. (2) The scope of the general function of a local government is to be construed in the context of its other functions under this Act or any other written law and any constraints imposed by this Act or any other written law on the performance of its functions. (3) A liberal approach is to be taken to the construction of the scope of the general function of a local government. 3.2. Relationship to State Government The scope of the general function of a local government in relation to its district is not limited by reason only that the Government of the State performs or may perform functions of a like nature. 3.3. Act not to affect Crown's rights concerning alienated land Nothing that this Act authorises a local government or anyone else to do prevents the Crown or a person acting on its behalf from doing anything relating to or affecting land alienated from the Crown that could have been done if this Act had not been enacted. 3.4. Functions may be legislative or executive The general function of a local government includes legislative and executive functions. Division 2 - Legislative functions of local governments Subdivision 1 - Local laws made under this Act 3.5. Legislative power of local governments (1) A local government may make local laws under this Act prescribing all matters that are required or permitted to be prescribed by a local law, or are necessary or convenient to be so prescribed, for it to perform any of its functions under this Act. (2) A local law made under this Act does not apply outside the local government's district unless it is made to apply outside the district under section 3.6. (3) The power conferred on a local government by subsection (1) is in addition to any power to make local laws conferred on it by any other Act. (4) Regulations may set out - (a) matters about which, or purposes for which, local laws are not to be made; or (b) kinds of local laws that are not to be made, and a local government cannot make a local law about such a matter, or for such a purpose or of such a kind. (5) Regulations may set out such transitional arrangements as are necessary or convenient to deal with a local law ceasing to have effect because the power to make it has been removed by regulations under subsection (4). [Section 3.5 amended by No. 64 of 1998 s. 5.] 3.6. Places outside the district (1) If the Governor's approval has been first obtained, a local government may make a local law under this Act that applies outside its district. (2) A local government cannot, under subsection (1), make a local law that applies to - (a) a part of the State that is in the district of another local government; or (b) a part of the State to which a local law made by another local government concerning the same subject matter applies under this section. (3) The Governor may revoke any approval given under subsection (1) and, after that revocation, a local law made under the approval ceases to apply to the part of the State for which the approval was given. (4) The Minister is to cause notice of any revocation under subsection (3) to be published in the Gazette. 3.7. Inconsistency with written laws A local law made under this Act is inoperative to the extent that it is inconsistent with this Act or any other written law. 3.8. Local laws may adopt codes etc. (1) A local law made under this Act may adopt the text of - (a) any model local law, or amendment to it, published under section 3.9; (b) a local law of any other local government; or (c) any code, rules, specifications, or standard issued by Standards Australia or by such other body as is specified in the local law. (2) The text may be adopted - (a) wholly or in part; (b) as modified by the local law; or (c) as it exists at a particular date or, except if the text of a model local law is being adopted, as amended from time to time. (3) The adoption may be direct, by reference made in the local law, or indirect, by reference made in any text that is itself directly or indirectly adopted. [Section 3.8 amended by No. 74 of 2003 s. 79.] 3.9. Model local laws (1) The Governor may cause to be prepared and published in the Gazette model local laws the provisions of which a local law made under this Act may adopt by reference, with or without modifications. (2) Model local laws have no effect except to the extent that they are adopted. (3) The Governor may, by notice published in the Gazette, amend a model local law published under this section. (4) An amendment of a model local law does not affect any local law that adopted the model local law before the amendment but the amendment may be adopted by a further local law. 3.10. Creating offences and prescribing penalties (1) A local law made under this Act may provide that contravention of a provision of the local law is an offence, and may provide for the offence to be punishable on conviction by a penalty not exceeding a fine of $5 000. (2) If the offence is of a continuing nature, the local law may make the person liable to a further penalty not exceeding a fine of $500 in respect of each day or part of a day during which the offence has continued. (3) The local law may provide for the imposition of a minimum penalty for the offence. (4) The level of the penalty may be related to - (a) the circumstances or extent of the offence; (b) whether the offender has committed previous offences and, if so, the number of previous offences that the offender has committed. [(5) deleted] (6) A local law made under this Act may specify the method and the means by which any fines imposed are to be paid and collected, or recovered. [Section 3.10 amended by No. 1 of 1998 s. 7.] Subdivision 2 - Local laws made under any Act 3.11. Subdivision applies to local laws made under any Act This Subdivision applies to local laws made under this Act and the procedure for making them and, unless a contrary intention appears in that other Act, to local laws made under any other Act, and the procedure for making them. 3.12. Procedure for making local laws (1) In making a local law a local government is to follow the procedure described in this section, in the sequence in which it is described. (2) At a council meeting the person presiding is to give notice to the meeting of the purpose and effect of the proposed local law in the prescribed manner. (3) The local government is to - (a) give Statewide public notice stating that - (i) the local government proposes to make a local law the purpose and effect of which is summarized in the notice; (ii) a copy of the proposed local law may be inspected or obtained at any place specified in the notice; and (iii) submissions about the proposed local law may be made to the local government before a day to be specified in the notice, being a day that is not less than 6 weeks after the notice is given; (b) as soon as the notice is given, give a copy of the proposed local law and a copy of the notice to the Minister and, if another Minister administers the Act under which the local law is proposed to be made, to that other Minister; and (c) provide a copy of the proposed local law, in accordance with the notice, to any person requesting it. (3a) A notice under subsection (3) is also to be published and exhibited as if it were a local public notice. (4) After the last day for submissions, the local government is to consider any submissions made and may make the local law* as proposed or make a local law* that is not significantly different from what was proposed. * Absolute majority required. (5) After making the local law, the local government is to publish it in the Gazette and give a copy of it to the Minister and, if another Minister administers the Act under which the local law is proposed to be made, to that other Minister. (6) After the local law has been published in the Gazette the local government is to give local public notice - (a) stating the title of the local law; (b) summarizing the purpose and effect of the local law (specifying the day on which it comes into operation); and (c) advising that copies of the local law may be inspected or obtained from the local government's office. (7) The Minister may give directions to local governments requiring them to provide to the Parliament copies of local laws they have made and any explanatory or other material relating to them. (8) In this section - making in relation to a local law, includes making a local law to amend the text of, or repeal, a local law. [Section 3.12 amended by No. 1 of 1998 s. 8; No. 64 of 1998 s. 6; No. 49 of 2004 s. 16(4) and 23.] 3.13. Procedure where significant change in proposal If during the procedure for making a proposed local law the local government decides to make a local law that would be significantly different from what it first proposed, the local government is to recommence the procedure. 3.14. Commencement of local laws (1) Unless it is made under section 3.17, a local law comes into operation on the 14th day after the day on which it is published in the Gazette or on such later day as may be specified in the local law. (2) A local law made under section 3.17 comes into operation on the day on which it is published in the Gazette or on such later day as may be specified in the local law. [Section 3.14 amended by No. 1 of 1998 s. 9.] 3.15. Local laws to be publicized A local government is to take reasonable steps to ensure that the inhabitants of the district are informed of the purpose and effect of all of its local laws. 3.16. Periodic review of local laws (1) Within a period of 8 years from the day when a local law commenced or a report of a review of the local law was accepted under this section, as the case requires, a local government is to carry out a review of the local law to determine whether or not it considers that it should be repealed or amended. (2) The local government is to give Statewide public notice stating that - (a) the local government proposes to review the local law; (b) a copy of the local law may be inspected or obtained at any place specified in the notice; and (c) submissions about the local law may be made to the local government before a day to be specified in the notice, being a day that is not less than 6 weeks after the notice is given. (2a) A notice under subsection (2) is also to be published and exhibited as if it were a local public notice. (3) After the last day for submissions, the local government is to consider any submissions made and cause a report of the review to be prepared and submitted to its council. (4) When its council has considered the report, the local government may determine* whether or not it considers that the local law should be repealed or amended. * Absolute majority required. [Section 3.16 amended by No. 64 of 1998 s. 7; No. 49 of 2004 s. 24.] 3.17. Governor may amend or repeal local laws (1) The Governor may make local laws to amend the text of, or repeal, a local law. (2) Subsection (1) does not include the power to amend a local law to include in it any provision that bears no reasonable relationship to the local law as in force before the amendment. (3) The Minister is to give a local government notice in writing of any local law that the Governor makes to amend the text of, or repeal, any of the local government's local laws. (4) Section 5.94 applies as if a local law made under this section by the Governor were a local law made by the local government in accordance with section 3.12. Division 3 - Executive functions of local governments Subdivision 1 - Performing executive functions 3.18. Performing executive functions (1) A local government is to administer its local laws and may do all other things that are necessary or convenient to be done for, or in connection with, performing its functions under this Act. (2) In performing its executive functions, a local government may provide services and facilities. (3) A local government is to satisfy itself that services and facilities that it provides - (a) integrate and coordinate, so far as practicable, with any provided by the Commonwealth, the State or any public body; (b) do not duplicate, to an extent that the local government considers inappropriate, services or facilities provided by the Commonwealth, the State or any other body or person, whether public or private; and (c) are managed efficiently and effectively. 3.19. Places to be regarded as within the district (1) For the purposes of the performance by a local government of any of its executive functions, its district is to be regarded as including - (a) any part of another district in relation to which it has been given approval by the local government of that district to perform that function; and (b) any part of the State in relation to which it has been given approval by the Governor to perform that function. (2) Approval cannot be given under subsection (1)(b) in relation to a part of the State that is in a district. (3) The Governor may revoke any approval given under subsection (1)(b). (4) If the Governor has, under section 3.6, given approval for a local government to make a local law that has effect as if the local government's district included a part of the State that is not in a district, that approval is to be taken to include approval under this section to the extent necessary for the proper administration of that local law. 3.20. Performing functions outside the district (1) Things done by a local government in performing its executive functions may be done outside its own district but before it can do anything on land outside its own district that is not local government property of that local government it is required to have obtained the consent of - (a) the owner of the land; (b) if the land is occupied, the occupier of the land; and (c) if the land is under the control or management of any other person, that other person. (2) This section does not apply to anything that a local government does in the district of another local government if it is done on behalf of the local government of that district. 3.21. Duties when performing functions (1) In performing its executive functions, a local government, so far as is reasonable and practicable, is to - (a) ensure that - (i) the lawful use of any land, thoroughfare or premises is not obstructed, and any reasonable request that a person makes to avoid such obstruction is met; (ii) as little harm or inconvenience is caused and as little damage is done as is possible; (iii) danger to any person or property does not arise from anything done on land; and (iv) anything belonging to it, or to a person who has exercised a power of entry on its behalf, that has been left on any land, premises or thing entered is removed as soon as practicable unless this Act expressly allows it to be left there; and (b) ensure that - (i) buildings, fences, and other structures are not disturbed nor damaged; (ii) when it enters land that is fenced, it enters through the existing and usual openings in the fence unless it is expressly authorised to open the fence; and (iii) any physical damage done to any land, premises or thing, is immediately made good unless compensation has been or is to be paid. (2) Subsection (1)(b) does not apply to any land, premises or thing that is local government property. 3.22. Compensation (1) If a person who is - (a) the owner or occupier of land granted in fee simple; or (b) the occupier of land held under lease or on conditional terms of purchase from the Crown, except for pastoral or timber purposes, sustains damage through the performance by a local government of its functions under this Act, the local government is to compensate the person if the person requests compensation unless it is otherwise expressly stated in subsection (5) or in Schedule 3.1 or Schedule 3.2. (2) Despite subsection (1), regulations amending Schedule 3.1 or Schedule 3.2 may exclude or limit the obligation of a local government to pay compensation for a particular matter. (3) The assessment of damage for which compensation is to be paid is to include the value of any material taken under Subdivision 2. (4) A dispute about the amount of compensation is to be determined by arbitration in accordance with section 3.23. (5) Compensation is not payable for damage sustained through a local government - (a) draining water onto land to the extent that the water follows a natural watercourse; (b) closing or restricting the use of a thoroughfare under section 3.50 or a power given by any other written law; (c) performing functions under section 3.51(2)(b); or (d) performing any other prescribed function. (6) This section does not limit section 9.57. (7) Regulations may - (a) prescribe the time within which compensation may be claimed and procedures for making claims; (b) make provision as to how compensation for damage is to be assessed. [Section 3.22 amended by No. 64 of 1998 s. 14(2).] 3.23. Arbitration If a matter is to be determined by arbitration in accordance with this section - (a) if the parties have not signed or otherwise assented to an agreement to refer the matter to arbitration, the matter is nevertheless to be regarded as having been referred for arbitration under the Commercial Arbitration Act 1985; (b) the Commercial Arbitration Act 1985 applies in respect of the reference and the arbitration; and (c) the determination is to be made by 2 arbitrators, one to be appointed by each party, but this paragraph does not exclude the provisions of the Commercial Arbitration Act 1985 that apply if a party defaults in the exercise of a power of appointment. Subdivision 2 - Certain provisions about land 3.24. Authorising persons under this Subdivision The powers given to a local government by this Subdivision can only be exercised on behalf of the local government by a person expressly authorised by it to exercise those powers. 3.25. Notices requiring certain things to be done by owner or occupier of land (1) A local government may give a person who is the owner or, unless Schedule 3.1 indicates otherwise, the occupier of land a notice in writing relating to the land requiring the person to do anything specified in the notice that - (a) is prescribed in Schedule 3.1, Division 1; or (b) is for the purpose of remedying or mitigating the effects of any offence against a provision prescribed in Schedule 3.1, Division 2. (2) Schedule 3.1 may be amended by regulations. (3) If the notice is given to an occupier who is not the owner of the land, the owner is to be informed in writing that the notice was given. (4) A person who is given a notice under subsection (1) is not prevented from complying with it because of the terms on which the land is held. (5) A person who is given a notice under subsection (1) may apply to the State Administrative Tribunal for a review of the decision to give the notice. (6) A person who fails to comply with a notice under subsection (1) commits an offence. [Section 3.25 amended by No. 55 of 2004 s. 687.] 3.26. Additional powers when notices given (1) This section applies when a notice is given under section 3.25(1). (2) If the person who is given the notice (notice recipient) fails to comply with it, the local government may do anything that it considers necessary to achieve, so far as is practicable, the purpose for which the notice was given. (3) The local government may recover the cost of anything it does under subsection (2) as a debt due from the person who failed to comply with the notice. (4) If a notice recipient - (a) incurs expense in complying with any requirement of the notice; or (b) fails to comply with such a requirement and, as a consequence, is fined or has to pay to a local government the cost it incurs in doing anything under subsection (2), the notice recipient may apply to a court for an order under subsection (6). (5) In subsection (4) - court means a court that would have jurisdiction to hear an action to recover a debt of the amount of the expense, fine or cost sought to be recovered by the notice recipient. (6) On an application under subsection (4) the court may order - (a) if the notice recipient is the owner, the occupier; or (b) if the notice recipient is the occupier, the owner, to pay to the notice recipient so much of that expense, fine or cost as the court considers fair and reasonable in the circumstances. (7) In determining what is fair and reasonable the court is to have regard to - (a) the type of land involved; (b) the terms on which the occupier is occupying the land; and (c) any other matter the court considers to be relevant. [Section 3.26 amended by No. 1 of 1998 s. 10.] 3.27. Particular things local governments can do on land that is not local government property (1) A local government may, in performing its general function, do any of the things prescribed in Schedule 3.2 even though the land on which it is done is not local government property and the local government does not have consent to do it. (2A) In subsection (1) land includes Crown land the subject of a pastoral lease within the meaning of the Land Administration Act 1997 section 3. (2) Schedule 3.2 may be amended by regulations. (3) If Schedule 3.2 expressly states that this subsection applies, subsection (1) does not authorise anything to be done on land that is being used as the site or curtilage of a building or has been developed in any other way, or is cultivated. (4A) For the purposes of subsection (3), planting pasture on land for grazing does not amount to cultivating the land. (4) Nothing in subsection (3) prevents regulations amending Schedule 3.2 from stating that subsection (3) applies, or excluding its application, in relation to a particular matter. [Section 3.27 amended by No. 17 of 2009 s. 8] Subdivision 3 - Powers of entry 3.28. When this Subdivision applies The powers of entry conferred by this Subdivision may be used for performing any function that a local government has under this Act if entry is required for the performance of the function or in any other case in which entry is authorised by this Act other than by a local law. 3.29. Powers of entry are additional The powers of entry upon land conferred by this Subdivision are in addition to and not in derogation of any power of entry conferred by any other law. 3.30. Assistants and equipment Entry under this Subdivision may be made with such assistants and equipment as are considered necessary for the purpose for which entry is required. 3.31. General procedure for entering property (1) Except in an emergency or if the entry is authorised by the warrant of a justice, entry by or on behalf of a local government on to any land, premises or thing is not lawful unless - (a) the consent of the owner or occupier has been obtained; or (b) notice has been given under section 3.32. (2) If notice has been given under section 3.32, a person authorised by the local government to do so may lawfully enter the land, premises or thing without the consent of the owner or occupier unless the owner or occupier or a person authorised by the owner or occupier objects to the entry. (3) The powers conferred on a local government under this section may be exercised instead of the powers conferred under the Public Works Act 1902 and are not subject to any qualification or restriction by any provision of that Act. 3.32. Notice of entry (1) A notice of an intended entry is to be given to the owner or occupier of the land, premises or thing that is to be entered. (2) The notice is to specify the purpose for which the entry is required and continues to have effect for so long as that requirement continues. (3) The notice is to be given not less than 24 hours before the power of entry is exercised. (4) Successive entries for the purpose specified in the notice are to be regarded as entries to which that notice relates. 3.33. Entry under warrant (1) In the circumstances described in subsection (2), a justice may by warrant authorise a local government by its employees, together with such other persons as are named or described in the warrant, or a police officer, to enter any land, premises or thing using such force as is necessary. (2) A warrant may be granted under subsection (1) where a justice is satisfied that the entry is reasonably required by a local government for the purpose of performing any of its functions, but - (a) entry has been refused or is opposed or prevented; (b) entry cannot be obtained; or (c) notice cannot be given under section 3.32 without unreasonable difficulty or without unreasonably delaying entry. (3) A warrant granted under subsection (1) - (a) is to be in the prescribed form; (b) is to specify the purpose for which the land, premises or thing may be entered; and (c) continues to have effect until the purpose for which it was granted has been satisfied. 3.34. Entry in an emergency (1) In an emergency a local government may lawfully enter any land, premises or thing immediately and without notice and perform any of its functions as it considers appropriate to deal with the emergency. (2) For the purposes of this section, an emergency exists where the local government or its CEO is of the opinion that the circumstances are such that compliance with the requirements for obtaining entry other than under this section would be impractical or unreasonable because of, or because of the imminent risk of - (a) injury or illness to any person; (b) a natural or other disaster or emergency; or (c) such other occurrence as is prescribed for the purposes of this section. (3) A local government may use reasonable force to exercise the power of entry given by subsection (1). (4) A local government may exercise the power of entry given by subsection (1) at any time while the emergency exists and for so long subsequently as is reasonably required. (5) Although notice of an intended entry under this section is not generally required, a local government is to give notice of an intended entry of land under this section to the owner or occupier of the land where it is practicable to do so. 3.35. Purpose of entry to be given on request A person who enters or who has entered any land, premises or thing on behalf of a local government is to give particulars of the power by virtue of which the local government claims a right of entry on being requested to do so. 3.36. Opening fences (1) This section applies only if it is expressly stated in Schedule 3.2. (2) Subsection (1) does not prevent regulations amending Schedule 3.2 from stating that this section applies, or excluding the application of this section, in relation to a particular matter. (3) If this section applies and it is not practicable to enter land that is fenced through the existing and usual openings in the fence, the local government may, on giving 3 days' notice in writing to the owner or occupier of the land that it intends to do so, open the fence. (4) If it opens the fence the local government is to provide at the opening an effective gate or, if the owner of the land agrees, a device across the gap in the fence that enables motor traffic to pass through the gap and prevents the straying of livestock through the gap. (5) If a gate is provided a person who, without the occupier's consent, leaves the gate open when it is not in use commits an offence. (6) If a gate is provided, when the local government no longer requires the opening, it is to immediately remove the gate and make good the fence unless the owner agrees to its retention. (7) The owner and occupier may, in a particular case, relieve the local government of any obligation that it has under this section. Subdivision 4 - Impounding abandoned vehicle wrecks and goods involved in certain contraventions [Heading amended by No. 8 of 2009 s. 87.] 3.37. Contraventions that can lead to impounding (1) Regulations may prescribe any contravention of a regulation or local law made under this Act to be a contravention that can lead to impounding. (2) Regulations may exclude the application of particular provisions of this Subdivision. 3.38. Terms used in this Subdivision In this Subdivision - alleged offender means the person who is alleged to have committed a contravention that can lead to impounding; contravention that can lead to impounding means anything prescribed to be a contravention that can lead to impounding; goods means any goods involved in a contravention that can lead to impounding, and includes - (a) a vehicle; (ab) an animal; or (b) a stall or other structure temporarily placed on land, involved in such a contravention; non-perishable goods includes animals; specified, in relation to a notice, means specified in the notice; vehicle means a vehicle for which a vehicle licence is required under the Road Traffic Act 1974 if the vehicle is to be used on a road. [Section 3.38 amended by No. 64 of 1998 s. 8; No. 28 of 2001 s. 33.] 3.39. Power to remove and impound (1) An employee authorised by a local government for the purpose may remove and impound any goods that are involved in a contravention that can lead to impounding. (2) A person may use reasonable force to exercise the power given by subsection (1). 3.40. Vehicle may be removed if goods to be impounded are in or on the vehicle (1) Where under section 3.39 an employee may remove and impound any goods that are in or on a vehicle that is not itself to be impounded and, because of their size, nature or quantity or for any other reason, it is not convenient to unload and deal with them where they are, the employee may enter the vehicle for the purpose of removing it to a place where the goods may be conveniently unloaded and impounded. (2) Where a vehicle is removed under subsection (1) the local government is to allow the alleged offender, as soon as practicable after the goods are unloaded from the vehicle, to resume control of the vehicle. (3) If the person entitled to resume control of the vehicle is not present when the goods are unloaded or fails to resume control of the vehicle, the local government is to give notice to the person who is the holder of the requisite vehicle licence or permit under the Road Traffic Act 1974 in respect of the vehicle, advising that the vehicle may be collected from a place specified during such hours as are specified. 3.40A. Abandoned vehicle wreck may be taken (1) An employee authorised by a local government for the purpose may remove and impound a vehicle that, in the opinion of the local government, is an abandoned vehicle wreck. (2) If, within 7 days after a vehicle is removed under subsection (1), the owner of the vehicle is identified, the local government is to give notice to that person advising that the vehicle may be collected from a place specified during such hours as are specified in the notice. (3) A notice is to include a short statement of the effect of subsection (4)(b) and the effect of the relevant provisions of sections 3.46 and 3.47. (4) If - (a) after 7 days from the removal of a vehicle under subsection (1), the owner of the vehicle has not been identified; or (b) after 7 days from being given notice under subsection (2), the owner of the vehicle has not collected the vehicle, the local government may declare that the vehicle is an abandoned vehicle wreck. (5) In this section - abandoned vehicle wreck means a vehicle - (a) that is not operational; (b) the owner of which has not been identified by the local government after using all reasonable avenues to do so; and (c) that has a value that is less than the prescribed value calculated in the prescribed manner. [Section 3.40A inserted by No. 49 of 2004 s. 25(1).] 3.41. Notice to collect impounded perishable goods (1) When any perishable goods are being removed under section 3.39 the employee removing them is required to personally give the person from whose charge they are removed notice that the goods may be collected from a place specified during such hours as are specified. (2) The giving of the notice does not prevent a prosecution from being instituted against the alleged offender. 3.42. Impounded non-perishable goods (1) When any non-perishable goods have been removed and impounded under section 3.39 the local government is required to either - (a) institute a prosecution against the alleged offender; or (b) give the alleged offender notice that the goods may be collected from a place specified during such hours as are specified. (2) If after 7 days after the goods were removed, a local government has been unable to give the alleged offender a notice under subsection (1)(b) because it has been unable, after making reasonable efforts to do so, to find the alleged offender, the local government is to be taken to have given that notice. [Section 3.42 amended by No. 64 of 1998 s. 9.] 3.43. Court may confiscate impounded non-perishable goods When a court convicts an alleged offender the court may, in addition to imposing any other penalty, order that any non-perishable goods removed and impounded under section 3.39 be confiscated. 3.44. Notice to collect goods if not confiscated Where non-perishable goods have been removed and impounded under section 3.39 and a prosecution is instituted, if the alleged offender - (a) is not convicted; or (b) is convicted but the court does not order that the goods be confiscated, the local government is required to give the alleged offender notice that the goods may be collected from a place specified during such hours as are specified. 3.45. Notice to include warning A notice is to include a short statement of the effect of the relevant provisions of sections 3.46, 3.47 and 3.48. 3.46. Goods may be withheld until costs paid (1) A local government may refuse to allow goods impounded under section 3.39 or 3.40A to be collected until the costs of removing, impounding and keeping them have been paid to the local government. (2) A local government may refuse to allow goods removed under section 3.40 or 3.40A to be collected until the costs of removing and keeping them have been paid to the local government. [Section 3.46 inserted by No. 64 of 1998 s. 10; amended by No. 49 of 2004 s. 25(2) and (3).] 3.47. Disposing of confiscated or uncollected goods (1) The local government may sell or otherwise dispose of any goods that have been ordered to be confiscated under section 3.43. (2) The local government may sell or otherwise dispose of any vehicle that has not been collected within - (a) 2 months of a notice having been given under section 3.40(3); or (b) 7 days of a declaration being made under section 3.40A(4) that the vehicle is an abandoned vehicle wreck. (2a) The local government may sell or otherwise dispose of impounded goods that have not been collected within the period specified in subsection (2b) of - (a) a notice having been given under section 3.42(1)(b) or 3.44; or (b) being impounded if the local government has been unable, after making reasonable efforts to do so, to give that notice to the alleged offender. (2b) The period after which goods may be sold or otherwise disposed of under subsection (2a) is - (a) for perishable goods - 3 days; (b) for animals - 7 days; (ca) for prescribed non-perishable goods - one month; (c) for other non-perishable goods - 2 months. (3) Section 3.58 applies to the sale of goods under this section as if they were property referred to in that section. (4) Money received by a local government from the sale of goods under subsection (2a) is to be credited to its trust fund except to the extent required to meet the costs and expenses incurred by the local government in removing, impounding and selling the goods. (5) Money received by a local government from the sale of a vehicle under subsection (2) is to be credited to its trust fund except to the extent required to meet the costs referred to in section 3.46 and the expenses incurred by the local government in selling the vehicle. (6) Unless this section requires it to be credited to its trust fund, money received by a local government from the sale under this section of any goods is to be credited to its municipal fund. [Section 3.47 amended by No. 64 of 1998 s. 11; No. 49 of 2004 s. 25(4); No. 17 of 2009 s. 9.] 3.47A. Disposal of sick or injured animals (1) If an impounded animal is ill or injured to such an extent that treating it is not practicable the local government may humanely destroy the animal and dispose of the carcass. (2) A local government must not destroy an animal under subsection (1) unless - (a) because of the state of the animal, destroying it is urgent; or (b) the local government has - (i) taken reasonable steps to notify the owner; and (ii) whether or not notice has been given under subparagraph (i), allowed the owner a reasonable opportunity to collect the animal. (3) Subsection (2)(b) does not justify the destruction of an animal before it has been impounded for at least 7 days. [Section 3.47A inserted by No. 64 of 1998 s. 12.] 3.48. Recovery of impounding expenses If goods are removed and impounded under section 3.39 and the alleged offender is convicted, the local government may, by action in a court of competent jurisdiction, recover from the alleged offender - (a) if the goods are not sold under section 3.47, the expenses incurred by the local government in removing and impounding them and in disposing of them if they are disposed of under section 3.47; (b) if the goods are confiscated and sold under section 3.47, the amount, if any, by which the money received from the sale and credited to the municipal fund under section 3.47(6) is insufficient to meet expenses incurred by the local government in removing, impounding, and selling them; and (c) if the goods are not confiscated but are sold under section 3.47, the amount, if any, by which the money received from the sale is insufficient to meet the costs and expenses referred to in section 3.47(4) or (5), as the case requires. [Section 3.48 amended by No. 64 of 1998 s. 13.] Subdivision 5 - Certain provisions about thoroughfares [3.49. Deleted by No. 64 of 1998 s. 14(1).] 3.50. Closing certain thoroughfares to vehicles (1) A local government may close any thoroughfare that it manages to the passage of vehicles, wholly or partially, for a period not exceeding 4 weeks. (1a) A local government may, by local public notice, order that a thoroughfare that it manages is wholly or partially closed to the passage of vehicles for a period exceeding 4 weeks. (2) The order may limit the closure to vehicles of any class, to particular times, or to such other case or class of case as may be specified in the order and may contain exceptions. [(3) deleted] (4) Before it makes an order wholly or partially closing a thoroughfare to the passage of vehicles for a period exceeding 4 weeks or continuing the closure of a thoroughfare, the local government is to - (a) give local public notice of the proposed order giving details of the proposal, including the location of the thoroughfare and where, when, and why it would be closed, and inviting submissions from any person who wishes to make a submission; (b) give written notice to each person who - (i) is prescribed for the purposes of this section; or (ii) owns land that is prescribed for the purposes of this section; and (c) allow a reasonable time for submissions to be made and consider any submissions made. (5) The local government is to send to the Commissioner of Main Roads appointed under the Main Roads Act 1930 a copy of the contents of the notice required by subsection (4)(a). (6) An order under this section has effect according to its terms, but may be revoked by the local government, or by the Minister, by order of which local public notice is given. [(7) deleted] (8) If, under subsection (1), a thoroughfare is closed without giving local public notice, the local government is to give local public notice of the closure as soon as practicable after the thoroughfare is closed. (9) The requirement in subsection (8) ceases to apply if the thoroughfare is reopened. [Section 3.50 amended by No. 1 of 1998 s. 11; No. 64 of 1998 s. 15; No. 49 of 2004 s. 26.] 3.50A. Partial closure of thoroughfare for repairs or maintenance Despite section 3.50, a local government may partially and temporarily close a thoroughfare, without giving local public notice, if the closure - (a) is for the purpose of carrying out repairs or maintenance; and (b) is unlikely to have a significant adverse effect on users of the thoroughfare. [Section 3.50A inserted by No. 64 of 1998 s. 16.] 3.51. Affected owners to be notified of certain proposals (1) In this section - person having an interest, in relation to doing anything, means a person who - (a) is the owner of the land in respect of which that thing is done, or any land that is likely to be adversely affected by doing that thing; (b) is shown on the title to any of the land mentioned in paragraph (a) as holding an interest in any of that land; or (c) is prescribed for the purposes of this section. (2) This section applies to - (a) fixing or altering the level of, or the alignment of, a public thoroughfare; or (b) draining water from a public thoroughfare or other public place onto adjoining land. (3) Before doing anything to which this section applies, a local government is to - (a) give notice of what is proposed to be done giving details of the proposal and inviting submissions from any person who wishes to make a submission; and (b) allow a reasonable time for submissions to be made and consider any submissions made. (4) The notice is to be given - (a) in writing to each person having an interest; and (b) if any land is likely to be adversely affected by the doing of the thing, by local public notice. [Section 3.51 amended by No. 64 of 1998 s. 17.] 3.52. Public access to be maintained and plans kept (1) This section applies in respect of a thoroughfare only if it is in the metropolitan area or on land that has been constituted a townsite under section 10 of the Land Act 1933 5. (2) Except to the extent that it is authorised by law to close them or restrict their use, a local government is to ensure that public thoroughfares are kept open for public use. (3) In fixing or altering the level of, or the alignment of, a public thoroughfare, a local government is to ensure that access by vehicle to land adjoining the thoroughfare can be reasonably provided. (4) A local government is to keep plans of the levels and alignments of public thoroughfares that are under its control or management, and make those plans available for public inspection. Subdivision 6 - Various executive functions 3.53. Control of certain unvested facilities (1) In this section - former section 300 means section 300 of the Local Government Act 1960 4 as in force before the commencement of this Act; otherwise unvested facility means a thoroughfare, bridge, jetty, drain, or watercourse belonging to the Crown, the responsibility for controlling or managing which is not vested in any person other than under this section. (2) A local government is responsible for controlling and managing every otherwise unvested facility within its district unless subsection (5) states that this section does not apply. (3) If the facility is partially within each of 2 or more districts, it is to be controlled and managed as the local governments for the districts concerned agree or, if they do not agree, as the Minister directs. (4) An agreement or direction under subsection (3) has effect according to its terms. (5) This section does not apply if any person was, immediately before the commencement of this Act, responsible for controlling or managing the facility unless - (a) the responsibility arose under the former section 300; or (b) the Governor, by order, declares that the facility is to be controlled and managed under this section. 3.54. Reserves under control of a local government (1) If land reserved under the Land Administration Act 1997 is vested in or placed under the control and management of a local government, the local government may do anything for the purpose of controlling and managing that land that it could do under section 5 of the Parks and Reserves Act 1895 if it were a Board appointed under that Act to manage and control the land and for that purpose a reference in that section to a by-law is to be read as a reference to a local law. (2) Subsection (1) is subject to any express provision to the contrary made by an order under the Land Administration Act 1997 in respect of the land. [Section 3.54 amended by No. 49 of 2004 s. 74(4).] 3.55. Acquisition of land A local government can only take land under Part 9 of the Land Administration Act 1997 if it is in, or is to be regarded as being included in, its own district. [Section 3.55 amended by No. 24 of 2000 s. 22.] 3.56. Tidal waters A local government can only dredge in tidal waters or reclaim land that is at any time covered by tidal waters if it first obtains the consent, in writing, of the Minister responsible for the administration of the Transport Co-ordination Act 1966. 3.57. Tenders for providing goods or services (1) A local government is required to invite tenders before it enters into a contract of a prescribed kind under which another person is to supply goods or services. (2) Regulations may make provision about tenders. 3.58. Disposing of property (1) In this section - dispose includes to sell, lease, or otherwise dispose of, whether absolutely or not; property includes the whole or any part of the interest of a local government in property, but does not include money. (2) Except as stated in this section, a local government can only dispose of property to - (a) the highest bidder at public auction; or (b) the person who at public tender called by the local government makes what is, in the opinion of the local government, the most acceptable tender, whether or not it is the highest tender. (3) A local government can dispose of property other than under subsection (2) if, before agreeing to dispose of the property - (a) it gives local public notice of the proposed disposition - (i) describing the property concerned; and (ii) giving details of the proposed disposition; and (iii) inviting submissions to be made to the local government before a date to be specified in the notice, being a date not less than 2 weeks after the notice is first given; and (b) it considers any submissions made to it before the date specified in the notice and, if its decision is made by the council or a committee, the decision and the reasons for it are recorded in the minutes of the meeting at which the decision was made. (4) The details of a proposed disposition that are required by subsection (3)(a)(ii) include - (a) the names of all other parties concerned; and (b) the consideration to be received by the local government for the disposition; and (c) the market value of the disposition - (i) as ascertained by a valuation carried out not more than 6 months before the proposed disposition; or (ii) as declared by a resolution of the local government on the basis of a valuation carried out more than 6 months before the proposed disposition that the local government believes to be a true indication of the value at the time of the proposed disposition. (5) This section does not apply to - (a) a disposition of an interest in land under the Land Administration Act 1997 section 189 or 190; or (b) a disposition of property in the course of carrying on a trading undertaking as defined in section 3.59; or (c) anything that the local government provides to a particular person, for a fee or otherwise, in the performance of a function that it has under any written law; or (d) any other disposition that is excluded by regulations from the application of this section. [Section 3.58 amended by No. 49 of 2004 s. 27; No. 17 of 2009 s. 10.] 3.59. Commercial enterprises by local governments (1) In this section - acquire has a meaning that accords with the meaning of "dispose"; dispose includes to sell, lease, or otherwise dispose of, whether absolutely or not; land transaction means an agreement, or several agreements for a common purpose, under which a local government is to - (a) acquire or dispose of an interest in land; or (b) develop land; major land transaction means a land transaction other than an exempt land transaction if the total value of - (a) the consideration under the transaction; and (b) anything done by the local government for achieving the purpose of the transaction, is more, or is worth more, than the amount prescribed for the purposes of this definition; major trading undertaking means a trading undertaking that - (a) in the last completed financial year, involved; or (b) in the current financial year or the financial year after the current financial year, is likely to involve, expenditure by the local government of more than the amount prescribed for the purposes of this definition, except an exempt trading undertaking; trading undertaking means an activity carried on by a local government with a view to producing profit to it, or any other activity carried on by it that is of a kind prescribed for the purposes of this definition, but does not include anything referred to in paragraph (a) or (b) of the definition of "land transaction". (2) Before it - (a) commences a major trading undertaking; (b) enters into a major land transaction; or (c) enters into a land transaction that is preparatory to entry into a major land transaction, a local government is to prepare a business plan. (3) The business plan is to include an overall assessment of the major trading undertaking or major land transaction and is to include details of - (a) its expected effect on the provision of facilities and services by the local government; (b) its expected effect on other persons providing facilities and services in the district; (c) its expected financial effect on the local government; (d) its expected effect on matters referred to in the local government's current plan prepared under section 5.56; (e) the ability of the local government to manage the undertaking or the performance of the transaction; and (f) any other matter prescribed for the purposes of this subsection. (4) The local government is to - (a) give Statewide public notice stating that - (i) the local government proposes to commence the major trading undertaking or enter into the major land transaction described in the notice or into a land transaction that is preparatory to that major land transaction; (ii) a copy of the business plan may be inspected or obtained at any place specified in the notice; and (iii) submissions about the proposed undertaking or transaction may be made to the local government before a day to be specified in the notice, being a day that is not less than 6 weeks after the notice is given; and (b) make a copy of the business plan available for public inspection in accordance with the notice. (5) After the last day for submissions, the local government is to consider any submissions made and may decide* to proceed with the undertaking or transaction as proposed or so that it is not significantly different from what was proposed. * Absolute majority required. (5a) A notice under subsection (4) is also to be published and exhibited as if it were a local public notice. (6) If the local government wishes to commence an undertaking or transaction that is significantly different from what was proposed it can only do so after it has complied with this section in respect of its new proposal. (7) The local government can only commence the undertaking or enter into the transaction with the approval of the Minister if it is of a kind for which the regulations require the Minister's approval. (8) A local government can only continue carrying on a trading undertaking after it has become a major trading undertaking if it has complied with the requirements of this section that apply to commencing a major trading undertaking, and for the purpose of applying this section in that case a reference in it to commencing the undertaking includes a reference to continuing the undertaking. (9) A local government can only enter into an agreement, or do anything else, as a result of which a land transaction would become a major land transaction if it has complied with the requirements of this section that apply to entering into a major land transaction, and for the purpose of applying this section in that case a reference in it to entering into the transaction includes a reference to doing anything that would result in the transaction becoming a major land transaction. (10) For the purposes of this section, regulations may - (a) prescribe any land transaction to be an exempt land transaction; (b) prescribe any trading undertaking to be an exempt trading undertaking. [Section 3.59 amended by No. 1 of 1998 s. 12; No. 64 of 1998 s. 18(1) and (2).] 3.60. No capacity to form or acquire control of body corporate A local government cannot form or take part in forming, or acquire an interest giving it the control of, an incorporated company or any other body corporate except a regional local government unless it is permitted to do so by regulations. Division 4 - Regional local governments 3.61. Establishing a regional local government (1) Two or more local governments (referred to in this Division as the participants) may, with the Minister's approval, establish a regional local government to do things, for the participants, for any purpose for which a local government can do things under this Act or any other Act. (2) An application for the Minister's approval is to be - (a) in a form approved for that purpose by the Minister; and (b) accompanied by a copy of an agreement between the participants to establish the regional local government (referred to in this Division as the establishment agreement). (3) The participants are to supply the Minister any further information about the application that the Minister asks for. (4) If the Minister approves the application the Minister is to declare, by notice in the Gazette, that the regional local government is established - (a) on the date; (b) under the name; and (c) for the purpose, set out in the notice. 3.62. Constitution and purpose of a regional local government (1) A regional local government - (a) is a body corporate with perpetual succession and a common seal; and (b) is to have as its governing body a council established under the establishment agreement and consisting of members of the councils of the participants. (2) The purpose for which a regional local government is established (referred to in this Division as the regional purpose) is as set out in the establishment agreement. 3.63. Dissolution or partial dissolution of a regional local government (1) A regional local government is to be wound up - (a) at the direction of the Minister; or (b) in accordance with the establishment agreement. (2) A participant may, in accordance with the establishment agreement, withdraw from the regional local government and cease to be a participant. 3.64. What the establishment agreement is to contain The following matters are to be set out or provided for in the establishment agreement for a regional local government - (a) the name of the regional local government; (b) a description of the region for which the regional local government is established; (c) the number of offices of member on the council of the regional local government and, in respect of each participant, the number of members to be appointed by that participant; (d) the appointment and tenure of members and deputy members of the council of the regional local government; (e) the election or appointment of a chairman and deputy chairman of the regional local government from amongst members of its council and the term of office of a chairman and deputy chairman, which is not to exceed 2 years; (f) the purpose for which the regional local government is established; (g) a means of determining the financial contributions of the participants to the funds of the regional local government; (h) procedures for the winding up of the regional local government or for the withdrawal of a participant from the regional local government; (i) procedures for the division of assets and liabilities between the participants in the event of the regional local government being wound up or a participant withdrawing from the regional local government; (j) a means of resolving disputes between participants as to matters relating to the regional local government; and (k) any other prescribed matter. [Section 3.64 amended by No. 49 of 2004 s. 28; No. 17 of 2009 s. 11.] 3.65. Amendment of establishment agreement (1) The participants may amend the establishment agreement for a regional local government by agreement made with the Minister's approval, and a reference in this Division to the establishment agreement includes a reference to the establishment agreement as so amended. (2) The establishment agreement can be amended under subsection (1) to include another local government as a further participant if that local government is a party to the amending agreement. (3) Section 3.61(2) and (3) apply, with any necessary modifications, to an agreement amending the establishment agreement. 3.66. Application of enabling Acts to a regional local government (1) Except as otherwise stated in this section, this Act and any other Act under which anything can be done for the regional purpose apply in relation to a regional local government as if - (a) the participants' districts together made up a single district; and (b) the regional local government were the local government established for that district. (2) A regional local government can only do things for the regional purpose, and the application of this Act or any other Act under subsection (1) is limited accordingly. (3) The following provisions of this Act do not apply in relation to a regional local government - (a) Part 2 (other than sections 2.7, 2.26, 2.29 and 2.32(e) and Division 7); (b) Part 4; (c) Part 5, Division 2, Subdivision 4; (d) Part 6, Division 6; and (e) any provision prescribed for the purposes of this subsection. (4) Part 6, Division 5, Subdivision 3 does not apply in relation to a regional local government unless the establishment agreement provides that it does. (5) The provisions that do apply in relation to a regional local government apply to it subject to any prescribed modifications and any other necessary modifications. [Section 3.66 amended by No. 49 of 2004 s. 29.] 3.67. Inconsistency between regional and other local laws To the extent that a local law made by a regional local government is inconsistent with a local law made by a local government, the local law made by the regional local government prevails. 3.68. Other arrangements not affected Nothing in this Division prevents local governments from making arrangements under which - (a) a local government performs a function for another local government; or (b) local governments perform a function jointly. Part 4 - Elections and other polls What this Part is about This Part deals with elections of mayors and presidents by electors, elections of councillors, and polls and referendums, and with related matters. In particular - (a) Divisions 2, 3, 4, 5 and 6 describe the different kinds of elections and direct when those elections are to be held; (b) Division 7 is about the officials who conduct elections; (c) Division 8 sets out the qualifications for enrolment to vote at elections; (d) Division 9 deals with the process of preparing for and conducting an election; (e) Division 10 deals with complaints about the results of elections; (f) Division 11 sets out a number of offences in relation to elections and provides for investigation and prosecution of offences; (g) Division 12 deals with polls and referendums. Division 1 - Preliminary 4.1. Terms used in this Part In this Part - election means - (a) an election of a mayor or president by electors; or (b) an election of a councillor or councillors whether in a district or in a ward; election day means the day fixed under this Act for the holding of any poll needed for an election; election notice has the meaning given by section 4.64; electoral officer means a returning officer or a deputy returning officer or electoral officer appointed by a returning officer; electoral requirements means the provisions of this Act about the preparation of electoral rolls, nomination of candidates and other preparations for the holding of elections; electoral roll is a collective term that refers - (a) in the case of a district that has wards, to the ward rolls; and (b) in the case of any district or ward, to the residents roll or rolls and the owners and occupiers roll or rolls, that may form the electoral roll; polling place means - (a) in the case of a voting in person election, a place appointed under section 4.23 for the casting of votes; (b) in the case of a postal election, a place appointed under section 4.23 for the delivery of votes; this Act means this Act or the regulations and this Part means this Part or the regulations made for the purposes of this Part. 4.1A. Conflict with Commonwealth or State election or referendum (1) On a day fixed as polling day for a district or region under the Electoral Act 1907, no election, referendum or other poll is to be held under this Act in, or in any part of, that district or region. (2) On a day fixed for the holding of a referendum, as defined in the Electoral Act 1907, no election, referendum or other poll is to be held under this Act. (3) On a day appointed under the Commonwealth Electoral Act 1918 as polling day for an election of Senators for the State, no election, referendum or other poll is to be held under this Act. (4) On a day appointed as polling day for an election of the House of Representatives for an Electoral Division in the State under the Commonwealth Electoral Act 1918, no election, referendum or other poll is to be held under this Act in, or in any part of, that Electoral Division. (5) On a day fixed as voting day in the State, or an Electoral Division in the State under the Referendum (Machinery Provisions) Act 1984 of the Commonwealth, no election, referendum or other poll is to be held under this Act in the State, or in any part of that Electoral Division, as is relevant. (6) In this section - Electoral Division has the same meaning as it has in the Commonwealth Electoral Act 1918. [Section 4.1A inserted by No. 49 of 2004 s. 30(1).] 4.1B. Polling day may be changed where conflict with Commonwealth or State election or referendum (1) Despite anything else in this Act and subject to subsection (2), where a poll cannot be held on the day fixed under this Act due to section 4.1A, the Governor may, before the day fixed for the poll, by order under section 9.62 fix a later day for the holding of the poll. (2) The time for the holding of a poll is not to be extended under this section by more than 14 days later than the time originally fixed. [Section 4.1B inserted by No. 49 of 2004 s. 30(1).] Division 2 - Inaugural elections 4.2. Inaugural elections (1) When a local government is newly established elections are to be held - (a) to elect the councillors of the first council; and (b) if the method of filling the office of mayor or president is by election by the electors, to elect the first mayor or president. (2) An election under this section is called an inaugural election. 4.3. Polling day for inaugural election (1) Any poll needed for an inaugural election is to be held on a day fixed by the Governor by order under section 9.62. (2) The day fixed is to be a day that is as soon as practicable after the establishment of the local government and allows enough time for the electoral requirements to be complied with, but is not to be later than one year after the establishment of the local government. Division 3 - Ordinary elections 4.4. Ordinary elections (1) When the term of office of an elector mayor or president or a councillor is going to end under the Table to section 2.28 an election to fill the office is to be held. (2) An election under this section is called an ordinary election. (3) This section does not apply to the office of mayor or president if, under section 2.11, the next mayor or president is to be elected by the council. 4.5. Frequency of ordinary elections A local government is to hold ordinary elections every 2 years. 4.6. Election day for ordinary elections Any poll needed for an ordinary election is to be held on the day on which the previous term of office referred to in section 4.4(1) ends. 4.7. Ordinary elections day usually the third Saturday in October (1) The effect of section 4.6 is that - (a) polls for ordinary elections to elect an elector mayor or president will be held on the third Saturday in October every 4 years; and (b) polls for ordinary elections to elect councillors will be held on the third Saturday in October every 2 years. (2) If in respect of a particular year in which ordinary elections are required to be held the Electoral Commissioner is of the opinion that it would not be in the public interest to hold polls for those ordinary elections on the third Saturday in October, the Electoral Commissioner may, by notice in the Gazette, fix a later Saturday in October, or the first, second or third Saturday in November, to be the day for holding any polls needed for those ordinary elections. (3) The election day can be deferred under subsection (2) - (a) for all local governments; (b) for a local government or local governments specified in the notice; or (c) for a class or classes of local governments specified in the notice. (4) In the notice under subsection (2), or by a later notice in the Gazette, the Electoral Commissioner may adjust any time, period or date fixed under this Act to take account of the election day being deferred under subsection (2). [Section 4.7 amended by No. 66 of 2006 s. 6.] Division 4 - Extraordinary elections 4.8. Extraordinary elections (1) If the office of a councillor or of an elector mayor or president becomes vacant under section 2.32 or 2.33 an election to fill the office is to be held. (2) An election is also to be held under this section if section 4.57 or 4.58 so requires. (3) An election under this section is called an extraordinary election. 4.9. Election day for extraordinary election (1) Any poll needed for an extraordinary election is to be held on a day decided on and fixed - (a) by the mayor or president, in writing, if a day has not already been fixed under paragraph (b); or (b) by the council at a meeting held within one month after the vacancy occurs, if a day has not already been fixed under paragraph (a). (2) The election day fixed for an extraordinary election is to be a day that allows enough time for the electoral requirements to be complied with but, unless the Electoral Commissioner approves or section 4.10(b) applies, it cannot be later than 4 months after the vacancy occurs. (3) If at the end of one month after the vacancy occurs an election day has not been fixed, the CEO is to notify the Electoral Commissioner and the Electoral Commissioner is to - (a) fix a day for the holding of the poll that allows enough time for the electoral requirements to be complied with; and (b) advise the CEO of the day fixed. 4.10. Extraordinary election can be held before a resignation has taken effect If a member resigns - (a) the vacancy is to be regarded for the purposes of sections 4.8(1) and 4.9 as occurring when the CEO receives the notice of resignation even if the resignation takes effect on a later day; but (b) the election day fixed for the extraordinary election cannot be earlier than one month before the resignation actually takes effect. Division 5 - Other elections 4.11. Elections after restructure of districts, wards or membership Any poll needed for an election to give effect to an order under section 2.1(1) changing the boundaries of a district or under section 2.2 or 2.18 is to be held on the day fixed by the Governor by order under section 9.62. 4.12. Elections after reinstatement of council Any poll needed for an election to fill offices of members that are vacant when a suspended council is reinstated is to be held on the day fixed by order under section 8.29(4). 4.13. Elections after all members' offices become vacant Any poll needed for an election to fill the vacant offices after the offices of members have been declared vacant under section 2.37 is to be held on the day fixed by order under section 2.37(5). 4.14. Elections after council is dismissed Any poll needed for an election to elect a new council after a council has been dismissed under section 8.25 is to be held on the day fixed by order under section 8.34(1). 4.15. Fresh election after election declared invalid Any poll needed for a fresh election after an election is declared invalid is to be held on the day fixed by the Court of Disputed Returns under section 4.81(3). Division 6 - Postponement and consolidation of elections 4.16. Postponement of elections to allow consolidation (1) This section modifies the operation of sections 4.8, 4.9 and 4.10 in relation to the holding of extraordinary elections. (2) If a member's office becomes vacant under section 2.32 (otherwise than by resignation) on or after the third Saturday in July in an election year and long enough before the ordinary elections day in that year to allow the electoral requirements to be complied with, any poll needed for the extraordinary election to fill the vacancy is to be held on that ordinary elections day. (3) In the case of a member's office becoming vacant under section 2.32 by resignation, if - (a) the resignation takes effect, or is to take effect, on or after the third Saturday in July in an election year but not later than one month after the ordinary elections day in that year; and (b) the CEO receives notice of the resignation long enough before that ordinary elections day to allow the electoral requirements to be complied with, any poll needed for the extraordinary election to fill the vacancy is to be held on that ordinary elections day. (4) If a member's office becomes vacant under section 2.32 - (a) after the third Saturday in January in an election year; but (b) before the third Saturday in July in that election year, the council may, with the approval of the Electoral Commissioner, fix the ordinary elections day in that election year as the day for holding any poll needed for the extraordinary election to fill that vacancy. (5) If a member's office is going to become vacant under section 2.33 and the relevant election as a member of a parliament occurs long enough before the ordinary elections day on which the vacancy will occur to allow the electoral requirements to be complied with, any poll needed for the extraordinary election to fill the vacancy is to be held on that ordinary elections day. [Section 4.16 amended by No. 66 of 2006 s. 7.] 4.17. Cases in which vacant offices can remain unfilled (1) If a member's office becomes vacant under section 2.32 on or after the third Saturday in July in the election year in which the term of the office would have ended under the Table to section 2.28, the vacancy is to remain unfilled and the term of the member who held the office is to be regarded in section 4.6 as ending on the day on which it would have ended if the vacancy had not occurred. (2) If a member's office becomes vacant under section 2.32 - (a) after the third Saturday in January in the election year in which the term of the office would have ended under the Table to section 2.28; but (b) before the third Saturday in July in that election year, the council may, with the approval of the Electoral Commissioner, allow the vacancy to remain unfilled and, in that case, the term of the member who held the office is to be regarded in section 4.6 as ending on the day on which it would have ended if the vacancy had not occurred. (3) If a councillor's office becomes vacant under section 2.32 and under subsection (4A) this subsection applies, the council may, with the approval of the Electoral Commissioner, allow* the vacancy to remain unfilled and, subject to subsection (4), in that case, the term of the member who held the office is to be regarded in section 4.6 as ending on the day on which it would have ended if the vacancy had not occurred. * Absolute majority required. (4A) Subsection (3) applies - (a) if - (i) the office is for a district that has no wards; and (ii) at least 80% of the number of offices of member of the council in the district are still filled; or (b) if - (i) the office is for a ward for which there are 5 or more offices of councillor; and (ii) at least 80% of the number of offices of councillor for the ward are still filled. (4) If an ordinary or an extraordinary election is to be held in a district then an election to fill any vacancy in the office of councillor in that district that was allowed to remain unfilled under subsection (3) is to be held on the same election day and Division 9 applies to those elections as if they were one election to fill all the offices of councillor for the district or ward that need to be filled. [Section 4.17 amended by No. 49 of 2004 s. 31; No. 66 of 2006 s. 8; No. 17 of 2009 s. 12.] 4.18. Certain elections to be held as one (1) This section applies to the following kinds of elections of councillors - (a) ordinary elections; (b) extraordinary elections; (c) elections under section 4.11, 4.12 or 4.13. (2) If in a district or ward the same election day is fixed for elections of more than one kind, Division 9 applies to those elections as if they were one election to fill all the offices of councillor for the district or ward that need to be filled. Division 7 - Provisions about electoral officers and the conduct of elections 4.19. The returning officer The principal electoral office of a local government is that of returning officer. 4.20. CEO to be returning officer unless other arrangements are made (1) Subject to this section the CEO is the returning officer of a local government for each election. (2) A local government may, having first obtained the written agreement of the person concerned and the written approval of the Electoral Commissioner, appoint* a person other than the CEO to be the returning officer of the local government for - (a) an election; or (b) all elections held while the appointment of the person subsists. * Absolute majority required. (3) An appointment under subsection (2) - (a) is to specify the term of the person's appointment; and (b) has no effect if it is made after the 80th day before an election day. (4) A local government may, having first obtained the written agreement of the Electoral Commissioner, declare* the Electoral Commissioner to be responsible for the conduct of an election, or all elections conducted within a particular period of time, and, if such a declaration is made, the Electoral Commissioner is to appoint a person to be the returning officer of the local government for the election or elections. * Absolute majority required. (5) A declaration under subsection (4) has no effect if it is made after the 80th day before election day unless a declaration has already been made in respect of an election for the local government and the declaration is in respect of an additional election for the same local government. (6) A declaration made under subsection (4) on or before the 80th day before election day cannot be rescinded after that 80th day. [Section 4.20 amended by No. 64 of 1998 s. 19(1); No. 49 of 2004 s. 16(4) and 32(1)-(4).] 4.21. Deputy returning officers (1) A returning officer appointed under section 4.20(1) or (2) is to appoint one or more deputy returning officers. (2) If the returning officer is appointed under section 4.20(4), the Electoral Commissioner is to appoint one or more deputy returning officers. 4.22. Returning officer to conduct elections (1) An election is to be conducted by the returning officer of the local government for that election. (2) In the case of a returning officer appointed under section 4.20(4), the returning officer is to conduct the election for and under the direction of the Electoral Commissioner. (3) If the returning officer is absent or cannot perform his or her functions a deputy returning officer is to perform the returning officer's functions. 4.23. Returning officer's functions The returning officer's functions are - (a) to appoint places for the casting of votes, places for the delivery of postal votes and places for the counting of votes for elections (within or outside the district); (b) to appoint other electoral officers to assist in the conduct of elections; (c) to ensure that the necessary preparations are made for the conduct of elections; (d) to do anything which the returning officer is authorised or required to do under this Act or which is necessary or expedient in order to ensure that elections are conducted in accordance with this Act; and (e) in the case of a returning officer appointed under section 4.20(4), to do other things if directed to do so by the Electoral Commissioner. 4.24. Electoral Commissioner's functions The Electoral Commissioner's functions under this Act are to do anything which the Electoral Commissioner is authorised or required to do under this Act and, where the Electoral Commissioner is responsible for the conduct of the election, to do anything which is necessary or expedient for the proper and efficient conduct of the election. 4.25. Access to information The Electoral Commissioner and the returning officer are to have access to any relevant information of a local government in order to perform their functions under this Act. 4.26. Delegation (1) The Electoral Commissioner may delegate any of his or her powers or duties under this Act (except this power of delegation) to another person. (2) A returning officer may delegate any of his or her powers or duties under this Act (except this power of delegation) to a deputy returning officer. (3) Delegations must be in writing. 4.27. Regulations about electoral officers and the conduct of elections (1) Regulations may include provisions - (a) about the appointment of returning officers under section 4.20(4), and deputy returning officers under section 4.21(2), and their removal or suspension by the Electoral Commissioner; (b) about the appointment, removal or suspension of electoral officers by returning officers; (c) about the declarations to be made by electoral officers; and (d) setting out functions to be performed by local governments, CEOs and returning officers to ensure the proper and efficient conduct of elections. (2) Despite any other written law, the decision of the Electoral Commissioner or a returning officer about the appointment, removal or suspension of an electoral officer is final. 4.28. Fees and expenses A local government is to - (a) pay fees to the electoral officers, in accordance with regulations, for conducting an election; (b) meet expenses incurred by the electoral officers in connection with an election; and (c) if a declaration under section 4.20(4) has been made in relation to the election, meet the expenses of the Electoral Commissioner in connection with the election to the extent required by regulations. Division 8 - Eligibility for enrolment 4.29. Eligibility of residents to be enrolled (1) A person is eligible to be enrolled to vote at elections for a district or ward (the electorate) if the person is enrolled as an elector for the Legislative Assembly in respect of a residence in the electorate. (2) For the purposes of subsection (1) a person is to be regarded as being enrolled as an elector for the Legislative Assembly even if his or her name has been omitted in error from the relevant electoral roll under the Electoral Act 1907. 4.30. Eligibility of non-resident owners and occupiers to be enrolled (1) A person is eligible to be enrolled to vote at elections for a district or ward (the electorate) if the person - (a) is enrolled as an elector for the Legislative Assembly or the House of Representatives in respect of a residence outside the electorate; and (b) owns or occupies rateable property within the electorate; and (c) has made a successful eligibility claim that still has effect under section 4.33. (2) For the purposes of subsection (1)(a) a person is to be regarded as being enrolled as an elector for the Legislative Assembly or the House of Representatives even if his or her name has been omitted in error from an electoral roll under the Electoral Act 1907 or the Commonwealth Electoral Act 1918. (3) For the purposes of subsection (1)(c) an eligibility claim is successful if it is accepted under section 4.32, whether or not the acceptance is before the close of enrolments, as defined in section 4.39(1). (4) A person who is eligible under subsection (1) to vote at an election held less than 50 days after the commencement of the Local Government Amendment Act 2009 section 13 is eligible to vote at that election. [Section 4.30 amended by No. 17 of 2009 s. 13.] 4.31. Rateable property: ownership and occupation (1) For the purposes of this Division, the following provisions apply in relation to rateable property and its ownership and occupation - Property divided by district boundaries (a) Section 4.30 applies even if part of the rateable property is situated in another district. Property divided by ward boundaries (b) If an enrolment eligibility claim is made in respect of rateable property situated partly in one ward and partly in another ward or wards, it is to be regarded for the purposes of that claim as being in - (i) the ward nominated by the owner or occupier making the claim; or (ii) if no nomination is made, the ward determined by the CEO. Right of occupation (c) A person occupies rateable property if, and only if, the person has a right of continuous occupation under a lease, tenancy agreement or other legal instrument. Separate occupancies (d) A reference to the occupation of rateable property includes a reference to the occupation of - (i) a separate building or portion of a building on the rateable property; or (ii) some other separate and distinguishable portion of the rateable property. Joint owners (e) If more than 2 people own rateable property in conjunction with each other, the owners are whichever 2 of those people who, being eligible under section 4.30(1)(a), are nominated as owners by all or a majority of those people. Joint occupiers (f) If more than 2 people occupy rateable property in conjunction with each other, the occupiers are whichever 2 of those people who, being eligible under section 4.30(1)(a), are nominated as occupiers by all or a majority of those people. Corporate ownership or occupation (g) If a body corporate owns or occupies rateable property, the owners or occupiers are 2 people who, being eligible under section 4.30(1)(a), are nominated as owners or occupiers by the body corporate. One nomination for all property in the district (h) A nomination under paragraph (e), (f) or (g) applies in respect of any and all other rateable property in the district that is owned or occupied by the people or body corporate concerned. (2) Regulations may include provisions about how nominations under subsection (1) are made and how long they remain in effect. 4.32. How to claim eligibility to enrol under section 4.30 (1) A person who considers that he or she is eligible under section 4.30(1)(a) and (b) may make an enrolment eligibility claim in respect of the district or ward. (2) The claim is to be made to the CEO in accordance with regulations. (3) A claim for enrolment as an occupier cannot be made or accepted unless, when the claim is made, the claimant has a right of occupation as referred to in section 4.31(1)(c) for at least the next 3 months and, if so prescribed, is liable to pay rent in respect of that occupation of at least the prescribed amount. (4) Except as provided for in subsection (5A), within 14 days after receiving the claim the CEO is to decide whether or not the claimant is eligible under section 4.30(1)(a) and (b) and accept or reject the claim accordingly. (5A) If a claim is made before the close of enrolments as defined in section 4.39(1), but less than 14 days before the close of nominations as defined in section 4.49(a), the CEO is to decide whether to accept or reject the claim before the close of nominations. (5) The CEO can make any inquiries needed in order to make a decision. (6) The CEO is to record the decision in a register kept for that purpose in accordance with regulations and is to give written notice of the decision to the claimant without delay. (7) If the claim is rejected the notice has to set out the CEO's reasons for the decision. (8) A person who is dissatisfied with the CEO's decision may appeal to the Electoral Commissioner in accordance with regulations and the Electoral Commissioner can confirm or reverse the decision. (9) On receipt of advice of the Electoral Commissioner's decision on an appeal, the CEO is to take any action that is necessary to give effect to that decision. [Section 4.32 amended by No. 64 of 1998 s. 20; No. 49 of 2004 s. 33; No. 17 of 2009 s. 14.] 4.33. Expiry of claim of eligibility to enrol under section 4.30 (1) If an enrolment eligibility claim made by a person on the basis of ownership of rateable property within the electorate is accepted under section 4.32(4) or (8), the claim expires when the person ceases to own the property to which the claim relates. [(1a) deleted] (2A) Unless subsection (2B) or (3) applies, if an enrolment eligibility claim made by a person on the basis of occupation of rateable property within the electorate is accepted under section 4.32(4) or (8), the claim expires on the day 6 months after the holding of the second ordinary elections of the local government after the claim is accepted. (2B) If an enrolment eligibility claim on the basis of occupation of rateable property within the electorate is - (a) made within the period of 49 days before the election day for ordinary elections of the local government; and (b) accepted under section 4.32(4) or (8) before the election day, the claim expires on the day 6 months after the holding of the third ordinary elections of the local government after the claim is accepted. (2) For the purpose of subsection (2A) or (2B), an election that would have been held on a particular day but for the suspension of the council of the local government is to be regarded as having been held on that day. (3) If the day on which an enrolment eligibility claim would expire under subsection (2A) or (2B) is less than 50 days before an election at which the occupier would be eligible to vote, the enrolment eligibility claim does not expire until the day after that election day. [Section 4.33 amended by No. 64 of 1998 s. 21; No. 49 of 2004 s. 34; No. 17 of 2009 s. 15.] 4.34. Accuracy of enrolment details to be maintained The CEO is to ensure that the information about electors that is recorded from enrolment eligibility claims is maintained in an up to date and accurate form. 4.35. Decision that eligibility to enrol under section 4.30 has ended (1) The CEO may decide that a person is no longer eligible under section 4.30 to be enrolled to vote at elections for a district or ward if - (a) the person has given the CEO written notice that the person is no longer eligible to be so enrolled; (b) the CEO is satisfied that the person is dead; or (c) the CEO is satisfied that the person is no longer eligible to be so enrolled. (2) The CEO is to give written notice to the person before making a decision under subsection (1)(c) and is to allow 28 days for the person to make submissions on the matter. (3) If the CEO makes a decision under subsection (1)(c) the CEO is to give written notice of it to the person. (4) If dissatisfied with the decision, the person may appeal to the Electoral Commissioner in accordance with regulations and the Electoral Commissioner can confirm or reverse the decision. (5) On receipt of advice of the Electoral Commissioner's decision on an appeal, the CEO is to take any action that is necessary to give effect to that decision. (6) If, after considering submissions made under subsection (2), the CEO decides that the person is still eligible under section 4.30 to be enrolled to vote at elections for the district or ward, the CEO is to give written notice of that decision to the person. (7) The CEO is to record any decision under subsection (1) or (6) in the register referred to in section 4.32(6). [Section 4.35 amended by No. 49 of 2004 s. 35.] Division 9 - The electoral process 4.36. Application and definitions (1) This Division applies to the following stages in the preparation for, and conduct of, an election - Stage 1 - Preparing the electoral roll Stage 2 - Nomination of candidates Stage 3 - After nominations close Stage 4 - Preparing for voting Stage 5 - Voting Stage 6 - Counting the votes Stage 7 - Declaring the result. (2) In this Division the election referred to in subsection (1) is referred to as the election. Stage 1 - Preparing the electoral roll 4.37. New roll for each election (1) An electoral roll is to be prepared for the election. (2) If the district is not divided into wards the same electoral roll can be used for the election of an elector mayor or president and the election of a councillor or councillors. (3) A new electoral roll need not be prepared for the election if - (a) it is an extraordinary election the election day for which is less than 100 days after the election day for another election; and (b) the CEO, with the approval of the Electoral Commissioner, decides that the roll that was used for the earlier election is suitable for use at the extraordinary election. [Section 4.37 amended by No. 49 of 2004 s. 36.] 4.38. What the roll consists of (1) The electoral roll for the election is to consist of a residents roll and an owners and occupiers roll but these can be consolidated for the purposes of the election in accordance with regulations. (2) Regulations are to include provisions about the form of rolls (e.g. consolidated rolls, district rolls, ward rolls, combined ward rolls), the details that they are to contain and the arrangement of those details, and can provide for cases in which details may be omitted for the protection of an elector or his or her family. 4.39. Close of enrolments (1) In order to be included on the electoral roll for the election a person must be an elector of the district or ward, as the case requires, as at 5 p.m. on the 50th day before election day (the close of enrolments). (2) On or after the 70th day, but not later than on the 56th day, before election day the CEO is to give Statewide public notice of the time and date of the close of enrolments. (3) The notice is to give details of the steps that a person can take to become an elector before the close of enrolments [i.e. enrolling as an elector for the Legislative Assembly in respect of a residence in the district or ward (section 4.29) or making an enrolment eligibility claim in respect of the district or ward (sections 4.30 and 4.32)]. (4) If, under section 4.37(3), a previous electoral roll is going to be used for the election, no notice is to be published under subsection (2). [Section 4.39 amended by No. 64 of 1998 s. 22.] 4.40. Residents roll (1) Subject to section 4.37(3), on or before the 56th day before election day, the CEO is to advise the Electoral Commissioner of the need to prepare a residents roll for the election. (2) On or before the 36th day before election day, the Electoral Commissioner is to prepare a residents roll for the election and forward a copy of it to the CEO. (3) The residents roll is to include the names of all persons who were electors of the district or ward under section 4.29 at the close of enrolments (other than persons who will be under 18 years of age on election day) and is to be certified to that effect by the Electoral Commissioner. [Section 4.40 amended by No. 66 of 2006 s. 9.] 4.41. Owners and occupiers roll (1) On or before the 36th day before election day, the CEO is to prepare an owners and occupiers roll for the election. (2) The owners and occupiers roll is to include the names of all persons who were electors of the district or ward under section 4.30 at the close of enrolments (other than persons who will be under 18 years of age on election day) and is to be certified to that effect by the CEO. [Section 4.41 amended by No. 66 of 2006 s. 10.] 4.42. Supply of rolls to returning officer, members and candidates (1) The CEO is to ensure that the returning officer has as many copies of the residents and owners and occupiers rolls as he or she may require for the purposes of the election. (2) Copies of rolls are to be supplied, free of charge, to members of the council and candidates in accordance with regulations. 4.43. Correction of rolls (1) On or before the 22nd day before election day the returning officer is to delete from the owners and occupiers roll the name of any person whose name also appears on the residents roll. (2) Subsection (1) does not apply if the rolls have been consolidated. (3) The returning officer may alter the residents and owners and occupiers rolls - (a) by including the name of an elector whose name has been omitted in error; (b) by omitting the name of a person whose name has been included in error; or (c) in any other manner that may be necessary to correct the rolls. (3a) If the returning officer is not the CEO, the returning officer may direct the CEO to make the alterations to the rolls described in subsections (1) and (3) and the CEO is to comply with that direction. (3b) If a roll is altered under this section or section 4.44A after it has been supplied under section 4.42(2) to members of the council and candidates, the returning officer is to supply details of the alteration to those members and candidates in accordance with regulations. (4) Regulations may provide for the making of applications to have rolls corrected, the certification of corrections and procedures to be followed in altering or correcting the rolls. [Section 4.43 amended by No. 64 of 1998 s. 23; No. 49 of 2004 s. 37; No. 17 of 2009 s. 16.] 4.44A. Alteration of rolls (1) The returning officer may alter the owners and occupiers roll by including the name of an elector whose enrolment eligibility claim was made under section 4.32(1) before the close of enrolments, as defined in section 4.39(1), but accepted after that time. (2) If the returning officer is not the CEO, the returning officer may direct the CEO to make an alteration to the roll described in subsection (1) and the CEO is to comply with that direction. [Section 4.44A inserted No. 17 of 2009 s. 17.] 4.44. One enrolment per roll An elector's name is not to appear more than once on the same electoral roll. 4.45. Failure to comply with time limits as to preparation of rolls (1) If anything required by this Act to be done in connection with the preparation of an electoral roll has not been done within the time, or for the period or before the date allowed or required under this Act, the Minister may, by notice published in the Gazette - (a) direct it to be done; and (b) adjust any time period or date fixed under this Act in order to enable it to be done. (2) When an omission or non-compliance is rectified in accordance with a notice under subsection (1), the electoral roll is validated as set out in the notice. (3) A notice under this section has effect in accordance with its terms despite anything in this Act. 4.46. Fresh roll may be required (1) If the Minister is satisfied that an electoral roll has not been properly prepared in accordance with this Division, the Minister may, by notice published in the Gazette, direct that a fresh electoral roll be prepared in accordance with directions set out in the notice. (2) An electoral roll prepared under subsection (1) supersedes a previous electoral roll. (3) A notice under this section has effect in accordance with its terms despite anything in this Act. Stage 2 - Nomination of candidates 4.47. Call for nominations (1) Statewide public notice calling for nominations of candidates for the election is to be given by the returning officer on or after the 56th day, but not later than on the 45th day, before election day. (2) The notice calling for nominations is to specify - (a) the kind of election to be held and the vacancy or vacancies to be filled; (b) the place where nominations may be delivered or sent (the nomination place); (c) the period within which nominations have to be delivered or sent; and (d) any other arrangements made for the receipt by the returning officer of nominations. 4.48. Eligibility to be a candidate (1) If the election is to fill an office or offices of councillor, a person can only be a candidate if the person was an elector of the district who, as at the close of enrolments, was qualified under section 2.19 to be elected as a member of the council and, at the time of nomination - (a) the person is qualified under section 2.19 to be elected as a member of the council; (b) the person is not a candidate in another election to fill an office or offices of councillor on the council; and (c) the person is not the holder of an office of member of a council other than an office the term of which will end on, or before, election day. (2) If the election is to fill the office of elector mayor or president, a person can only be a candidate if the person was an elector of the district who, as at the close of enrolments and at the time of nomination, was qualified under section 2.19 to be elected as a member of the council. [Section 4.48 amended by No. 49 of 2004 s. 38(1) and (2); No. 17 of 2009 s. 18.] 4.49. How to make an effective nomination The nomination of a candidate is only effective if - (a) a completed nomination paper, in the prescribed form, is received by the returning officer at the nomination place (by delivery, post, facsimile or other prescribed means) within the period beginning on the 44th day before election day and ending at 4 p.m. on the 37th day before election day (the close of nominations); (b) a profile of the candidate, prepared in accordance with regulations, accompanies the nomination paper; (c) evidence that the nomination is made by or with the consent of the candidate is given to the returning officer in a prescribed manner on or with the nomination paper or before the close of nominations; and (d) payment of the prescribed deposit in a prescribed manner is received by the returning officer when the nomination paper is received or before the close of nominations. [Section 4.49 amended by No. 49 of 2004 s. 39.] 4.50. How deposits are dealt with A deposit is to be dealt with in accordance with regulations and is refundable in such circumstances as are set out in regulations. 4.51. Rejection of nomination (1) The returning officer is to reject a nomination if - (a) it is not effective under section 4.49; (b) the candidate is not an elector of the district or was not an elector of the district as at the close of enrolments; (ba) as at the close of enrolments, the candidate was not qualified to be elected as a member of a council due to section 2.19(2); or (c) in the case of a candidate for election as a councillor, the candidate is not eligible to be a candidate because of section 4.48(1)(b) or (c). (2) If none of subsection (1)(a), (b) or (c) apply the returning officer is to accept the nomination. (3) Despite subsection (1)(a), if the profile of the candidate does not meet the requirements of regulations, the returning officer may amend the profile to meet those requirements and accept the nomination with the amended profile. (4) If the returning officer rejects a nomination or amends a profile the returning officer is to give written notice of the decision, and the reasons for it, to the candidate without delay. [Section 4.51 amended by No. 49 of 2004 s. 40.] 4.52. Exhibition of candidates' details and profiles (1) If a nomination is accepted, the returning officer is to ensure that the details and profile of the candidate are exhibited to the public (with the details and profiles of any other candidates) on a notice board at the local government's offices. (2) The details and profiles are to remain on exhibition - (a) if section 4.55 or 4.57(2)(a) apply, until the result is declared under section 4.77; or (b) otherwise, until 6 p.m. on election day. (3) In this section - details, in relation to a candidate, means - (a) the candidate's name; (b) the name to appear on the ballot paper; (c) the ward (if any) in respect of which the candidate has nominated; (d) the office for which the candidate has nominated; and (e) the type of election in which the candidate has nominated. [Section 4.52 inserted by No. 64 of 1998 s. 24(1).] 4.53. Cancellation of nominations (1) The nomination of a candidate is cancelled if the candidate withdraws the nomination or dies before the close of nominations. (2) The withdrawal of a nomination is only effective if - (a) written notice of it is received by the returning officer at the nomination place (by delivery, post, facsimile or other prescribed means) before the close of nominations; and (b) evidence that the withdrawal is made by or with the consent of the candidate is given to the returning officer in a prescribed manner on or with the withdrawal notice or before the close of nominations. (3) If a nomination is cancelled the details and profile of the candidate are to be removed from exhibition under section 4.52 and notice of the cancellation is to be exhibited until the close of nominations. (4) If a person who is a candidate in both an election to fill the office of mayor or president and an election to fill an office or offices of councillor on the council is elected unopposed under section 4.55 to fill the office of mayor or president, the nomination of the person as a candidate in the other election is to be regarded for the purposes of this Act as having been cancelled immediately before the close of nominations. [Section 4.53 amended by No. 64 of 1998 s. 24(2).] Stage 3 - After nominations close 4.54. Nominations to be declared (1) As soon as possible after nominations have closed the returning officer is to declare the nominations that have been accepted and have not been cancelled. (2) The declaration is to be made at the nomination place in the presence of any candidates and other people who wish to attend. 4.55. Same number of candidates as vacancies If, at the close of nominations, the number of candidates is equal to the number of offices to be filled at the election, the candidate or candidates is or are elected unopposed. 4.56. More candidates than vacancies If, at the close of nominations, the number of candidates is greater than the number of offices to be filled at the election - (a) lots are to be drawn in accordance with regulations for the positions of the candidates on the ballot papers for the election; and (b) the returning officer is to begin preparing for voting by the electors. 4.57. Less candidates than vacancies (1) If, at the close of nominations, there are no candidates for the office or offices to be filled at the election, an extraordinary election is to be held to fill the office or offices as if it or they had become vacant on the day after the close of nominations. (2) If, at the close of nominations, the number of candidates is less than the number of offices to be filled at the election - (a) the candidate or candidates is or are elected; and (b) an extraordinary election is to be held to fill the remaining office or offices as if it or they had become vacant on the day after the close of nominations. (3) If, at the close of nominations for an extraordinary election required under subsection (1) or (2) there are no candidates or the number of candidates is less than the number of offices to be filled at the election, the council may appoint* to any unfilled office a person who would be eligible to be a candidate for election to the office and who is willing to accept the appointment. * Absolute majority required. (4) A person appointed under subsection (3) is to be regarded as having been elected. 4.58. Death of candidate after close of nominations (1) If section 4.56 applies and a candidate dies after the close of nominations but before the vacant office or offices is or are filled, the election is void and an extraordinary election is to be held to fill the office or offices as if it or they had become vacant on the death of the candidate. (2) If a candidate who has been elected dies before his or her term of office begins, an extraordinary election is to be held to fill the office to which the candidate had been elected as if it had become vacant on the death of the candidate. 4.59. Regulations about candidates Regulations may provide for - (a) the provision of information as to gifts made to or for the benefit of candidates; and (b) the control of the electioneering activities and practices of candidates; and (c) the provision of information as to expenditure incurred in relation to an election by or for the benefit of candidates. [Section 4.59 amended by No. 17 of 2009 s. 19.] Stage 4 - Preparing for voting 4.60. Voting by electors If section 4.56 applies and the election is not void under section 4.58(1), the electors may vote to elect a candidate or candidates to fill the vacant office or offices. 4.61. Choice of methods of conducting the election (1) The election can be conducted as a - postal election which is an election at which the method of casting votes is by posting or delivering them to an electoral officer on or before election day; or voting in person election which is an election at which the principal method of casting votes is by voting in person on election day but at which votes can also be cast in person before election day, or posted or delivered, in accordance with regulations. (2) The local government may decide* to conduct the election as a postal election. * Absolute majority required. (3) A decision under subsection (2) has no effect if it is made after the 80th day before election day unless a declaration has already been made in respect of an election for the local government and the declaration is in respect of an additional election for the same local government. (4) A decision under subsection (2) has no effect unless it is made after a declaration is made under section 4.20(4) that the Electoral Commissioner is to be responsible for the conduct of the election or in conjunction with such a declaration. (5) A decision made under subsection (2) on or before the 80th day before election day cannot be rescinded after that 80th day. (6) For the purposes of this Act, the poll for an election is to be regarded as having been held on election day even though the election is conducted as a postal election. (7) Unless a resolution under subsection (2) has effect, the election is to be conducted as a voting in person election. [Section 4.61 amended by No. 64 of 1998 s. 25; No. 49 of 2004 s. 16(4) and 32(5).] 4.62. Polling places required (1) For every election in a district or a ward the returning officer is to ensure that there will be at least one polling place in the district that is open between 8 a.m. and 6 p.m. on election day. (2) For a voting in person election in a district that is divided into wards, the returning officer is to ensure that there will be at least one polling place in each ward that is open between 8 a.m. and 6 p.m. on election day unless the returning officer determines that, in respect of a particular ward, it is not necessary or not practicable - (a) to open a polling place in that ward on election day; or (b) for there to be a polling place in that ward that is open all the time between 8 a.m. and 6 p.m. on election day. (3) For a voting in person election in a ward the returning officer is to ensure that there will be at least one polling place in the ward that is open between 8 a.m. and 6 p.m. on election day unless the returning officer determines that it is not necessary or not practicable - (a) to open a polling place in that ward on election day; or (b) for there to be a polling place in that ward that is open all the time between 8 a.m. and 6 p.m. on election day. 4.63. Appointment of presiding and other officers (1) The electoral officers appointed by the returning officer are to include a presiding officer and one or more other electoral officers for each polling place. (2) The returning officer may appoint himself or herself to be the presiding officer for a polling place. 4.64. Public notice about the election (1) As soon as practicable after preparations for the election have been completed (but not later than on the 19th day before election day) the returning officer is to give Statewide public notice about the election in accordance with regulations including details of how, when and where the election will be conducted and who the candidates are. (2) The Statewide public notice is called the election notice. Stage 5 - Voting 4.65. Right to vote (1) An elector may vote at the election if the elector's name - (a) is on the electoral roll used for the election; or (b) was omitted in error from the electoral roll used for the election. (2) If an elector's name has changed, the reference in subsection (1) to the elector's name includes a reference to the former name. (3) A person who is not an elector, or who is under 18 years of age on election day, cannot vote at the election even if the person's name is on the electoral roll used for the election. [Section 4.65 amended by No. 66 of 2006 s. 11.] 4.66. One vote for each elector An elector is not to vote more than once at the election. 4.67. Where to vote in person In a voting in person election - (a) a vote (absent vote) may be cast before election day at the offices of another local government in such circumstances as are set out in regulations; (b) a vote (early vote) may be cast before election day at the local government's offices, or at a place notified for that purpose in the election notice, in such circumstances as are set out in regulations; (c) a vote in person on election day may be cast at a polling place appointed for the election. 4.68. When to vote (1) In a voting in person election - (a) an elector may cast an early or absent vote as soon as the election notice is given; (b) an early vote may be cast not later than 4 p.m. on the day before election day; (c) an absent vote may be cast not later than 4 p.m. on the 4th day before election day; (d) a postal vote may be posted or delivered at any time after the relevant voting papers are issued but can only be accepted if it is received by an electoral officer in accordance with regulations not later than 6 p.m. on election day; (e) a vote in person on election day may be cast between 8 a.m. and 6 p.m. (2) In a postal election a vote may be posted or delivered at any time after the relevant voting papers are issued but can only be accepted if it is received by an electoral officer in accordance with regulations not later than 6 p.m. on election day 4.69. How to vote (1) If only one office is to be filled at the election, an elector is to cast his or her vote by marking the ballot paper in accordance with regulations so as to indicate the candidate named on the ballot paper whom the elector wishes to be elected. (2) If 2 or more offices are to be filled at the election, an elector is to cast his or her vote by marking the ballot paper in accordance with regulations so as to indicate the candidate or candidates named on the ballot paper whom the elector wishes to be elected but is not to mark votes for more candidates than the number of offices to be filled. [(3) Deleted] [Section 4.69 amended by No. 9 of 2007 s. 4; No. 15 of 2009 s. 4.] 4.70. Presiding officer to maintain order at polling place (1) The presiding officer is in charge of a polling place and has power to take any reasonable steps to ensure that voting is conducted in a peaceful and orderly manner. (2) Without limiting subsection (1) the presiding officer may remove or exclude from the polling place any person who is disrupting or may disrupt the poll. (3) For the purposes of this section the presiding officer may call on a member of the Police Force for assistance and a member of the Police Force is to render assistance if called on to do so. 4.71. Regulations about voting procedure (1) Regulations are to include provisions about - (a) the form, content and printing of voting papers; (b) measures to ensure that, so far as practicable, all electors who can vote are issued with voting papers for postal votes for a postal election; (c) applying for and issuing postal votes for a voting in person election (and may provide for applications to have effect for successive elections); (d) completing, transmitting and dealing with voting papers for postal votes; (e) applying for, issuing, completing, and dealing with voting papers for absent votes and early votes; (f) issuing, completing and dealing with ballot papers for votes cast in person on election day; (g) measures to be taken to ensure that ballot papers are marked in secret; (h) the design, preparation, use, supervision and security of ballot boxes for the receipt of ballot papers; (i) the assistance that may be given to electors who are unable to vote without assistance; (j) the appointment of scrutineers for candidates and the rights and obligations of scrutineers; (k) the adjournment of the poll in the case of riot, violence or other cause; and (l) any other matter relating to the casting of votes at elections or to votes so cast. (2) In this section - voting papers means ballot papers and any other forms, declarations, envelopes, candidates' profiles or other papers associated with ballot papers. Stage 6 - Counting the votes 4.72. Outcome of election to be determined (1) As soon as is practicable after voting has finished the returning officer is to arrange for the votes to be counted and ascertain the result of the election. (2) The votes are to be counted at the place or places notified for the purpose in the election notice or, if that is impracticable because of riot, violence or other cause, at any other place appointed by the returning officer. (3) Subject to any directions of the returning officer, candidates and scrutineers may be present when the votes are counted. 4.73. Procedure when a person is a candidate in 2 elections (1) If the election is to fill the office of mayor or president and any candidate is also a candidate in an election to fill an office or offices of councillor on the council held on the same election day, the result of the election for mayor or president is to be ascertained before the result of the other election is ascertained. (2) If the election is to fill an office or offices of councillor and any candidate has been elected to fill the office of mayor or president on the council at an election held on the same election day, that candidate cannot be elected to an office of councillor. (3) When subsection (2) applies, if the number of other candidates is equal to the number of offices to be filled at the election - (a) the other candidate or candidates is or are elected unopposed; and (b) the votes are to be counted - (i) only if 2 or more of the councillors elected at that election will retire on different days; and (ii) only for the purpose of applying the provisions of Schedule 4.2 about the order of retirement of councillors. (4) When subsection (2) applies, if the number of other candidates is greater than the number of offices to be filled at the election, the counting of votes is to proceed. (5) When votes are counted under subsection (3)(b) or (4), any vote marked for the candidate who has been elected to fill the office of mayor or president is to be disregarded. [Section 4.73 amended by No. 64 of 1998 s. 26.] 4.74. How votes are counted The votes are to be counted, and the result of the election ascertained, in accordance with Schedule 4.1. 4.75. Giving effect to the elector's wishes (1) The returning officer may accept a ballot paper that, in his or her opinion, clearly indicates the elector's wishes as required or authorised by section 4.69 even if the ballot paper is not marked precisely in accordance with regulations. (2) In accepting a ballot paper under subsection (1) the returning officer, if appointed under section 4.20(4), is to have regard and give effect to any directions or guidelines given by the Electoral Commissioner. 4.76. Review of decisions on ballot papers Unless a Court of Disputed Returns decides otherwise, the returning officer's decision about the acceptance or rejection of a ballot paper is final but this does not prevent the returning officer from reviewing the decision in the course of a re-count of votes. Stage 7 - Declaring the result 4.77. Returning officer to declare result As soon as is practicable after the result of the election is known under section 4.55, 4.57 or 4.72, the returning officer is to declare and give notice of the result in accordance with regulations. 4.78. Order of retirement of councillors (1) If the election is to fill an office or offices of councillor, the returning officer, when declaring the result, is to declare the term for which and, if necessary, the vacant office to which, each successful candidate is elected. (2) For the purpose of subsection (1) the returning officer is to make any determination that is necessary to give effect to the provisions of Schedule 4.2 about the order of retirement of councillors. 4.79. Report to Minister (1) A returning officer is to provide the Minister with a report as to the result of the election. (2) The report under subsection (1) - (a) is to be provided within the prescribed period; and (b) is to deal with the matters prescribed for the purposes of subsection (1). (3) On being directed by the Minister to do so the returning officer, if appointed under section 4.20(1) or (2), is to provide the Minister with a report on the conduct of the election dealing with the matters set out in the direction or prescribed for the purposes of this subsection. (4) If the Electoral Commissioner is responsible for the conduct of the election, the Electoral Commissioner may provide the Minister with a report on the conduct of the election. Division 10 - Validity of elections 4.80. Complaints about the result of an election (1) A person who is dissatisfied with the result of an election or with the way in which an election was conducted may make an invalidity complaint. (2) An invalidity complaint is a complaint that an election is invalid, or that another person should be declared elected, or that the term of office of a councillor should be longer or shorter than the term determined by the returning officer. 4.81. Complaints to go to a Court of Disputed Returns (1) An invalidity complaint is to be made to a Court of Disputed Returns, constituted by a magistrate, but can only be made within 28 days after notice is given of the result of the election. (2) Regulations may provide for the way in which an invalidity complaint can be made to a Court of Disputed Returns, the way in which the court can deal with it and the declarations and orders that the court can make. (3) If the court declares the election to have been invalid - (a) the election is null and void; (b) any office of member filled at the election is vacant; (c) the court is to fix a day for holding any poll needed for a fresh election; and (d) the returning officer is to prepare for, conduct and ascertain and declare the result of the fresh election. (4) If the court declares that a person (candidate A) ought to have been elected in place of another person (candidate B) - (a) candidate B is not to act as a member of the council; (b) candidate A is to be regarded as having been elected; and (c) notice of candidate A's election is to be published in accordance with regulations. 4.82. No appeal There is no appeal from a decision of a Court of Disputed Returns. 4.83. Certain defects do not affect an election An election is not invalid because of - (a) a failure to do something in connection with the election within the time, or for the period or before the date allowed or required under this Act, so long as the failure does not affect the result of the election; (b) an irregularity or defect in the appointment or authorisation of an electoral officer; or (c) a formal omission, irregularity or defect in a document, declaration, publication or other thing that a person has made, issued or done in good faith. 4.84. Regulations about retention and availability of electoral papers Regulations may include provisions about - (a) the collection, retention and disposal of papers used in or for the purposes of an election; and (b) the purposes for which and circumstances in which those papers may be inspected. Division 11 - Electoral offences 4.85. Bribery and undue influence (1) A person who - (a) promises, offers or suggests a reward for, or on account of, or to induce, electoral conduct or a promise of electoral conduct; or (b) gives, takes or seeks a reward for, or on account of, electoral conduct or a promise of electoral conduct, commits an offence. Penalty: $10 000 or imprisonment for 2 years. (2) A person who - (a) threatens, offers or suggests detriment for, or on account of, or to induce, electoral conduct or a promise of electoral conduct; (b) uses, causes, inflicts or procures detriment for or on account of, electoral conduct; or (c) interferes with the free exercise of the franchise of an elector, commits an offence. Penalty: $10 000 or imprisonment for 2 years. (3) The making of a declaration of public policy or a promise of public action does not give rise to an offence against this section. (4) In this section - detriment means violence, injury, punishment, damage, loss or disadvantage; electoral conduct means - (a) candidature at an election; (b) withdrawal of candidature from an election; (c) a vote, or an omission to vote, at an election; or (d) support of, or opposition to, a candidate for election; reward means a reward in the form of valuable consideration or any other recompense, benefit or advantage. 4.86. Breach or neglect by officers An electoral officer who - (a) attempts to influence the vote of an elector, or, except by recording that vote, the result of an election; (b) discloses, except under compulsion of law, knowledge officially acquired concerning the vote of an elector; or (c) refuses or wilfully neglects to discharge a duty imposed under this Part or otherwise contravenes a provision of this Part, commits an offence. Penalty: $10 000 or imprisonment for 2 years. 4.87. Printing and publication of electoral material (1) A person who prints, publishes or distributes electoral material or causes electoral material to be printed, published or distributed, commits an offence unless - (a) in the case of all electoral material, the name and address (not being a post-office box) of the person who authorised the electoral material appears at the end of the electoral material; and (b) in the case of electoral material that is printed otherwise than in a newspaper, the name and business address of the printer appears at the end of the electoral material. Penalty: $2 000. (2) Subsection (1) does not apply to electoral material on an item included in a prescribed class of items. (3) In this section - electoral material means any advertisement, handbill, pamphlet, notice, letter or article that is intended or calculated to affect the result of an election but does not include an advertisement in a newspaper announcing the holding of a meeting; print includes photocopy or reproduce by any means. [Section 4.87 amended by No. 49 of 2004 s. 41.] 4.88. Misleading, false or defamatory statements (1) A person who, during the relevant period in relation to an election - (a) prints, publishes or distributes deceptive material or causes deceptive material to be printed, published or distributed; or (b) makes or publishes any false or defamatory statement in relation to the personal character or conduct of a candidate in the election or causes such a statement to be made or published, commits an offence. Penalty: $5 000 or imprisonment for one year. (2) It is a defence to a charge under subsection (1)(a) to prove that the accused person did not know, and could not reasonably have been expected to know, that the material was likely to mislead or deceive an elector in relation to the casting of the elector's vote. (3) It is a defence to a charge under subsection (1)(b) to prove that the accused person believed the statement to be true and had reasonable grounds for doing so. (4) In this section - deceptive material means any matter or thing that is likely to mislead or deceive an elector in relation to the casting of the elector's vote at the election; print includes photocopy or reproduce by any means; publish includes publish by radio or television; relevant period means the period commencing when notice calling for nominations for the election is published and ending at 6 p.m. on election day. 4.89. No canvassing in or near polling places (1) If, on any day on which polling for an election takes place, a person - (a) canvasses for votes; (b) solicits the vote of an elector; (c) induces an elector not to vote for a particular candidate; or (d) induces an elector not to vote at the election, in a polling place or within 6 metres from the entrance to a polling place, that person commits an offence. Penalty: $2 000. (2) It is a defence to a charge under subsection (1) to prove that the accused person was within 6 metres of the entrance to a polling place with the approval of the presiding officer. [Section 4.89 amended by No. 64 of 1998 s. 27.] 4.90. False statements (1) A person who makes a statement in an application, form, nomination, return, declaration or certificate or other document under this Part relating to an election, or in answer to a question authorised to be asked under this Part, knowing the statement to be false, commits an offence. Penalty: $5 000 or imprisonment for one year. (2) A person who induces another person to commit an offence against subsection (1) also commits an offence against subsection (1). 4.91. Offences relating to nomination papers, ballot papers and ballot boxes (1) A person who - (a) forges or fraudulently defaces or destroys a ballot paper or nomination paper; (b) fraudulently puts a ballot paper into a ballot box; (c) wilfully destroys, takes, opens or otherwise interferes with any ballot box or ballot papers without authority; or (d) personates any elector, commits an offence. Penalty: $10 000 or imprisonment for 2 years. (2) A person who - (a) supplies a ballot paper without authority; (b) is in possession of an unauthorised ballot paper; (c) votes more than once in an election; or (d) marks a ballot paper without authority, commits an offence. Penalty: $5 000 or imprisonment for one year. (3) A person who fraudulently leaves a polling place with a ballot paper commits an offence. Penalty: $2 000. 4.92. Offences relating to postal votes A candidate in an election, or a person expressly authorised to act on behalf of a candidate in connection with an election, who, in relation to the election - (a) applies undue influence or pressure on an elector to apply for a postal vote; (b) interferes with an elector while the elector is applying for a postal vote; (c) takes custody of an envelope in which there is a postal vote; or (d) causes any other person, not being the elector whose vote is in the envelope, to do anything referred to in paragraph (c), commits an offence. Penalty: $5 000 or imprisonment for one year. 4.93. Interference with electors: infringement of secrecy A person who - (a) unlawfully communicates with, assists or interferes with an elector while the elector is marking a ballot paper; (b) unlawfully looks at or becomes acquainted with the vote of an elector; or (c) discloses the vote of an elector, commits an offence. Penalty: $5 000 or imprisonment for one year. 4.94. Other electoral offences A person who - (a) when in a polling place on a day on which polling is taking place, misconducts himself or herself or fails to obey the reasonable instructions of an electoral officer; (b) re-enters a polling place without permission after being removed from the polling place under section 4.70; (c) not being a candidate in an election, canvasses at the election while he or she is an employee of the local government in question; (d) wilfully defaces, mutilates, destroys or removes a notice, list or other document which an electoral officer, acting within the scope of his or her authority, has exhibited or caused to be exhibited; or (e) bets on the result of an election, commits an offence. Penalty: $2 000. 4.95. Attempts to commit offences An attempt to commit an offence against this Part is an offence punishable as if the offence had been committed. 4.96. Investigation of electoral misconduct (1) The Electoral Commissioner or the returning officer may investigate whether misconduct, malpractice or maladministration has occurred in relation to an election. (2) An investigation can be carried out on the initiative of the Electoral Commissioner or returning officer or in response to a complaint or information received from any other person (including a candidate). (3) For the purposes of an investigation the Electoral Commissioner or returning officer has the same powers, and protection from liability, as an authorised person has under Part 8, Division 1. (4) Section 8.11 applies in relation to a direction given by the Electoral Commissioner or returning officer in the course of an investigation. (5) After carrying out an investigation under this section the Electoral Commissioner may provide the Minister with a report on the investigation. (6) After carrying out an investigation under this section the returning officer is to provide the Minister with a report on the investigation. (7) This section has effect in addition to Part 8 and does not prevent or affect the exercise of any power under that Part. 4.97. Prosecutions (1) A prosecution for an offence against this Part may be commenced by the returning officer or any person referred to in section 9.24(1). (2) If the returning officer commences a prosecution for an offence against this Part - (a) the local government is to pay any expenses incurred by, and any costs awarded against, the returning officer in connection with the proceedings; and (b) the returning officer is to pay to the local government any fees or costs paid to the returning officer in respect of the proceedings. [Section 4.97 inserted by No. 84 of 2004 s. 53.] 4.98. Criminal Code not to apply Chapter XIV of The Criminal Code does not apply to elections held under this Act. Division 12 - Polls and referendums 4.99. Election procedures to apply to polls and referendums (1) To the extent to which the provisions of this Part are capable of being applied with or without adaptation in respect of polls under another Part, those provisions apply with or without adaptation in respect of those polls. (2) Despite subsection (1), regulations may make necessary or convenient provisions in relation to preparing for, conducting and ascertaining the result of polls under another Part of this Act and for ensuring the purity of the conduct of them. (3) Regulations may make necessary or convenient provisions in relation to preparing for, conducting and ascertaining the result of polls and referendums held by local governments, whether under local laws or otherwise, and for ensuring the purity of the conduct of them. (4) Without limiting subsection (2) or (3), regulations may provide for the electoral rolls that are to be used, or prepared and used, for polls and referendums. Part 5 - Administration What this Part is about This Part deals with - (a) council meetings, committees and their meetings and electors' meetings; (b) the employment of persons by local governments and matters relating to local government employees; (c) annual reports and plans; (d) the disclosure of financial interests in matters affecting local government decisions and in returns; (e) public access to local government information; (f) the limitation of the payment of fees, expenses and allowances to council and committee members, mayors and presidents; and (g) codes of conduct. [Description amended by No. 49 of 2004 s. 42(1).] Division 1 - Introduction 5.1. Term used in this Part In this Part, unless the contrary intention appears - committee means a committee of a council. 5.2. Administration of local governments The council of a local government is to ensure that there is an appropriate structure for administering the local government. Division 2 - Council meetings, committees and their meetings and electors' meetings Subdivision 1 - Council meetings 5.3. Ordinary and special council meetings (1) A council is to hold ordinary meetings and may hold special meetings. (2) Ordinary meetings are to be held not more than 3 months apart. (3) If a council fails to meet as required by subsection (2) the CEO is to notify the Minister of that failure. 5.4. Calling council meetings An ordinary or a special meeting of a council is to be held - (a) if called for by either - (i) the mayor or president; or (ii) at least 1/3 of the councillors, in a notice to the CEO setting out the date and purpose of the proposed meeting; or (b) if so decided by the council. 5.5. Convening council meetings (1) The CEO is to convene an ordinary meeting by giving each council member at least 72 hours' notice of the date, time and place of the meeting and an agenda for the meeting. (2) The CEO is to convene a special meeting by giving each council member notice, before the meeting, of the date, time, place and purpose of the meeting. 5.6. Who presides at council meetings (1) The mayor or president is to preside at all meetings of the council. (2) If the circumstances mentioned in section 5.34(a) or (b) apply the deputy mayor or deputy president may preside at a meeting of the council in accordance with that section. (3) If the circumstances mentioned in section 5.34(a) or (b) apply and - (a) the office of deputy mayor or deputy president is vacant; or (b) the deputy mayor or deputy president is not available or is unable or unwilling to perform the functions of mayor or president, then, the council is to choose one of the councillors present to preside at the meeting. 5.7. Minister may reduce number for quorum and certain majorities (1) The Minister may reduce the number of offices of member required for a quorum at a council meeting specified by the Minister if there would not otherwise be a quorum for the meeting. (2) The Minister may reduce the number of offices of member required at a council meeting to make a decision specified by the Minister if the decision is one which would otherwise be required to be made by an absolute majority and a sufficient number of members would not otherwise be present at the meeting. Subdivision 2 - Committees and their meetings 5.8. Establishment of committees A local government may establish* committees of 3 or more persons to assist the council and to exercise the powers and discharge the duties of the local government that can be delegated to committees. * Absolute majority required. 5.9. Types of committees (1) In this section - other person means a person who is not a council member or an employee. (2) A committee is to comprise - (a) council members only; (b) council members and employees; (c) council members, employees and other persons; (d) council members and other persons; (e) employees and other persons; or (f) other persons only. 5.10. Appointment of committee members (1) A committee is to have as its members - (a) persons appointed* by the local government to be members of the committee (other than those referred to in paragraph (b)); and (b) persons who are appointed to be members of the committee under subsection (4) or (5). * Absolute majority required. (2) At any given time each council member is entitled to be a member of at least one committee referred to in section 5.9(2)(a) or (b) and if a council member nominates himself or herself to be a member of such a committee or committees, the local government is to include that council member in the persons appointed under subsection (1)(a) to at least one of those committees as the local government decides. (3) Section 52 of the Interpretation Act 1984 applies to appointments of committee members other than those appointed under subsection (4) or (5) but any power exercised under section 52(1) of that Act can only be exercised on the decision of an absolute majority of the local government. (4) If at a meeting of the council a local government is to make an appointment to a committee that has or could have a council member as a member and the mayor or president informs the local government of his or her wish to be a member of the committee, the local government is to appoint the mayor or president to be a member of the committee. (5) If at a meeting of the council a local government is to make an appointment to a committee that has or will have an employee as a member and the CEO informs the local government of his or her wish - (a) to be a member of the committee; or (b) that a representative of the CEO be a member of the committee, the local government is to appoint the CEO or the CEO's representative, as the case may be, to be a member of the committee. 5.11A. Deputy committee members (1) The local government may appoint* a person to be a deputy of a member of a committee and may terminate such an appointment* at any time. * Absolute majority required. (2) A person who is appointed as a deputy of a member of a committee is to be - (a) if the member of the committee is a council member - a council member; or (b) if the member of the committee is an employee - an employee; or (c) if the member of the committee is not a council member or an employee - a person who is not a council member or an employee; or (d) if the member of the committee is a person appointed under section 5.10(5) - a person nominated by the CEO. (3) A deputy of a member of a committee may perform the functions of the member when the member is unable to do so by reason of illness, absence or other cause. (4) A deputy of a member of a committee, while acting as a member, has all the functions of and all the protection given to a member. [Section 5.11A inserted by No. 17 of 2009 s. 20.] 5.11. Tenure of committee membership (1) Where a person is appointed as a member of a committee under section 5.10(4) or (5), the person's membership of the committee continues until - (a) the person no longer holds the office by virtue of which the person became a member, or is no longer the CEO, or the CEO's representative, as the case may be; (b) the person resigns from membership of the committee; (c) the committee is disbanded; or (d) the next ordinary elections day, whichever happens first. (2) Where a person is appointed as a member of a committee other than under section 5.10(4) or (5), the person's membership of the committee continues until - (a) the term of the person's appointment as a committee member expires; (b) the local government removes the person from the office of committee member or the office of committee member otherwise becomes vacant; (c) the committee is disbanded; or (d) the next ordinary elections day, whichever happens first. 5.12. Election of presiding members and deputies (1) The members of a committee are to elect a presiding member from amongst themselves in accordance with Schedule 2.3, Division 1 as if the references in that Schedule - (a) to "office" were references to "office of presiding member"; (b) to "council" were references to "committee"; and (c) to "councillors" were references to "committee members". (2) The members of a committee may elect a deputy presiding member from amongst themselves but any such election is to be in accordance with Schedule 2.3, Division 2 as if the references in that Schedule - (a) to "office" were references to "office of deputy presiding member"; (b) to "council" were references to "committee"; (c) to "councillors" were references to "committee members"; and (d) to "mayor or president" were references to "presiding member". 5.13. Functions of deputy presiding members If, in relation to the presiding member of a committee - (a) the office of presiding member is vacant; or (b) the presiding member is not available or is unable or unwilling to perform the functions of presiding member, then the deputy presiding member, if any, may perform the functions of presiding member. 5.14. Who acts if no presiding member If, in relation to the presiding member of a committee - (a) the office of presiding member and the office of deputy presiding member are vacant; or (b) the presiding member and the deputy presiding member, if any, are not available or are unable or unwilling to perform the functions of presiding member, then the committee members present at the meeting are to choose one of themselves to preside at the meeting. 5.15. Reduction of quorum for committees The local government may reduce* the number of offices of committee member required for a quorum at a committee meeting specified by the local government if there would not otherwise be a quorum for the meeting. * Absolute majority required. 5.16. Delegation of some powers and duties to certain committees (1) Under and subject to section 5.17, a local government may delegate* to a committee any of its powers and duties other than this power of delegation. * Absolute majority required. (2) A delegation under this section is to be in writing and may be general or as otherwise provided in the instrument of delegation. (3) Without limiting the application of sections 58 and 59 of the Interpretation Act 1984 - (a) a delegation made under this section has effect for the period of time specified in the delegation or if no period has been specified, indefinitely; and (b) any decision to amend or revoke a delegation under this section is to be by an absolute majority. (4) Nothing in this section is to be read as preventing a local government from performing any of its functions by acting through another person. 5.17. Limits on delegation of powers and duties to certain committees (1) A local government can delegate - (a) to a committee comprising council members only, any of the council's powers or duties under this Act except - (i) any power or duty that requires a decision of an absolute majority or a 75% majority of the local government; and (ii) any other power or duty that is prescribed; (b) to a committee comprising council members and employees, any of the local government's powers or duties that can be delegated to the CEO under Division 4; and (c) to a committee referred to in section 5.9(2)(c), (d) or (e), any of the local government's powers or duties that are necessary or convenient for the proper management of - (i) the local government's property; or (ii) an event in which the local government is involved. (2) A local government cannot delegate any of its powers or duties to a committee referred to in section 5.9(2)(f). [Section 5.17 amended by No. 49 of 2004 s. 16(2).] 5.18. Register of delegations to committees A local government is to keep a register of the delegations made under this Division and review the delegations at least once every financial year. Subdivision 3 - Matters affecting council and committee meetings 5.19. Quorum for meetings The quorum for a meeting of a council or committee is at least 50% of the number of offices (whether vacant or not) of member of the council or the committee. 5.20. Decisions of councils and committees (1) A decision of a council does not have effect unless it has been made by a simple majority or, if another kind of majority is required under any provision of this Act or has been prescribed by regulations or a local law for the particular kind of decision, by that kind of majority. (2) A decision of a committee does not have effect unless it has been made by a simple majority or, if another kind of majority has been prescribed by regulations or a local law for the particular kind of decision, by that kind of majority. (3) This section does not apply to elections - (a) by a council of the local government's mayor or president under section 2.11; (b) by a council of the local government's deputy mayor or president under section 2.15; or (c) by a committee of the committee's presiding member or deputy presiding member under section 5.12. 5.21. Voting (1) Each council member and each member of a committee who is present at a meeting of the council or committee is entitled to one vote. (2) Subject to section 5.67, each council member and each member of a committee to which a local government power or duty has been delegated who is present at a meeting of the council or committee is to vote. (3) If the votes of members present at a council or a committee meeting are equally divided, the person presiding is to cast a second vote. (4) If a member of a council or a committee specifically requests that there be recorded - (a) his or her vote; or (b) the vote of all members present, on a matter voted on at a meeting of the council or the committee, the person presiding is to cause the vote or votes, as the case may be, to be recorded in the minutes. (5) A person who fails to comply with subsection (2) or (3) commits an offence. [Section 5.21 amended by No. 49 of 2004 s. 43.] 5.22. Minutes of council and committee meetings (1) The person presiding at a meeting of a council or a committee is to cause minutes to be kept of the meeting's proceedings. (2) The minutes of a meeting of a council or a committee are to be submitted to the next ordinary meeting of the council or the committee, as the case requires, for confirmation. (3) The person presiding at the meeting at which the minutes are confirmed is to sign the minutes and certify the confirmation. 5.23. Meetings generally open to the public (1) Subject to subsection (2), the following are to be open to members of the public - (a) all council meetings; and (b) all meetings of any committee to which a local government power or duty has been delegated. (2) If a meeting is being held by a council or by a committee referred to in subsection (1)(b), the council or committee may close to members of the public the meeting, or part of the meeting, if the meeting or the part of the meeting deals with any of the following - (a) a matter affecting an employee or employees; (b) the personal affairs of any person; (c) a contract entered into, or which may be entered into, by the local government and which relates to a matter to be discussed at the meeting; (d) legal advice obtained, or which may be obtained, by the local government and which relates to a matter to be discussed at the meeting; (e) a matter that if disclosed, would reveal - (i) a trade secret; (ii) information that has a commercial value to a person; or (iii) information about the business, professional, commercial or financial affairs of a person, where the trade secret or information is held by, or is about, a person other than the local government; (f) a matter that if disclosed, could be reasonably expected to - (i) impair the effectiveness of any lawful method or procedure for preventing, detecting, investigating or dealing with any contravention or possible contravention of the law; (ii) endanger the security of the local government's property; or (iii) prejudice the maintenance or enforcement of a lawful measure for protecting public safety; (g) information which is the subject of a direction given under section 23(1a) of the Parliamentary Commissioner Act 1971; and (h) such other matters as may be prescribed. (3) A decision to close a meeting or part of a meeting and the reason for the decision are to be recorded in the minutes of the meeting. 5.24. Question time for the public (1) Time is to be allocated for questions to be raised by members of the public and responded to at - (a) every ordinary meeting of a council; and (b) such other meetings of councils or committees as may be prescribed. (2) Procedures and the minimum time to be allocated for the asking of and responding to questions raised by members of the public at council or committee meetings are to be in accordance with regulations. 5.25. Regulations about council and committee meetings and committees (1) Without limiting the generality of section 9.59, regulations may make provision in relation to - (a) the matters to be dealt with at ordinary or at special meetings of councils; (b) the functions of committees or types of committee; (ba) the holding of council or committee meetings by telephone, video conference or other electronic means; (c) the procedure to be followed at, and in respect of, council or committee meetings; (d) methods of voting at council or committee meetings; (e) the circumstances and manner in which a decision made at a council or a committee meeting may be revoked or changed (which may differ from the manner in which the decision was made); (f) the content and confirmation of minutes of council or committee meetings and the keeping and preserving of the minutes and any documents relating to meetings; (g) the giving of public notice of the date and agenda for council or committee meetings; (h) the exclusion from meetings of persons whose conduct is not conducive to the proper conduct of the meetings and the steps to be taken in the event of persons refusing to leave meetings; (i) the circumstances and time in which the unconfirmed minutes of council or committee meetings are to be made available for inspection by members of the public; and (j) the circumstances and time in which notice papers and agenda relating to any council or committee meeting and reports and other documents which could be - (i) tabled at a council or committee meeting; or (ii) produced by the local government or a committee for presentation at a council or committee meeting, are to be made available for inspection by members of the public. (2) Regulations providing for meetings to be held by telephone, video conference or other electronic means may modify the application of this Act in relation to those meetings to the extent necessary or convenient to facilitate the holding of those meetings in that way. [Section 5.25 amended by No. 64 of 1998 s. 28.] Subdivision 4 - Electors' meetings 5.26. Term used in this Subdivision In this Subdivision - electors includes ratepayers. 5.27. Electors' general meetings (1) A general meeting of the electors of a district is to be held once every financial year. (2) A general meeting is to be held on a day selected by the local government but not more than 56 days after the local government accepts the annual report for the previous financial year. (3) The matters to be discussed at general electors' meetings are to be those prescribed. 5.28. Electors' special meetings (1) A special meeting of the electors of a district is to be held on the request of not less than - (a) 100 electors or 5% of the number of electors -whichever is the lesser number; or (b) 1/3 of the number of council members. (2) The request is to specify the matters to be discussed at the meeting and the form or content of the request is to be in accordance with regulations. (3) The request is to be sent to the mayor or president. (4) A special meeting is to be held on a day selected by the mayor or president but not more than 35 days after the day on which he or she received the request. 5.29. Convening electors' meetings (1) The CEO is to convene an electors' meeting by giving - (a) at least 14 days' local public notice; and (b) each council member at least 14 days' notice, of the date, time, place and purpose of the meeting. (2) The local public notice referred to in subsection (1)(a) is to be treated as having commenced at the time of publication of the notice under section 1.7(1)(a) and is to continue by way of exhibition under section 1.7(1)(b) and (c) until the meeting has been held. 5.30. Who presides at electors' meetings (1) The mayor or president is to preside at electors' meetings. (2) If the circumstances mentioned in section 5.34(a) or (b) apply the deputy mayor or deputy president may preside at an electors' meeting in accordance with that section. (3) If the circumstances mentioned in section 5.34(a) or (b) apply and - (a) the office of deputy mayor or deputy president is vacant; or (b) the deputy mayor or deputy president is not available or is unable or unwilling to perform the functions of mayor or president, then the electors present are to choose one of the councillors present to preside at the meeting but if there is no councillor present, able and willing to preside, then the electors present are to choose one of themselves to preside. 5.31. Procedure for electors' meetings The procedure to be followed at, and in respect of, electors' meetings and the methods of voting at electors' meetings are to be in accordance with regulations. 5.32. Minutes of electors' meetings The CEO is to - (a) cause minutes of the proceedings at an electors' meeting to be kept and preserved; and (b) ensure that copies of the minutes are made available for inspection by members of the public before the council meeting at which decisions made at the electors' meeting are first considered. 5.33. Decisions made at electors' meetings (1) All decisions made at an electors' meeting are to be considered at the next ordinary council meeting or, if that is not practicable - (a) at the first ordinary council meeting after that meeting; or (b) at a special meeting called for that purpose, whichever happens first. (2) If at a meeting of the council a local government makes a decision in response to a decision made at an electors' meeting, the reasons for the decision are to be recorded in the minutes of the council meeting. Division 3 - Acting for the mayor or president 5.34. When deputy mayors and deputy presidents can act If - (a) the office of mayor or president is vacant; or (b) the mayor or president is not available or is unable or unwilling to perform the functions of the mayor or president, then the deputy mayor may perform the functions of mayor and the deputy president may perform the functions of president, as the case requires. 5.35. Who acts if no mayor, president or deputy (1) If the circumstances mentioned in section 5.34(a) or (b) apply and - (a) the office of deputy mayor or deputy president is vacant; or (b) the deputy mayor or deputy president is not available or is unable or unwilling to perform the functions of mayor or president, and the mayor or president or deputy will not be able to perform the functions of the mayor or president for a time known to the council, then the council may appoint a councillor to perform during that time the functions of mayor or president, as the case requires. (2) If the circumstances mentioned in section 5.34(a) or (b) apply and - (a) the office of deputy mayor or deputy president is vacant; or (b) the deputy mayor or deputy president is not available or is unable or unwilling to perform the functions of mayor or president, and a person has not been appointed under subsection (1), the CEO, after consultation with, and obtaining the agreement of, 2 councillors selected by the CEO, may perform the functions of mayor or president, as the case requires. Division 4 - Local government employees 5.36. Local government employees (1) A local government is to employ - (a) a person to be the CEO of the local government; and (b) such other persons as the council believes are necessary to enable the functions of the local government and the functions of the council to be performed. (2) A person is not to be employed in the position of CEO unless the council - (a) believes that the person is suitably qualified for the position; and (b) is satisfied* with the provisions of the proposed employment contract. * Absolute majority required. (3) A person is not to be employed by a local government in any other position unless the CEO - (a) believes that the person is suitably qualified for the position; and (b) is satisfied with the proposed arrangements relating to the person's employment. (4) Unless subsection (5A) applies, if the position of CEO of a local government becomes vacant, it is to be advertised by the local government in the manner prescribed, and the advertisement is to contain such information with respect to the position as is prescribed. (5A) Subsection (4) does not require a position to be advertised if it is proposed that the position be filled by a person in a prescribed class. (5) For the avoidance of doubt, subsection (4) does not impose a requirement to advertise a position before the renewal of a contract referred to in section 5.39. [Section 5.36 amended by No. 49 of 2004 s. 44; No. 17 of 2009 s. 21.] 5.37. Senior employees (1) A local government may designate employees or persons belonging to a class of employee to be senior employees. (2) The CEO is to inform the council of each proposal to employ or dismiss a senior employee, other than a senior employee referred to in section 5.39(1a), and the council may accept or reject the CEO's recommendation but if the council rejects a recommendation, it is to inform the CEO of the reasons for its doing so. (3) Unless subsection (4A) applies, if the position of a senior employee of a local government becomes vacant, it is to be advertised by the local government in the manner prescribed, and the advertisement is to contain such information with respect to the position as is prescribed. (4A) Subsection (3) does not require a position to be advertised if it is proposed that the position be filled by a person in a prescribed class. (4) For the avoidance of doubt, subsection (3) does not impose a requirement to advertise a position where a contract referred to in section 5.39 is renewed. [Section 5.37 amended by No. 49 of 2004 s. 45 and 46(4) ; No. 17 of 2009 s. 22.] 5.38. Annual review of certain employees' performances The performance of each employee who is employed for a term of more than one year, including the CEO and each senior employee, is to be reviewed at least once in relation to every year of the employment. 5.39. Contracts for CEO's and senior employees (1) Subject to subsection (1a), the employment of a person who is a CEO or a senior employee is to be governed by a written contract in accordance with this section. (1a) Despite subsection (1) - (a) an employee may act in the position of a CEO or a senior employee for a term not exceeding one year without a written contract for the position in which he or she is acting; and (b) a person may be employed by a local government as a senior employee for a term not exceeding 3 months, during any 2 year period, without a written contract. (2) A contract under this section - (a) in the case of an acting or temporary position, cannot be for a term exceeding one year; (b) in every other case, cannot be for a term exceeding 5 years. (3) A contract under this section is of no effect unless - (a) the expiry date is specified in the contract; (b) there are specified in the contract performance criteria for the purpose of reviewing the person's performance; and (c) any other matter that has been prescribed as a matter to be included in the contract has been included. (4) A contract under this section is to be renewable and subject to subsection (5), may be varied. (5) A provision in, or condition of, an agreement or arrangement has no effect if it purports to affect the application of any provision of this section. (6) Nothing in subsection (2) or (3)(a) prevents a contract for a period that is within the limits set out in subsection 2(a) or (b) from being terminated within that period on the happening of an event specified in the contract. (7) A report made by the Salaries and Allowances Tribunal, under section 7A of the Salaries and Allowances Act 1975, containing recommendations as to the remuneration to be paid or provided to a CEO is to be taken into account by the local government before entering into, or renewing, a contract of employment with a CEO. [Section 5.39 amended by No. 49 of 2004 s. 46(1)-(3).] 5.40. Principles affecting employment by local governments The following principles apply to a local government in respect of its employees - (a) employees are to be selected and promoted in accordance with the principles of merit and equity; (b) no power with regard to matters affecting employees is to be exercised on the basis of nepotism or patronage; (c) employees are to be treated fairly and consistently; (d) there is to be no unlawful discrimination against employees or persons seeking employment by a local government on a ground referred to in the Equal Opportunity Act 1984 or on any other ground; (e) employees are to be provided with safe and healthy working conditions in accordance with the Occupational Safety and Health Act 1984; and (f) such other principles, not inconsistent with this Division, as may be prescribed. 5.41. Functions of CEO The CEO's functions are to - (a) advise the council in relation to the functions of a local government under this Act and other written laws; (b) ensure that advice and information is available to the council so that informed decisions can be made; (c) cause council decisions to be implemented; (d) manage the day to day operations of the local government; (e) liaise with the mayor or president on the local government's affairs and the performance of the local government's functions; (f) speak on behalf of the local government if the mayor or president agrees; (g) be responsible for the employment, management supervision, direction and dismissal of other employees (subject to section 5.37(2) in relation to senior employees); (h) ensure that records and documents of the local government are properly kept for the purposes of this Act and any other written law; and (i) perform any other function specified or delegated by the local government or imposed under this Act or any other written law as a function to be performed by the CEO. 5.42. Delegation of some powers and duties to CEO (1) A local government may delegate* to the CEO the exercise of any of its powers or the discharge of any of its duties under this Act other than those referred to in section 5.43. * Absolute majority required. (2) A delegation under this section is to be in writing and may be general or as otherwise provided in the instrument of delegation. [Section 5.42 amended by No. 1 of 1998 s. 13.] 5.43. Limits on delegations to CEO's A local government cannot delegate to a CEO any of the following powers or duties - (a) any power or duty that requires a decision of an absolute majority or a 75% majority of the local government; (b) accepting a tender which exceeds an amount determined by the local government for the purpose of this paragraph; (c) appointing an auditor; (d) acquiring or disposing of any property valued at an amount exceeding an amount determined by the local government for the purpose of this paragraph; (e) any of the local government's powers under section 5.98, 5.98A, 5.99, 5.99A or 5.100; (f) borrowing money on behalf of the local government; (g) hearing or determining an objection of a kind referred to in section 9.5; (ha) the power under section 9.49A(4) to authorise a person to sign documents on behalf of the local government; (h) any power or duty that requires the approval of the Minister or the Governor; (i) such other powers or duties as may be prescribed. [Section 5.43 amended by No. 49 of 2004 s. 16(3) and 47; No. 17 of 2009 s. 23.] 5.44. CEO may delegate powers and duties to other employees (1) A CEO may delegate to any employee of the local government the exercise of any of the CEO's powers or the discharge of any of the CEO's duties under this Act other than this power of delegation. (2) A delegation under this section is to be in writing and may be general or as otherwise provided in the instrument of delegation. (3) This section extends to a power or duty the exercise or discharge of which has been delegated by a local government to the CEO under section 5.42, but in the case of such a power or duty - (a) the CEO's power under this section to delegate the exercise of that power or the discharge of that duty; and (b) the exercise of that power or the discharge of that duty by the CEO's delegate, are subject to any conditions imposed by the local government on its delegation to the CEO. (4) Subsection (3)(b) does not limit the CEO's power to impose conditions or further conditions on a delegation under this section. (5) In subsections (3) and (4) - conditions includes qualifications, limitations or exceptions. [Section 5.44 amended by No. 1 of 1998 s. 14(1).] 5.45. Other matters relevant to delegations under this Division (1) Without limiting the application of sections 58 and 59 of the Interpretation Act 1984 - (a) a delegation made under this Division has effect for the period of time specified in the delegation or where no period has been specified, indefinitely; and (b) any decision to amend or revoke a delegation by a local government under this Division is to be by an absolute majority. (2) Nothing in this Division is to be read as preventing - (a) a local government from performing any of its functions by acting through a person other than the CEO; or (b) a CEO from performing any of his or her functions by acting through another person. 5.46. Register of, and records relevant to, delegations to CEO's and employees (1) The CEO is to keep a register of the delegations made under this Division to the CEO and to employees. (2) At least once every financial year, delegations made under this Division are to be reviewed by the delegator. (3) A person to whom a power or duty is delegated under this Act is to keep records in accordance with regulations in relation to the exercise of the power or the discharge of the duty. 5.47. Superannuation regulations The Governor may make regulations about any matter relating to the provision of superannuation by a local government. [Section 5.47 inserted by No. 17 of 2009 s. 24.] 5.48. Long service benefits for employees and employees of local government associations (1) In this section - employee includes an employee of WALGA; long service benefit means any of the following - (a) long service leave with pay; (b) long service leave taken on a pro rata basis with pay; or (c) payment in lieu of long service leave. (2) Long service benefits for employees are to be provided in accordance with regulations. [Section 5.48 amended by No. 17 of 2009 s. 25.] 5.49. Workers' compensation arrangement (1) In this section - arrangement means the group self-insurance arrangement established under subsection (2); eligible body means - (a) a local government; (b) a regional local government; or (c) any other body with functions relating to local government approved in writing by the Minister; WCIM Act means the Workers' Compensation and Injury Management Act 1981; WorkCover WA has the same meaning as it has in the WCIM Act. (2) WALGA is to establish and manage, for the benefit of itself and any eligible body that chooses to participate, a group self-insurance arrangement against liability to pay compensation under the WCIM Act. (3) Subsection (2) does not apply unless the group of participants in the arrangement is exempted under section 164 of the WCIM Act. (4) If an eligible body wishes to join or leave the arrangement, WALGA is to apply to WorkCover WA to seek a variation in the group exemption. (5) Participants in the arrangement are jointly and severally liable for a liability of any participant to pay compensation under the WCIM Act, being a liability in relation to which that participant is exempted under section 164 of that Act from the requirement to insure. (6) WALGA is to dissolve the arrangement if exemption of the group under section 164 of the WCIM Act is cancelled. (7) Nothing in this section limits the application of the WCIM Act. [Section 5.49 amended by No. 42 of 2004 s. 165; No. 49 of 2004 s. 12.] 5.50. Payments to employees in addition to contract or award (1) A local government is to prepare a policy in relation to employees whose employment with the local government is finishing, setting out - (a) the circumstances in which the local government will pay an employee an amount in addition to any amount to which the employee is entitled under a contract of employment or award relating to the employee; and (b) the manner of assessment of the additional amount, and cause local public notice to be given in relation to the policy. (1a) A local government must not make any payment of the kind described in subsection (1)(a) unless the local government has adopted a policy prepared under subsection (1). (2) A local government may make a payment - (a) to an employee whose employment with the local government is finishing; and (b) that is more than the additional amount set out in the policy prepared under subsection (1) and adopted by the local government, but local public notice is to be given in relation to the payment made. (3) The value of a payment or payments made to a person under this section is not to exceed such amount as is prescribed or provided for by regulations. (4) In this section a reference to a payment to a person includes a reference to the disposition of property in favour of, or the conferral of any other financial benefit on, the person. [Section 5.50 amended by No. 64 of 1998 s. 29.] 5.51. Employee who nominates for election to council to take leave (1) If an employee of a local government nominates to be a candidate for election as a member of the council and the nomination is accepted then, by operation of this subsection, the employee is to be treated as being on leave from his or her employment on and from the day that the nomination is accepted until the day of the declaration of the poll or, if the nomination is cancelled, on the day of the cancellation. (2) An employee to whom subsection (1) applies may, during the period of leave, be paid leave entitlements to which the employee is entitled under a contract of employment or award relating to the employee but otherwise the leave is to be unpaid leave. Division 5 - Annual reports and planning [Heading amended by No. 49 of 2004 s. 42(2).] [5.52. Deleted by No. 49 of 2004 s. 42(3).] 5.53. Annual reports (1) The local government is to prepare an annual report for each financial year. (2) The annual report is to contain - (a) a report from the mayor or president; (b) a report from the CEO; [(c), (d) deleted] (e) an overview of the plan for the future of the district made in accordance with section 5.56, including major initiatives that are proposed to commence or to continue in the next financial year; (f) the financial report for the financial year; (g) such information as may be prescribed in relation to the payments made to employees; (h) the auditor's report for the financial year; (ha) a matter on which a report must be made under section 29(2) of the Disability Services Act 1993; (hb) details of entries made under section 5.121 during the financial year in the register of complaints, including - (i) the number of complaints recorded in the register of complaints; (ii) how the recorded complaints were dealt with; and (iii) any other details that the regulations may require; and (i) such other information as may be prescribed. [Section 5.53 amended by No. 44 of 1999 s. 28(3); No. 49 of 2004 s. 42(4) and (5); No. 1 of 2007 s. 6.] 5.54. Acceptance of annual reports (1) Subject to subsection (2), the annual report for a financial year is to be accepted* by the local government no later than 31 December after that financial year. * Absolute majority required. (2) If the auditor's report is not available in time for the annual report for a financial year to be accepted by 31 December after that financial year, the annual report is to be accepted by the local government no later than 2 months after the auditor's report becomes available. [Section 5.54 amended by No. 49 of 2004 s. 49.] 5.55. Notice of annual reports The CEO is to give local public notice of the availability of the annual report as soon as practicable after the report has been accepted by the local government. 5.56. Planning for the future (1) A local government is to plan for the future of the district. (2) A local government is to ensure that plans made under subsection (1) are in accordance with any regulations made about planning for the future of the district. [Section 5.56 inserted by No. 49 of 2004 s. 42(6).] [5.57, 5.58. Deleted by No. 49 of 2004 s. 42(6).] Division 6 - Disclosure of financial interests Subdivision 1 - Disclosure of financial interests in matters affecting local government decisions 5.59. Terms used in this Subdivision In this Subdivision, unless the contrary intention appears - extent, in relation to an interest, includes the value and amount of the interest; member, in relation to a council or committee, means a council member or a member of the committee; relevant person means a person who is either a member or a person to whom section 5.70 or 5.71 applies. 5.60. When a person has an "interest" For the purposes of this Subdivision, a relevant person has an interest in a matter if either - (a) the relevant person; or (b) a person with whom the relevant person is closely associated, has - (c) a direct or indirect financial interest in the matter; or (d) a proximity interest in the matter. [Section 5.60 inserted by No. 64 of 1998 s. 30.] 5.60A. Financial interest For the purposes of this Subdivision, a person has a financial interest in a matter if it is reasonable to expect that the matter will, if dealt with by the local government, or an employee or committee of the local government or member of the council of the local government, in a particular way, result in a financial gain, loss, benefit or detriment for the person. [Section 5.60A inserted by No. 64 of 1998 s. 30; amended by No. 49 of 2004 s. 50.] 5.60B. Proximity interest (1) For the purposes of this Subdivision, a person has a proximity interest in a matter if the matter concerns - (a) a proposed change to a planning scheme affecting land that adjoins the person's land; (b) a proposed change to the zoning or use of land that adjoins the person's land; or (c) a proposed development (as defined in section 5.63(5)) of land that adjoins the person's land. (2) In this section, land (the proposal land) adjoins a person's land if - (a) the proposal land, not being a thoroughfare, has a common boundary with the person's land; (b) the proposal land, or any part of it, is directly across a thoroughfare from, the person's land; or (c) the proposal land is that part of a thoroughfare that has a common boundary with the person's land. (3) In this section a reference to a person's land is a reference to any land owned by the person or in which the person has any estate or interest. [Section 5.60B inserted by No. 64 of 1998 s. 30.] 5.61. Indirect financial interests A reference in this Subdivision to an indirect financial interest of a person in a matter includes a reference to a financial relationship between that person and another person who requires a local government decision in relation to the matter. 5.62. Closely associated persons (1) For the purposes of this Subdivision a person is to be treated as being closely associated with a relevant person if - (a) the person is in partnership with the relevant person; or (b) the person is an employer of the relevant person; or (c) the person is a beneficiary under a trust, or an object of a discretionary trust, of which the relevant person is a trustee; or (ca) the person belongs to a class of persons that is prescribed; or (d) the person is a body corporate - (i) of which the relevant person is a director, secretary or executive officer; or (ii) in which the relevant person holds shares having a total value exceeding - (I) the prescribed amount; or (II) the prescribed percentage of the total value of the issued share capital of the company, whichever is less; or (e) the person is the spouse, de facto partner or child of the relevant person and is living with the relevant person; or (ea) the relevant person is a council member and the person - (i) gave a notifiable gift to the relevant person in relation to the election at which the relevant person was last elected; or (ii) has given a notifiable gift to the relevant person since the relevant person was last elected; or (eb) the relevant person is a council member and since the relevant person was last elected the person - (i) gave to the relevant person a gift that section 5.82 requires the relevant person to disclose; or (ii) made a contribution to travel undertaken by the relevant person that section 5.83 requires the relevant person to disclose; or (f) the person has a relationship specified in any of paragraphs (a) to (d) in respect of the relevant person's spouse or de facto partner if the spouse or de facto partner is living with the relevant person. (2) In subsection (1) - notifiable gift means a gift about which the relevant person was or is required by regulations under section 4.59(a) to provide information in relation to an election; value, in relation to shares, means the value of the shares calculated in the prescribed manner or using the prescribed method. [Section 5.62 amended by No. 64 of 1998 s. 31; No. 28 of 2003 s. 110; No. 49 of 2004 s. 51; No. 17 of 2009 s. 26.] 5.63. Some interests need not be disclosed (1) Sections 5.65, 5.70 and 5.71 do not apply to a relevant person who has any of the following interests in a matter - (a) an interest common to a significant number of electors or ratepayers; (b) an interest in the imposition of any rate, charge or fee by the local government; (c) an interest relating to a fee, reimbursement of an expense or an allowance to which section 5.98, 5.98A, 5.99, 5.99A, 5.100 or 5.101(2) refers; (d) an interest relating to the pay, terms or conditions of an employee unless - (i) the relevant person is the employee; or (ii) either the relevant person's spouse, de facto partner or child is the employee if the spouse, de facto partner or child is living with the relevant person; [(e) deleted] (f) an interest arising only because the relevant person is, or intends to become, a member or office bearer of a body with non- profit making objects; (g) an interest arising only because the relevant person is, or intends to become, a member, office bearer, officer or employee of a department of the Public Service of the State or Commonwealth or a body established under this Act or any other written law; or (h) a prescribed interest. (2) If a relevant person has a financial interest because the valuation of land in which the person has an interest may be affected by - (a) any proposed change to a planning scheme for any area in the district; (b) any proposed change to the zoning or use of land in the district; or (c) the proposed development of land in the district, then, subject to subsection (3) and (4), the person is not to be treated as having an interest in a matter for the purposes of sections 5.65, 5.70 and 5.71. (3) If a relevant person has a financial interest because the valuation of land in which the person has an interest may be affected by - (a) any proposed change to a planning scheme for that land or any land adjacent to that land; (b) any proposed change to the zoning or use of that land or any land adjacent to that land; or (c) the proposed development of that land or any land adjacent to that land, then nothing in this section prevents sections 5.65, 5.70 and 5.71 from applying to the relevant person. (4) If a relevant person has a financial interest because any land in which the person has any interest other than an interest relating to the valuation of that land or any land adjacent to that land may be affected by - (a) any proposed change to a planning scheme for any area in the district; (b) any proposed change to the zoning or use of land in the district; or (c) the proposed development of land in the district, then nothing in this section prevents sections 5.65, 5.70 and 5.71 from applying to the relevant person. (5) A reference in subsection (2), (3) or (4) to the development of land is a reference to the development, maintenance or management of the land or of services or facilities on the land. [Section 5.63 amended by No. 1 of 1998 s. 15; No. 64 of 1998 s. 32; No. 28 of 2003 s. 111; No. 49 of 2004 s. 52; No. 17 of 2009 s. 27.] [5.64. Deleted by No. 28 of 2003 s. 112.] 5.65. Members' interests in matters to be discussed at meetings to be disclosed (1) A member who has an interest in any matter to be discussed at a council or committee meeting that will be attended by the member must disclose the nature of the interest - (a) in a written notice given to the CEO before the meeting; or (b) at the meeting immediately before the matter is discussed. Penalty: $10 000 or imprisonment for 2 years. (2) It is a defence to a prosecution under this section if the member proves that he or she did not know - (a) that he or she had an interest in the matter; or (b) that the matter in which he or she had an interest would be discussed at the meeting. (3) This section does not apply to a person who is a member of a committee referred to in section 5.9(2)(f). 5.66. Meeting to be informed of disclosures If a member has disclosed an interest in a written notice given to the CEO before a meeting then - (a) before the meeting the CEO is to cause the notice to be given to the person who is to preside at the meeting; and (b) at the meeting the person presiding is to bring the notice and its contents to the attention of the persons present immediately before the matters to which the disclosure relates are discussed. [Section 5.66 amended by No. 1 of 1998 s. 16; No. 64 of 1998 s. 33.] 5.67. Disclosing members not to participate in meetings A member who makes a disclosure under section 5.65 must not - (a) preside at the part of the meeting relating to the matter; or (b) participate in, or be present during, any discussion or decision making procedure relating to the matter, unless, and to the extent that, the disclosing member is allowed to do so under section 5.68 or 5.69. Penalty: $10 000 or imprisonment for 2 years. 5.68. Councils and committees may allow members disclosing interests to participate etc. in meetings (1) If a member has disclosed, under section 5.65, an interest in a matter, the members present at the meeting who are entitled to vote on the matter - (a) may allow the disclosing member to be present during any discussion or decision making procedure relating to the matter; and (b) may allow, to the extent decided by those members, the disclosing member to preside at the meeting (if otherwise qualified to preside) or to participate in discussions and the decision making procedures relating to the matter if - (i) the disclosing member also discloses the extent of the interest; and (ii) those members decide that the interest - (I) is so trivial or insignificant as to be unlikely to influence the disclosing member's conduct in relation to the matter; or (II) is common to a significant number of electors or ratepayers. (2) A decision under this section is to be recorded in the minutes of the meeting relating to the matter together with the extent of any participation allowed by the council or committee. (3) This section does not prevent the disclosing member from discussing, or participating in the decision making process on, the question of whether an application should be made to the Minister under section 5.69. 5.69. Minister may allow members disclosing interests to participate etc. in meetings (1) If a member has disclosed, under section 5.65, an interest in a matter, the council or the CEO may apply to the Minister to allow the disclosing member to participate in the part of the meeting, and any subsequent meeting, relating to the matter. (2) An application made under subsection (1) is to include - (a) details of the nature of the interest disclosed and the extent of the interest; and (b) any other information required by the Minister for the purposes of the application. (3) On an application under this section the Minister may allow, on any condition determined by the Minister, the disclosing member to preside at the meeting, and at any subsequent meeting, (if otherwise qualified to preside) or to participate in discussions or the decision making procedures relating to the matter if - (a) there would not otherwise be a sufficient number of members to deal with the matter; or (b) the Minister is of the opinion that it is in the interests of the electors or ratepayers to do so. (4) A person must not contravene a condition imposed by the Minister under this section. Penalty: $10 000 or imprisonment for 2 years. [Section 5.69 amended by No. 49 of 2004 s. 53.] 5.69A. Minister may exempt committee members from disclosure requirements (1) A council or a CEO may apply to the Minister to exempt the members of a committee from some or all of the provisions of this Subdivision relating to the disclosure of interests by committee members. (2) An application under subsection (1) is to include - (a) the name of the committee, details of the function of the committee and the reasons why the exemption is sought; and (b) any other information required by the Minister for the purposes of the application. (3) On an application under this section the Minister may grant the exemption, on any conditions determined by the Minister, if the Minister is of the opinion that it is in the interests of the electors or ratepayers to do so. (4) A person must not contravene a condition imposed by the Minister under this section. Penalty: $10 000 or imprisonment for 2 years. [Section 5.69A inserted by No. 64 of 1998 s. 34(1).] 5.70. Employees to disclose interests relating to advice or reports (1) In this section - employee includes a person who, under a contract for services with the local government, provides advice or a report on a matter. (2) An employee who has an interest in any matter in respect of which the employee is providing advice or a report directly to the council or a committee must disclose the nature of the interest when giving the advice or report. (3) An employee who discloses an interest under this section must, if required to do so by the council or committee, as the case may be, disclose the extent of the interest. Penalty: $10 000 or imprisonment for 2 years. 5.71. Employees to disclose interests relating to delegated functions If, under Division 4, an employee has been delegated a power or duty relating to a matter and the employee has an interest in the matter, the employee must not exercise the power or discharge the duty and - (a) in the case of the CEO, must disclose to the mayor or president the nature of the interest as soon as practicable after becoming aware that he or she has the interest in the matter; and (b) in the case of any other employee, must disclose to the CEO the nature of the interest as soon as practicable after becoming aware that he or she has the interest in the matter. Penalty: $10 000 or imprisonment for 2 years. 5.72. Defence to prosecution It is a defence to a prosecution under section 5.70 or 5.71 if the person proves that he or she did not know that he or she had an interest in the matter. 5.73. Disclosures to be minuted A disclosure under section 5.65 or 5.70 is to be recorded in the minutes of the meeting relating to the disclosure. Subdivision 2 - Disclosure of financial interests in returns 5.74. Terms used in this Subdivision (1) In this Subdivision, unless the contrary intention appears - address means - (a) in relation to a person other than a corporation, the last residential or business address of the person known to the person disclosing the address in a return; (b) in relation to a corporation, the address of the registered office or principal place of business of the corporation in the State or, where there is no such office or place, the address of the principal office or place of business of the corporation in the place in which it is incorporated or taken to be registered; or (c) in relation to any real property, the postal address of the property or the particulars of title of the property; annual return means a return required by section 5.76; corporation means any body corporate, whether formed or incorporated within or outside the State, and includes any "company" or "foreign company" (as those terms are defined in the Corporations Act 2001 of the Commonwealth) but does not include - (a) a body corporate that is incorporated within Australia or an external Territory and is a public authority or an instrumentality or agency of the Crown; (b) a corporation sole; [(c) deleted] (d) a society registered under the Co-operative and Provident Societies Act 1903; or (e) an association, society, institution or body incorporated under the Associations Incorporation Act 1987; designated employee means - (a) a CEO; (b) an employee, other than the CEO, to whom any power or duty has been delegated under Division 4; (c) an employee who is a member of a committee comprising council members and employees; and (d) an employee nominated by the local government to be a designated employee; primary return means a return required by section 5.75; relative, in relation to a relevant person, means any of the following - (a) a parent, grandparent, brother, sister, uncle, aunt, nephew, niece, lineal descendant of the relevant person or of the relevant person's spouse or de facto partner; (b) the relevant person's spouse or de facto partner or the spouse or de facto partner of any relative specified in paragraph (a), whether or not the relationship is traced through, or to, a person whose parents were not actually married to each other at the time of the person's birth or subsequently, and whether the relationship is a natural relationship or a relationship established by a written law; relevant person means a person who is a council member or a designated employee; return means a primary or an annual return; return period, in relation to an annual return required to be lodged by a relevant person in a particular year, means - (a) if the last return lodged by the relevant person was a primary return, the period commencing on the day after the start day for the primary return and ending on 30 June in that year; or (b) if the last return lodged by the relevant person was an annual return, the period of 12 months ending on 30 June in that year; start day means - (a) in the case of a council member, the day on which he or she made the declaration referred to in section 2.29; or (b) in the case of a designated employee, the day on which the person became a designated employee. (2) A reference in this Subdivision to a disclosure concerning any income, corporation or any other thing (not being real property), includes a reference to a disclosure concerning any income derived, corporation incorporated (or taken to be registered), or other thing arising or received, outside this State. (3) For the purposes of this Subdivision, gifts or contributions to travel given, loans made, or goods or services supplied, to a relevant person by 2 or more related bodies corporate (as defined in the Corporations Act 2001 of the Commonwealth) is to be treated as having been given, made or supplied by a single corporation. [Section 5.74 amended by No. 1 of 1998 s. 17; No. 26 of 1999 s. 92(2); No. 10 of 2001 s. 122; No. 28 of 2003 s. 113.] 5.75. Primary returns (1) A relevant person other than the CEO must lodge with the CEO a primary return in the prescribed form within 3 months of the start day. (2) A CEO must lodge with the mayor or president a primary return in the prescribed form within 3 months of the start day. (3) This section does not apply to a person who - (a) has lodged a return within the previous year; or (b) has, within 3 months of the start day, ceased to be a relevant person. Penalty: $10 000 or imprisonment for 2 years. 5.76. Annual returns (1) Each year, a relevant person other than the CEO must lodge with the CEO an annual return in the prescribed form by 31 August of that year. (2) Each year, a CEO must lodge with the mayor or president an annual return in the prescribed form by 31 August of that year. Penalty applicable to subsections (1) and (2): $10 000 or imprisonment for 2 years. [Section 5.76 amended by No. 1 of 1998 s. 18; No. 66 of 2006 s. 12.] 5.77. Acknowledging receipt of returns On receipt of a return under section 5.75 or 5.76 from a person, the CEO or the mayor or president, as the case may be, is to give the person written acknowledgment of having received the return. 5.78. Information to be disclosed in returns (1) A relevant person must comply with the requirements of sections 5.79, 5.80, 5.81, 5.82, 5.83, 5.84, 5.85 and 5.86 in relation to the disclosure of information in a return. Penalty: $10 000 or imprisonment for 2 years. (2) Nothing in this Subdivision requires a relevant person to - (a) include in a return any information which has been disclosed in a previous return made by the relevant person; or (b) disclose the actual value, amount or extent of any asset, income, interest, debt or disposition referred to in section 5.79, 5.80, 5.81, 5.84, 5.85 or 5.86. [Section 5.78 amended by No. 17 of 2009 s. 28.] 5.79. Real property (1) A relevant person is to disclose in a primary return and an annual return - (a) the address of each parcel of real property, located in the district or in an adjoining district, in which the person had an interest - (i) in the case of a primary return, on the start day; and (ii) in the case of an annual return, at any time during the return period; and (b) the nature of the interest in each parcel of real property to which paragraph (a) applies. (2) Nothing in this Subdivision requires a relevant person to disclose in a return an interest in a parcel of real property to which subsection (1) applies if the person had the interest only - (a) in the capacity of executor or administrator of the estate of a deceased person and the person was not a beneficiary under the will or did not have an entitlement under the intestacy; (b) in the capacity of trustee and the person acquired the interest in the ordinary course of an occupation of the person which is not related to his or her duties as a council member or employee; or (c) by way of security for a debt. (3) In this section - interest means any estate, interest, right or power whatever, whether at law or in equity, in or over real property. 5.80. Source of income (1) A relevant person is to disclose - (a) in a primary return, each source from which the person reasonably expects to receive income in the period commencing on the start day and ending on the next 30 June; and (b) in an annual return, each source from which income was received by the person at any time during the return period. (2) A reference in subsection (1) to each source from which income was received, or is reasonably expected to be received, by a person is a reference to - (a) in relation to income from an occupation of the person - (i) a description of the occupation; (ii) if the person is employed or the holder of an office, the name and address of his or her employer or a description of the office; and (iii) if the person has entered into a partnership with other persons, the name (if any) under which the partnership is conducted; (b) in relation to income from a trust, the name and address of the settlor and the trustee; and (c) in relation to any other income, a description sufficient to identify the person from whom, or the circumstances in which, the income was, or is reasonably expected to be, received. (3) Nothing in this Subdivision requires a relevant person to disclose in a return the source of any income if the amount of the income received, or reasonably expected to be received, by the person from that source did not exceed the prescribed amount, or is not reasonably expected to exceed the prescribed amount. (4) In this section - income means assessable income within the meaning of the Income Tax Assessment Act 1936 of the Commonwealth, but does not include fees, reimbursement of expenses or allowances referred to in Division 8. 5.81. Trusts A relevant person is to disclose in a primary return and in an annual return the name and address of the settlor and the trustee of any trust in which the person held a beneficial interest, or of any discretionary trust of which the person was a trustee or object, other than a trust to which section 5.80(2)(b) applies, in the case of - (a) a primary return, on the start day; and (b) an annual return, at any time during the return period. 5.82. Gifts (1) A relevant person is to disclose in an annual return - (a) the description and the amount of each gift received by the person at any time during the return period; and (b) the name and address of the person who made each gift to which paragraph (a) applies. (2) Nothing in this Subdivision requires a relevant person to disclose in a return a gift received by the person if - (a) the amount of the gift did not exceed the prescribed amount unless - (i) the gift was one of 2 or more gifts made by one person at any time during the return period; and (ii) the sum of those 2 or more gifts exceeded the prescribed amount; or (b) the donor was a relative of the person. (3) For the purposes of this section, the amount of a gift comprising property, other than money, or the conferral of a financial benefit is to be treated as being an amount equal to the value of the property or the financial benefit at the time the gift was made. (4) In this section - gift means any disposition of property, or the conferral of any other financial benefit, made by one person in favour of another otherwise than by will (whether with or without an instrument in writing), without consideration in money or money's worth passing from the person in whose favour it is made to the other, or with such consideration so passing if the consideration is not fully adequate, but does not include any financial or other contribution to travel. [Section 5.82 amended by No. 17 of 2009 s. 29.] 5.83. Contributions to travel (1) A relevant person is to disclose in an annual return - (a) the description and the amount of each financial or other contribution that has been made to any travel undertaken by the person at any time during the return period; and (b) the name and address of the person who made each contribution to which paragraph (a) applies. (2) Nothing in this Subdivision requires a relevant person to disclose in a return a financial or other contribution to any such travel undertaken by a person if - (a) the contribution was made from Commonwealth, State or local government funds; (b) the contribution was made by a relative of the person; (c) the contribution was made in the ordinary course of an occupation of the person which is not related to his or her duties as a council member or employee; (d) the amount of the contribution did not exceed the prescribed amount unless - (i) the contribution was one of 2 or more contributions made by one person at any time during the return period; and (ii) the sum of those 2 or more contributions exceeded the prescribed amount; or (e) the contribution was made by a political party of which the person was a member and the travel was undertaken for the purpose of political activity of the party, or to enable the person to represent the party. (3) For the purposes of subsection (2)(d) the amount of a contribution (other than a financial contribution) is to be treated as being an amount equal to the value of the contribution at the time the contribution was made. (4) In this section - political party means a body or organization, whether incorporated or unincorporated, having as one of its objects or activities the promotion of the election to the Parliament of the Commonwealth or of the State of a candidate or candidates endorsed by it or by a body or organization of which it forms part; and travel includes accommodation incidental to a journey. [Section 5.83 amended by No. 17 of 2009 s. 30.] 5.84. Interests and positions in corporations (1) A relevant person is to disclose in a primary return and in an annual return - (a) the name of each corporation of which the person was a member or in which he or she otherwise had an interest or held any position (whether remunerated or not) in the case of - (i) a primary return, on the start day; and (ii) an annual return, at any time during the return period; (b) the nature of the interest, or the description of the position held, in each corporation to which paragraph (a) applies; and (c) for each corporation to which paragraph (a) applies, other than corporations whose shares are quoted on a prescribed financial market in Australia - (i) its address; and (ii) a description of its principal business. (2) In this section - interest means a relevant interest (within the meaning given by section 9 of the Corporations Act 2001 of the Commonwealth) in any securities (within the meaning given by section 92 of that Act) issued or made available by the corporation; prescribed financial market has the meaning given by section 9 of the Corporations Act 2001 of the Commonwealth. [Section 5.84 inserted by No. 64 of 1998 s. 35; amended by No. 10 of 2001 s. 123; No. 21 of 2003 s. 15(2) and (3).] 5.85. Debts (1) A relevant person is to disclose in a primary return and an annual return the name and address of each person to whom the relevant person was liable to pay any debt - (a) in the case of a primary return, on the start day; or (b) in the case of an annual return, at any time during the return period, whether or not the amount, or any part of the amount, to be paid was due and payable on the start day or at any time during the return period, as the case may be. (2) Nothing in this Subdivision requires a relevant person to disclose in a return a liability to pay a debt if - (a) the amount to be paid did not exceed the prescribed amount on the start day or at any time during the return period, as the case may be, unless - (i) the debt was one of 2 or more debts which the person was liable to pay to one person on the start day or at any time during the return period, as the case may be; and (ii) the sum of the amounts to be paid exceeded the prescribed amount; (b) the person was liable to pay the debt to a relative; (c) in the case of a debt arising from a loan of money, the person was liable to pay the debt to an ADI (authorised deposit-taking institution) as defined in section 5 of the Banking Act 1959 of the Commonwealth or other person whose ordinary business includes the lending of money and the loan was made in the ordinary course of business of the lender; or (d) in the case of a debt arising from the supply of goods or services - (i) the goods or services were supplied in the period of 18 months immediately preceding the start day or were supplied during the return period, as the case may be; or (ii) the goods or services were supplied in the ordinary course of an occupation of the person which is not related to his or her duties as a council member or employee. (3) In subsections (1) and (2) - debt means a debt arising from - (a) a loan of money; or (b) the supply of goods or services. [Section 5.85 amended by No. 26 of 1999 s. 92(3).] 5.86. Dispositions of property (1) A relevant person is to disclose in an annual return particulars of each disposition by the person of real property - (a) located in the district or in an adjoining district, in which property the person had an interest; (b) by which disposition the relevant person retained, either wholly or in part, the use and benefit of the property or the right to re-acquire the property at a later time, which was made at any time during the return period. (2) A relevant person is to disclose in an annual return particulars of each disposition of real property - (a) located in the district or in an adjoining district, in which property the relevant person had an interest; (b) to a person by any person other than the relevant person under arrangements made by the relevant person; and (c) by which disposition the relevant person obtained, either wholly or in part, the use and benefit of the property, which was made at any time during the return period. (3) In this section - disposition of real property means any conveyance, transfer, assignment, settlement, payment or other alienation of real property, and includes - (a) the creation of a trust in respect of real property; (b) the grant or creation of any lease, mortgage, charge, easement, licence, power, partnership or interest in respect of real property; (c) the release, discharge, surrender, forfeiture or abandonment, at law or in equity, of any debt, contract, chose in action or any other interest in respect of real property; (d) the exercise by a person of a general power of appointment over real property in favour of any other person; and (e) any transaction entered into by any person with intent thereby to diminish, directly or indirectly, the value of his own real property and to increase the value of the property of any other person. 5.87. Discretionary disclosures generally A relevant person may, at his or her discretion, disclose in any return any direct or indirect benefits, advantages or liabilities, whether financial or not - (a) which are not required to be disclosed by any other provision of this Subdivision; and (b) which the person considers might appear to raise a conflict between the person's private interests and the person's duty as a council member or a designated employee or which he or she otherwise desires to disclose. Subdivision 3 - General 5.88. Register of financial interests (1) A CEO is to keep a register of financial interests. (2) The register is to contain - (a) the returns lodged under section 5.75 and 5.76; and (b) a record of the disclosures made under sections 5.65, 5.70 and 5.71, and be in the form that is prescribed (if any). (3) As soon as is practicable after a person ceases to be a person who is required under section 5.75 or 5.76 to lodge a return, the CEO is to remove from the register all returns relating to that person. (4) Returns lodged under section 5.75 or 5.76 and removed from the register under subsection (3) are to be kept by the CEO for a period of at least 5 years after the person who lodged the return ceased to be a council member or designated employee. 5.89. Offence to give false or misleading information A person must not, in relation to a disclosure under section 5.65, 5.70 or 5.71 or a return lodged under section 5.75 or 5.76, provide information in written or oral form that the person knows to be - (a) false or misleading in a material particular; or (b) likely to deceive in a material way. Penalty: $10 000 or imprisonment for 2 years. 5.90. Offence to publish information in certain cases (1) A person must not publish - (a) any information derived from a register of financial interests unless that information constitutes a fair or accurate report or summary of information contained in the register and is published in good faith; or (b) any comment on the facts set forth in a register of financial interests unless that comment is fair and published in good faith. Penalty: $5 000 or imprisonment for 1 year. (2) In subsection (1) - publish has the same meaning in relation to any information or comment referred to in that subsection as it has in sections 348 and 349 of The Criminal Code in relation to the publication of defamatory matter. Division 7 - Access to information 5.91. Interpretation A reference in this Division to a council member, a committee member or an employee performing a function under a written law other than this Act does not include a reference to a council member, a committee member or an employee performing a function in a capacity other than that of council member, a committee member or an employee, as the case may be, under this Act. 5.92. Access to information by council, committee members (1) A person who is a council member or a committee member can have access to any information held by the local government that is relevant to the performance by the person of any of his or her functions under this Act or under any other written law. (2) Without limiting subsection (1), a council member can have access to - (a) all written contracts entered into by the local government; and (b) all documents relating to written contracts proposed to be entered into by the local government. 5.93. Improper use of information A person who is a council member, a committee member or an employee must not make improper use of any information acquired in the performance by the person of any of his or her functions under this Act or any other written law - (a) to gain directly or indirectly an advantage for the person or any other person; or (b) to cause detriment to the local government or any other person. Penalty: $10 000 or imprisonment for 2 years. 5.94. Public can inspect certain local government information A person can attend the office of a local government during office hours and, unless it would be contrary to section 5.95, inspect, free of charge, in the form or medium in which it is held by the local government and whether or not it is current at the time of inspection - (a) any code of conduct; (aa) any regulations prescribing rules of conduct of council members referred to in section 5.104; (ab) any register of complaints referred to in section 5.121; (b) any register of financial interests; (c) any annual report; (d) any annual budget; (e) any schedule of fees and charges; (f) any plan for the future of the district made in accordance with section 5.56; (g) any proposed local law of which the local government has given Statewide public notice under section 3.12(3); (h) any local law made by the local government in accordance with section 3.12; (i) any regulations made by the Governor under section 9.60 that operate as if they were local laws of the local government; (j) any text that - (i) is adopted (whether directly or indirectly) by a local law of the local government or by a regulation that is to operate as if it were a local law of the local government; or (ii) would be adopted by a proposed local law of which the local government has given Statewide public notice under section 3.12(3); (k) any subsidiary legislation made or adopted by the local government under any written law other than under this Act; (l) any written law having a provision in respect of which the local government has a power or duty to enforce; (m) any rates record; (n) any confirmed minutes of council or committee meetings; (o) any minutes of electors' meetings; (p) any notice papers and agenda relating to any council or committee meeting and reports and other documents that have been - (i) tabled at a council or committee meeting; or (ii) produced by the local government or a committee for presentation at a council or committee meeting and which have been presented at the meeting; (q) any report of a review of a local law prepared under section 3.16(3); (r) any business plan prepared under section 3.59; (s) any register of owners and occupiers under section 4.32(6) and electoral rolls; (t) any contract under section 5.39 and variation of such contract; (u) such other information relating to the local government - (i) required by a provision of this Act to be available for public inspection; or (ii) as may be prescribed. [Section 5.94 amended by No. 49 of 2004 s. 42(7); No. 1 of 2007 s. 7.] 5.95. Limits on right to inspect local government information (1) A person's right to inspect information referred to in section 5.94 does not extend to the inspection of information - (a) which is not current at the time of inspection; and (b) which, in the CEO's opinion, would divert a substantial and unreasonable portion of the local government's resources away from its other functions. (2) A person's right to inspect information referred to in section 5.94 does not extend to the inspection of information referred to in paragraph (m), (n), (p) or (u) of that section if the information relates to any debt owed to the local government by a person other than the first-mentioned person. (3) Subject to subsection (4), a person's right to inspect information referred to in section 5.94 does not extend to the inspection of information referred to in paragraph (n) or (p) of that section if the meeting or that part of the meeting to which the information refers - (a) was closed to members of the public; or (b) in the CEO's opinion, could have been closed to members of the public but was not closed. (4) Subsection (3) does not apply in relation to information - (a) that is a record of the decisions made at a meeting of a council, a committee or electors; or (b) of a kind prescribed as being information that can be inspected by members of the public despite subsection (3). (5) A person's right to inspect information referred to in section 5.94 does not extend to the inspection of information referred to in paragraph (t) of that section if - (a) the information relates to a matter other than the salary or the remuneration or benefits payable under the contract; and (b) the information is prescribed as being of a private nature. (6) Subject to subsection (7), a person's right to inspect information referred to in section 5.94 does not extend to the inspection of information - (a) referred to in a paragraph of that section that is prescribed as being confidential information for the purposes of this subsection; or (b) referred to in that section of a type prescribed as confidential for the purposes of this subsection, for the period of time prescribed in relation to the information. (7) Subsection (6) does not apply in respect of information in relation to a local government if - (a) the information is prescribed as information that is confidential but that may be available for inspection if the local government so resolves; and (b) the local government has resolved that the information is to be available for inspection. (8) A person's right to inspect information referred to in section 5.94 does not extend to the inspection of information referred to in paragraph (m) of that section if the information is information that has been omitted by regulations made under section 4.38 from the electoral roll for the protection of an elector or his or her family. [Section 5.95 amended by No. 49 of 2004 s. 54.] 5.96. Copies of information to be available If a person can inspect certain information under this Division, the person may request a copy of the information and, unless regulations prescribe otherwise, the local government is to ensure that copies are available and that the price at which it sells copies does not exceed the cost of providing the copies. [Section 5.96 amended by No. 17 of 2009 s. 31.] 5.97. Freedom of Information Act 1992 not affected Nothing in this Division affects the operation of the Freedom of Information Act 1992. Division 8 - Local government payments and gifts to its members [Heading inserted by No. 17 of 2009 s. 32.] 5.98. Fees etc. for council members (1) A council member who attends a council or committee meeting is entitled to be paid - (a) the prescribed minimum fee for attending a council or committee meeting; or (b) where the local government has set a fee within the prescribed range for council or committee meeting attendance fees, that fee. (2A) A council member who attends a meeting of a prescribed type at the request of the council is entitled to be paid - (a) the prescribed minimum fee for attending a meeting of that type; or (b) where the local government has set a fee within the prescribed range for meetings of that type, that fee. (2) A council member who incurs an expense of a kind prescribed as being an expense - (a) to be reimbursed by all local governments; or (b) which may be approved by any local government for reimbursement by the local government and which has been approved by the local government for reimbursement, is entitled to be reimbursed for the expense in accordance with subsection (3). (3) A council member to whom subsection (2) applies is to be reimbursed for the expense - (a) where the minimum extent of reimbursement for the expense has been prescribed, to that extent; or (b) where the local government has set the extent to which the expense can be reimbursed and that extent is within the prescribed range (if any) of reimbursement, to that extent. (4) If an expense is of a kind that may be approved by a local government for reimbursement, then the local government may approve reimbursement of the expense either generally or in a particular case but nothing in this subsection limits the application of subsection (3) where the local government has approved reimbursement of the expense in a particular case. (5) The mayor or president of a local government is entitled, in addition to any entitlement that he or she has under subsection (1) or (2), to be paid - (a) the prescribed minimum annual local government allowance for mayors or presidents; or (b) where the local government has set an annual local government allowance within the prescribed range for annual local government allowances for mayors or presidents, that allowance. (6) A local government cannot - (a) make any payment to; or (b) reimburse an expense of, a person who is a council member or a mayor or president in that person's capacity as council member, mayor or president unless the payment or reimbursement is in accordance with this Division. (7) A reference in this section to a "committee meeting" is a reference to a meeting of a committee comprising - (a) council members only; or (b) council members and employees. [Section 5.98 amended by No. 64 of 1998 s. 36; No. 17 of 2009 s. 33.] 5.98A. Allowance for deputy mayor or deputy president (1) A local government may decide* to pay the deputy mayor or deputy president of the local government an allowance of up to the prescribed percentage of the annual local government allowance to which the mayor or president is entitled under section 5.98(5). * Absolute majority required. (2) An allowance under subsection (1) is to be paid in addition to any amount to which the deputy mayor or deputy president is entitled under section 5.98. [Section 5.98A inserted by No. 64 of 1998 s. 37.] 5.99. Annual fee for council members in lieu of fees for attending meetings A local government may decide* that instead of paying council members a fee referred to in section 5.98(1), it will instead pay all council members who attend council or committee meetings - (a) the prescribed minimum annual fee; or (b) where the local government has set a fee within the prescribed range for annual fees, that fee. * Absolute majority required. 5.99A. Allowances for council members in lieu of reimbursement of expenses A local government may decide* that instead of reimbursing council members under section 5.98(2) for all of a particular type of expense it will instead pay all council members - (a) the prescribed minimum annual allowance for that type of expense; or (b) where the local government has set an allowance within the prescribed range for annual allowances for that type of expense, an allowance of that amount, and only reimburse the member for expenses of that type in excess of the amount of the allowance. * Absolute majority required. [Section 5.99A inserted by No. 64 of 1998 s. 38.] 5.100. Payments for certain committee members (1) A person who is a committee member but who is not a council member or an employee is not to be paid a fee for attending any committee meeting. (2) Where - (a) a local government decides that any person who is a committee member but who is not a council member or an employee is to be reimbursed by the local government for an expense incurred by the person in relation to a matter affecting the local government; and (b) a maximum amount for reimbursement of expenses has been prescribed for the purposes of section 5.98(3)(b), the local government must ensure that the amount reimbursed to that person does not exceed that maximum. 5.101. Payments for employee committee members (1) A committee member who is an employee is not to be paid a fee for attending any committee meeting. (2) Nothing in this section prevents a local government from reimbursing an employee for an expense incurred by the employee in relation to a matter affecting the local government. 5.101A. Regulations about payment of expenses Regulations may be made about the method of payment of an expense for which a person can be reimbursed. [Section 5.101A inserted No. 17 of 2009 s. 35.] 5.102. Expense may be funded before actually incurred Nothing in this Division prevents a local government from making a cash advance to a person in respect of an expense for which the person can be reimbursed. Division 9 - Conduct of certain officials [Heading inserted by No. 1 of 2007 s. 8.] 5.102A. Terms used in this Division In this Division - breach means a minor breach or a serious breach; complaints officer means the person who is the complaints officer under section 5.120 for the local government concerned; minor breach has the meaning given in section 5.105(1), and it includes a recurrent breach; party, when used in connection with a complaint, means - (a) the person who made the complaint; or (b) the person against whom the complaint was made; primary standards panel means the standards panel established under section 5.122(1); recurrent breach has the meaning given in section 5.105(2); rules of conduct means rules of conduct for council members referred to in section 5.104(1); serious breach has the meaning given in section 5.105(3); standards panel means a standards panel established under section 5.122(1) or (2). [Section 5.102A inserted by No. 1 of 2007 s. 9.] 5.103. Codes of conduct (1) Every local government is to prepare or adopt a code of conduct to be observed by council members, committee members and employees. [(2) deleted] (3) Regulations may prescribe codes of conduct or the content of, and matters in relation to, codes of conduct and any code of conduct or provision of a code of conduct applying to a local government under subsection (1) is of effect only to the extent to which it is not inconsistent with regulations. [Section 5.103 amended by No. 49 of 2004 s. 55; No. 1 of 2007 s. 10.] 5.104. Other regulations about conduct of council members (1) Regulations may prescribe rules, to be known as the rules of conduct for council members, that council members are required to observe. (2) The rules of conduct for council members apply, to the extent stated in the regulations, to a council member when acting as a committee member. (3) The rules of conduct may contain provisions dealing with any aspect of the conduct of council members whether or not it is otherwise dealt with in this Act. (4) Regulations cannot prescribe a rule of conduct if contravention of the rule would, in addition to being a minor breach under section 5.105(1)(a), also be a serious breach under section 5.105(3). (5) Regulations cannot specify that contravention of a local law under this Act is a minor breach if contravention of the local law would, in addition to being a minor breach under section 5.105(1)(b), also be a serious breach under section 5.105(3). (6) The rules of conduct do not limit what a code of conduct under section 5.103 may contain. (7) The regulations may, in addition to rules of conduct, prescribe general principles to guide the behaviour of council members. [Section 5.104 inserted by No. 1 of 2007 s. 11.] 5.105. Breaches by council members (1) A council member commits a minor breach if he or she contravenes - (a) a rule of conduct under section 5.104(1); or (b) a local law under this Act, contravention of which the regulations specify to be a minor breach. (2) A minor breach is a recurrent breach if it occurs after the council member has been found under this Division to have committed 2 or more other minor breaches. (3) A council member who commits any offence under a written law, other than a local law made under this Act, of which it is an element that the offender is a council member or is a person of a description that specifically includes a council member commits a serious breach. [Section 5.105 inserted by No. 1 of 2007 s. 11.] 5.106. Deciding whether breach occurred A finding that a breach has occurred is to be based on evidence from which it may be concluded that it is more likely that the breach occurred than that it did not occur. [Section 5.106 inserted by No. 1 of 2007 s. 11.] 5.107. Complaining to complaints officer of minor breach (1) A person who has reason to believe that a council member has committed a minor breach may complain of the breach by sending to the complaints officer a complaint in accordance with subsection (2). (2) The complaint has to be made in writing, in a form approved by the Minister, giving details of - (a) who is making the complaint; (b) who is alleged to have committed the breach; (c) the contravention that is alleged to have resulted in the breach; and (d) any other information that the regulations may require. (3) Within 14 days after the day on which the complaints officer receives the complaint, the complaints officer is required to - (a) give to the person making the complaint an acknowledgment in writing that the complaint has been received; (b) give to the council member about whom the complaint is made a copy of the complaint; and (c) send - (i) the complaint; and (ii) anything the complaints officer has that is relevant to the complaint including, where relevant, details of any 2 or more minor breaches that the council member has previously been found to have committed, to the member of the primary standards panel who is appointed under Schedule 5.1 clause 2(a). (4) A person can make a complaint under this section within 2 years after the breach alleged in the complaint occurred, but not later. [Section 5.107 inserted by No. 1 of 2007 s. 11.] 5.108. Departmental CEO may send complaint of minor breach to complaints officer (1) If it appears to the Departmental CEO that a complaint a person seeks to make under section 5.114 discloses a minor breach, the Departmental CEO may send the complaint to the complaints officer of the local government concerned. (2) Within 14 days after the day on which the complaints officer receives the complaint, the complaints officer is required to - (a) give to the person who sent the complaint to the Departmental CEO written notice that the complaint is to be dealt with as a complaint of a minor breach; (b) give to the council member about whom the complaint is made a copy of the complaint; and (c) send - (i) the complaint; and (ii) anything the complaints officer has that is relevant to the complaint including, where relevant, details of any 2 or more minor breaches that the council member has previously been found to have committed, to the member of the primary standards panel who is appointed under Schedule 5.1 clause 2(a). (3) The Departmental CEO can send a complaint to a complaints officer under this section within 2 years after the breach alleged in the complaint occurred, but not later. [Section 5.108 inserted by No. 1 of 2007 s. 11; amended by No. 17 of 2009 s. 44.] 5.109. Complaint initiated by complaints officer (1) A person who is a complaints officer may make a complaint of a minor breach by - (a) preparing the complaint in the form required under section 5.107(2); (b) giving the council member about whom the complaint is made a copy of the complaint; and (c) sending - (i) the complaint; and (ii) anything the complaints officer has that is relevant to the complaint including, where relevant, details of any 2 or more minor breaches that the council member has previously been found to have committed, to the member of the primary standards panel who is appointed under Schedule 5.1 clause 2(a). (2) A complaints officer can make a complaint under this section within 2 years after the breach alleged in the complaint occurred, but not later. [Section 5.109 inserted by No. 1 of 2007 s. 11.] 5.110. Dealing with complaint of minor breach (1) The member of the primary standards panel who receives a complaint from a complaints officer under section 5.107(3)(c), 5.108(2)(c) or 5.109(1)(c) is to - (a) allocate that complaint to a standards panel; and (b) send the complaint and anything received from the complaints officer to the member of that standards panel who is appointed under Schedule 5.1 clause 2(a). (2) After receiving a complaint allocated to it under subsection (1), a standards panel is required to - (a) make a finding as to whether the breach alleged in the complaint occurred; or (b) send the complaint to the Departmental CEO under section 5.111. (3) For the purpose of helping it to deal with a complaint, a standards panel may request the complaints officer to provide anything further that the standards panel requires, and the complaints officer is required to comply with the request so far as it is practicable to do so. (4) A standards panel is required to give each party written notice of the reasons for any finding it makes under subsection (2). (5) If a standards panel finds that a council member has committed a minor breach, the standards panel is required to give the council member an opportunity to make submissions about how the breach should be dealt with under subsection (6). (6) The breach is to be dealt with by - (a) dismissing the complaint; (b) ordering that - (i) the person against whom the complaint was made be publicly censured as specified in the order; (ii) the person against whom the complaint was made apologise publicly as specified in the order; or (iii) the person against whom the complaint was made undertake training as specified in the order; or (c) ordering 2 or more of the sanctions described in paragraph (b). (7) A standards panel is required to give to each party and the complaints officer notice of how it deals with the matter under subsection (6). [Section 5.110 inserted by No. 1 of 2007 s. 11; amended by No. 17 of 2009 s. 44.] 5.111. Dealing with a recurrent breach (1) If a standards panel is allocated a complaint as described in section 5.110(1) and the breach alleged, if it were found to have been committed, would be a recurrent breach, the standards panel may send the complaint to the Departmental CEO or proceed under section 5.110 to make a finding and deal with the complaint. (2) If a standards panel sends the complaint to the Departmental CEO under subsection (1), the standards panel is required to notify - (a) each of the parties; and (b) the complaints officer. [Section 5.111 inserted by No. 1 of 2007 s. 11; amended by No. 17 of 2009 s. 44.] 5.112. Allegation of recurrent breach (1) If a standards panel sends to the Departmental CEO, under section 5.111, a complaint of a minor breach that, if it were found to have been committed, would be a recurrent breach, the Departmental CEO has to decide whether to make an allegation under subsection (2). (2) If the Departmental CEO considers it appropriate to do so, the Departmental CEO may make an allegation to the State Administrative Tribunal that the council member committed the breach. (3) The Departmental CEO is required to give the complaints officer and each of the parties notice in writing of the decision. (4) If the Departmental CEO decides not to make an allegation to the State Administrative Tribunal - (a) the Departmental CEO is required to send the complaint to the standards panel that sent the complaint to the Departmental CEO; (b) the standards panel is required to notify each of the parties and the complaints officer that the complaint will be dealt with by the standards panel; and (c) the standards panel is required to deal with the complaint under section 5.110. (5) The fact that the person who made the complaint does not want an allegation to be made to the State Administrative Tribunal does not prevent the Departmental CEO from making the allegation. [Section 5.112 inserted by No. 1 of 2007 s. 11; amended by No. 17 of 2009 s. 44.] 5.113. Punishment for recurrent breach If, on an allegation under section 5.112, the State Administrative Tribunal finds that a person committed a recurrent breach, it may make any of the orders described in section 5.117. [Section 5.113 inserted by No. 1 of 2007 s. 11.] 5.114. Making complaint of serious breach (1) A person who has reason to believe that a council member has committed a serious breach may complain to the Departmental CEO as described in subsection (2). (2) The complaint has to be made in writing in a form approved by the Minister, giving details of - (a) who is making the complaint; (b) who is alleged to have committed the breach; (c) the offence that is alleged to have resulted in the breach; and (d) any other information that the regulations may require, and sent to the Departmental CEO. (3) If there is a limit on the time within which proceedings may be commenced for the offence to which a complaint of a serious breach relates, the complaint cannot be made after that time has elapsed. [Section 5.114 inserted by No. 1 of 2007 s. 11; amended by No. 17 of 2009 s. 44.] 5.115. Complaints officer to send complaint of serious breach to Departmental CEO (1) If it appears to a complaints officer that a complaint a person seeks to make under section 5.107 discloses a serious breach, the complaints officer is required to send the complaint to the Departmental CEO. (2) If the complaints officer sends the complaint to the Departmental CEO, the complaints officer is required to notify each of the parties. [Section 5.115 inserted by No. 1 of 2007 s. 11; amended by No. 17 of 2009 s. 44.] 5.116. Allegation by Departmental CEO of serious breach (1) If - (a) a person sends to the Departmental CEO a complaint under section 5.114(1) that a council member has committed a serious breach; or (b) a complaints officer sends to the Departmental CEO, under section 5.115(1), a complaint that appears to disclose a serious breach, the Departmental CEO has to decide whether to make an allegation under subsection (2). (2) If the Departmental CEO considers it appropriate to do so, the Departmental CEO may, whether or not a complaint has been sent to the Departmental CEO, make an allegation to the State Administrative Tribunal that the council member committed a serious breach. (3) In deciding whether it would be appropriate to make an allegation to the State Administrative Tribunal, the Departmental CEO has to consider whether it would be more appropriate for the matter to be dealt with in another way. (4) The Departmental CEO cannot make an allegation under subsection (2) if the council member has already been tried by a court for the offence the commission of which is the serious breach. (5) Within 14 days after the day on which the Departmental CEO receives a complaint that is sent to the Departmental CEO under section 5.114 or 5.115, the Departmental CEO is required to give each party notice in writing - (a) acknowledging that the complaint is in accordance with the Act; and (b) stating that the Departmental CEO will decide whether to make an allegation under subsection (2). (6) The fact that a person who made a complaint does not want an allegation arising from the complaint to be made to the State Administrative Tribunal does not prevent the Departmental CEO from making the allegation. [Section 5.116 inserted by No. 1 of 2007 s. 11; amended by No. 17 of 2009 s. 44.] 5.117. Punishment for serious breach (1) If, on an allegation under section 5.116(2), the State Administrative Tribunal finds that a person committed a serious breach, it may - (a) order that - (i) the person against whom the allegation was made be publicly censured as specified in the order; (ii) the person against whom the allegation was made apologise publicly as specified in the order; (iii) the person against whom the allegation was made undertake training as specified in the order; (iv) the person against whom the allegation was made is suspended for a period of not more than 6 months specified in the order; or (v) the person against whom the allegation was made is, for a period of not more than 5 years specified in the order, disqualified from holding office as a member of a council; or (b) order 2 or more of the sanctions described in paragraph (a). (2) An order described in subsection (1)(a)(iv) or (v) may be expressed in such a way that the order - (a) only takes effect if, on finding that the person subject to the order has not complied with a condition specified in the order, the State Administrative Tribunal directs under subsection (7) that the order take effect; and (b) lapses if it has not taken effect within a period specified in the order, and an order so expressed is called a suspended order. (3) The period referred to in subsection (2)(b) cannot exceed 2 years. (4) The Departmental CEO may make an allegation to the State Administrative Tribunal that a person subject to a suspended order has failed to comply with a condition specified in the order. (5) The Departmental CEO must give a person notice in writing of a decision to make an allegation about the person under subsection (4). (6) If the State Administrative Tribunal receives an allegation under subsection (4), it must make a finding as to whether the alleged failure occurred. (7) If the State Administrative Tribunal finds that a person failed to comply with a condition of a suspended order, it may if it considers it appropriate to do so direct that the suspended order take effect. (8) When a council member is suspended under subsection (1)(a)(iv), section 8.29 applies to the member as if the council had been suspended. [Section 5.117 inserted by No. 1 of 2007 s. 11; amended by No. 17 of 2009 s. 44.] 5.118. Carrying out orders (1) The CEO of the local government concerned is required to arrange the publication of any censure ordered under section 5.110(6) by a standards panel and is to refer to the State Administrative Tribunal any failure to comply with any other order made under that subsection. (2) The Departmental CEO is required to arrange the publication of any censure ordered under section 5.113 or 5.117 by the State Administrative Tribunal and is to refer to the State Administrative Tribunal any failure to comply with any other order made under either of those sections. [Section 5.118 inserted by No. 1 of 2007 s. 11; amended by No. 17 of 2009 s. 44.] 5.119. State Administrative Tribunal's enforcement powers (1) If, under section 5.118, the CEO of a local government or the Departmental CEO refers to the State Administrative Tribunal a failure of a person to comply with an order of a standards panel or the State Administrative Tribunal, the State Administrative Tribunal may, if satisfied that the person failed to comply with the order, make an order described in section 5.117(1)(a)(iv) or (v). (2) Section 5.117(2) extends to an order made under subsection (1). [Section 5.119 inserted by No. 1 of 2007 s. 11; amended by No. 17 of 2009 s. 44.] 5.120. Complaints officer (1) Each local government is to designate a senior employee, as defined under section 5.37, to be its complaints officer. (2) If a local government does not have any other person as its complaints officer, the person holding office as, or acting as, its CEO is its complaints officer. [Section 5.120 inserted by No. 1 of 2007 s. 11.] 5.121. Register of certain complaints of minor breaches (1) The complaints officer for each local government is required to maintain a register of complaints which records all complaints that result in action under section 5.110(6)(b) or (c). (2) The register of complaints is to include, for each recorded complaint - (a) the name of the council member about whom the complaint is made; (b) the name of the person who makes the complaint; (c) a description of the minor breach that the standards panel finds has occurred; and (d) details of the action taken under section 5.110(6)(b) or (c). [Section 5.121 inserted by No. 1 of 2007 s. 11.] 5.122. Standards panels (1) The Minister is to establish a standards panel (the primary standards panel). (2) The Minister may establish other standards panels. (3) Schedule 5.1 applies to a standards panel. [Section 5.122 inserted by No. 1 of 2007 s. 11.] 5.123. Confidentiality (1) A person who - (a) makes a complaint during a campaign period; (b) performs a function under this Act in respect of a complaint made during a campaign period; or (c) as a result of anything done under this Division, becomes aware of any detail of a complaint made during a campaign period knowing it to be relevant to the complaint, and during the campaign period discloses information that the complaint has been made, or discloses information of any detail of the complaint, commits an offence. (2) It is not an offence against subsection (1) to disclose information if - (a) the disclosure is made for the purposes of investigating or dealing with the complaint; (b) the disclosure is required under a written law; (c) the complaint to which the information relates is a complaint of a minor breach and a standards panel has dealt with the breach under section 5.110(6)(b) or (c); or (d) the complaint to which the information relates is a complaint of a serious breach and the State Administrative Tribunal has made an order under section 5.117(1). (3) In this section - campaign period means the period beginning on the first day of the period referred to in section 4.49(a) and ending on election day as that term is defined in section 4.1. [Section 5.123 inserted by No. 1 of 2007 s. 11.] 5.124. Giving false or misleading information (1) A person commits an offence if the person gives information, in any of the circumstances described in subsection (2), knowing the information to be false or misleading in a material particular. (2) The circumstances in which subsection (1) applies are - (a) when the information is given in a complaint under section 5.107 or 5.114; (b) when the information is given to a person for the purposes of an investigation of whether or not a breach has been committed; or (c) when the information is given to a standards panel. [Section 5.124 inserted by No. 1 of 2007 s. 11.] 5.125. Review of certain decisions (1) A party may apply to the State Administrative Tribunal for a review of a decision of a standards panel. (2) In subsection (1) - decision means a decision to dismiss a complaint or to make an order. [Section 5.125 inserted by No. 1 of 2007 s. 11.] Part 6 - Financial management What this Part is about This Part deals with the financial management of local governments, including - (a) annual budgeting; (b) financial accounting and reporting of the funds of local governments; and (c) the ways (including rates and service charges, fees, charges and borrowings) in which the activities of local governments are financed. Division 1 - Introduction 6.1. Terms used in this Part In this Part, unless the contrary intention appears - annual budget means the annual budget adopted by a local government under section 6.2; budget deficiency means, in relation to a financial year, the amount referred to in section 6.2(2)(c); differential general rate means the rate imposed under section 6.33; general rate means a rate imposed in accordance with section 6.32(1)(a); minimum payment means an amount imposed under section 6.35; service charge means a service charge imposed under section 6.38; specified area rate means a rate imposed under section 6.37; trust fund means the trust fund established by a local government under section 6.9. [Section 6.1 amended by No. 55 of 2004 s. 688.] Division 2 - Annual budget 6.2. Local government to prepare annual budget (1) During the period from 1 June in a financial year to 31 August in the next financial year, or such extended time as the Minister allows, each local government is to prepare and adopt*, in the form and manner prescribed, a budget for its municipal fund for the financial year ending on the 30 June next following that 31 August. * Absolute majority required. (2) In the preparation of the annual budget the local government is to have regard to the contents of the plan for the future of the district made in accordance with section 5.56 and to prepare a detailed estimate for the current year of - (a) the expenditure by the local government; (b) the revenue and income, independent of general rates, of the local government; and (c) the amount required to make up the deficiency, if any, shown by comparing the estimated expenditure with the estimated revenue and income. (3) For the purposes of subsections (2)(a) and (b) all expenditure, revenue and income of the local government is to be taken into account unless otherwise prescribed. (4) The annual budget is to incorporate - (a) particulars of the estimated expenditure proposed to be incurred by the local government; (b) detailed information relating to the rates and service charges which will apply to land within the district including - (i) the amount it is estimated will be yielded by the general rate; and (ii) the rate of interest (if any) to be charged by the local government on unpaid rates and service charges; (c) the fees and charges proposed to be imposed by the local government; (d) the particulars of borrowings and other financial accommodation proposed to be entered into by the local government; (e) details of the amounts to be set aside in, or used from, reserve accounts and of the purpose for which they are to be set aside or used; (f) particulars of proposed land transactions and trading undertakings (as those terms are defined in and for the purpose of section 3.59) of the local government; and (g) such other matters as are prescribed. (5) Regulations may provide for - (a) the form of the annual budget; (b) the contents of the annual budget; and (c) the information to be contained in or to accompany the annual budget. [Section 6.2 amended by No. 49 of 2004 s. 42(8) and 56.] 6.3. Budget for other circumstances A local government is required to prepare and adopt* a budget in a form and manner similar to the annual budget with such modifications as are necessary to meet the case - (a) where required to do so in consequence of the quashing of - (i) a general valuation; or (ii) a rate or service charge, by a court or by the State Administrative Tribunal; or (b) if, at any time after the imposition of rates in a financial year it intends to impose a supplementary general rate or specified area rate for the unexpired portion of the financial year. * Absolute majority required. [Section 6.3 amended by No. 55 of 2004 s. 689.] Division 3 - Reporting on activities and finance 6.4. Financial report (1) A local government is to prepare an annual financial report for the preceding financial year and such other financial reports as are prescribed. (2) The financial report is to - (a) be prepared and presented in the manner and form prescribed; and (b) contain the prescribed information. (3) By 30 September following each financial year or such extended time as the Minister allows, a local government is to submit to its auditor - (a) the accounts of the local government, balanced up to the last day of the preceding financial year; and (b) the annual financial report of the local government for the preceding financial year. Division 4 - General financial provisions 6.5. Accounts and records The CEO has a duty - (a) to ensure that there are kept, in accordance with regulations, proper accounts and records of the transactions and affairs of the local government; and (b) to keep the accounts and records up to date and ready for inspection at any time by persons authorised to do so under this Act or another written law. 6.6. Funds to be established (1) A local government is to have - (a) a municipal fund; and (b) a trust fund. (2) The municipal fund is to be kept separate and distinct from the trust fund. 6.7. Municipal fund (1) All money and the value of all assets received or receivable by a local government are to be held and brought to account in its municipal fund unless required by this Act or any other written law to be held in the trust fund. (2) Money held in the municipal fund may be applied towards the performance of the functions and the exercise of the powers conferred on the local government by this Act or any other written law. 6.8. Expenditure from municipal fund not included in annual budget (1) A local government is not to incur expenditure from its municipal fund for an additional purpose except where the expenditure - (a) is incurred in a financial year before the adoption of the annual budget by the local government; (b) is authorised in advance by resolution*; or (c) is authorised in advance by the mayor or president in an emergency. * Absolute majority required. (1a) In subsection (1) - additional purpose means a purpose for which no expenditure estimate is included in the local government's annual budget. (2) Where expenditure has been incurred by a local government - (a) pursuant to subsection (1)(a), it is to be included in the annual budget for that financial year; and (b) pursuant to subsection (1)(c), it is to be reported to the next ordinary meeting of the council. [Section 6.8 amended by No. 1 of 1998 s. 19.] 6.9. Trust fund (1) A local government is to hold in the trust fund all money or the value of assets - (a) that are required by this Act or any other written law to be credited to that fund; and (b) held by the local government in trust. (2) Money or other property held in the trust fund is to be applied for the purposes of, and in accordance with, the trusts affecting it. (3) Where money or other property is held in the trust fund, the local government is to - (a) in the case of money, pay it to the person entitled to it together with, if the money has been invested, any interest earned from that investment; (b) in the case of property, deliver it to the person entitled to it. (4) Where money has been held in the trust fund for 10 years it may be transferred by the local government to the municipal fund but the local government is required to repay the money, together with any interest earned from its investment, from that fund to a person claiming and establishing a right to the repayment. [Section 6.9 amended by No. 49 of 2004 s. 57.] 6.10. Financial management regulations Regulations may provide for - (a) the security and banking of money received by a local government; (b) the keeping of financial records by a local government; (c) the management by a local government of its assets, liabilities and revenue; and (d) the general management of, and the authorisation of payments out of - (i) the municipal fund; and (ii) the trust fund, of a local government. 6.11. Reserve accounts (1) Subject to subsection (5), where a local government wishes to set aside money for use for a purpose in a future financial year, it is to establish and maintain a reserve account for each such purpose. (2) Subject to subsection (3), before a local government - (a) changes* the purpose of a reserve account; or (b) uses* the money in a reserve account for another purpose, it must give one month's local public notice of the proposed change of purpose or proposed use. * Absolute majority required. (3) A local government is not required to give local public notice under subsection (2) - (a) where the change of purpose or of proposed use of money has been disclosed in the annual budget of the local government for that financial year; or (b) in such other circumstances as are prescribed. (4) A change of purpose of, or use of money in, a reserve account is to be disclosed in the annual financial report for the year in which the change occurs. (5) Regulations may prescribe the circumstances and the manner in which a local government may set aside money for use for a purpose in a future financial year without the requirement to establish and maintain a reserve account. 6.12. Power to defer, grant discounts, waive or write off debts (1) Subject to subsection (2) and any other written law, a local government may - (a) when adopting the annual budget, grant* a discount or other incentive for the early payment of any amount of money; (b) waive or grant concessions in relation to any amount of money; or (c) write off any amount of money, which is owed to the local government. * Absolute majority required. (2) Subsection (1)(a) and (b) do not apply to an amount of money owing in respect of rates and service charges. (3) The grant of a concession under subsection (1)(b) may be subject to any conditions determined by the local government. (4) Regulations may prescribe circumstances in which a local government is not to exercise a power under subsection (1) or regulate the exercise of that power. [Section 6.12 amended by No. 64 of 1998 s. 39.] 6.13. Interest on money owing to local governments (1) Subject to any other written law, a local government may resolve* to require a person to pay interest at the rate set in its annual budget on any amount of money (other than rates and service charges) which - (a) that person owes to the local government; and (b) has been owed for the period of time referred to in subsection (6). * Absolute majority required. (2) A resolution under subsection (1) is to be included in the annual budget. (3) The rate of interest that may be set by the local government under this section is not to exceed the rate for the time being prescribed as the maximum rate of interest that may be set for the purposes of this section. (4) Where a local government imposes interest under subsection (1) on any outstanding amount of money the local government is not to also impose an additional charge in relation to that amount. (5) Accrued interest is, for the purpose of its recovery, taken to form part of the money owed to the local government on which it is charged. (6) A local government is not to impose interest on any amount of money under subsection (1) until the money has been owed to the local government for the period of time set by the local government in its annual budget (not being less than 35 days) after the date which is stated on the relevant account for payment as being the date the account was issued. (7) Regulations may provide for the method of calculation of interest. 6.14. Power to invest (1) Subject to the regulations, money held in the municipal fund or the trust fund of a local government that is not, for the time being, required by the local government for any other purpose may be invested in accordance with Part III of the Trustees Act 1962. (2) Regulations in relation to investments by local governments may - [(a), (b) deleted] (c) prescribe circumstances in which a local government is required to invest money held by it; and (d) provide for the application of investment earnings; and (e) generally provide for the management of those investments. [Section 6.14 amended by No. 49 of 2004 s. 58; No. 17 of 2009 s. 36.] Division 5 - Financing local government activities Subdivision 1 - Introduction 6.15. Local government's ability to receive revenue and income (1) A local government may receive revenue or income - (a) from - (i) rates; (ii) service charges; (iii) fees and charges; (iv) borrowings; (v) investments; or (vi) any other source, authorised by or under this Act or another written law; or (b) from - (i) dealings in property; or (ii) grants or gifts. (2) Nothing in subsection (1)(a) authorises the making by a local government of a local law providing for the receipt of revenue or income by the local government from a source not contemplated by or under this Act. Subdivision 2 - Fees and charges 6.16. Imposition of fees and charges (1) A local government may impose* and recover a fee or charge for any goods or service it provides or proposes to provide, other than a service for which a service charge is imposed. * Absolute majority required. (2) A fee or charge may be imposed for the following - (a) providing the use of, or allowing admission to, any property or facility wholly or partly owned, controlled, managed or maintained by the local government; (b) supplying a service or carrying out work at the request of a person; (c) subject to section 5.94, providing information from local government records; (d) receiving an application for approval, granting an approval, making an inspection and issuing a licence, permit, authorisation or certificate; (e) supplying goods; (f) such other service as may be prescribed. (3) Fees and charges are to be imposed when adopting the annual budget but may be - (a) imposed* during a financial year; and (b) amended* from time to time during a financial year. * Absolute majority required. 6.17. Setting the level of fees and charges (1) In determining the amount of a fee or charge for a service or for goods a local government is required to take into consideration the following factors - (a) the cost to the local government of providing the service or goods; (b) the importance of the service or goods to the community; and (c) the price at which the service or goods could be provided by an alternative provider. (2) A higher fee or charge or additional fee or charge may be imposed for an expedited service or supply of goods if it is requested that the service or goods be provided urgently. (3) The basis for determining a fee or charge is not to be limited to the cost of providing the service or goods other than a service - (a) under section 5.96; (b) under section 6.16(2)(d); or (c) prescribed under section 6.16(2)(f), where the regulation prescribing the service also specifies that such a limit is to apply to the fee or charge for the service. (4) Regulations may - (a) prohibit the imposition of a fee or charge in prescribed circumstances; or (b) limit the amount of a fee or charge in prescribed circumstances. 6.18. Effect of other written laws (1) If the amount of a fee or charge for a service or for goods is determined under another written law a local government may not - (a) determine an amount that is inconsistent with the amount determined under the other written law; or (b) charge a fee or charge in addition to the amount determined by or under the other written law. (2) A local government is not to impose a fee or charge for a service or goods under this Act if the imposition of a fee or charge for the service or goods is prohibited under another written law. 6.19. Local government to give notice of fees and charges If a local government wishes to impose any fees or charges under this Subdivision after the annual budget has been adopted it must, before introducing the fees or charges, give local public notice of - (a) its intention to do so; and (b) the date from which it is proposed the fees or charges will be imposed. Subdivision 3 - Borrowings 6.20. Power to borrow (1) Subject to this Act, a local government may - (a) borrow or re-borrow money; (b) obtain credit; or (c) arrange for financial accommodation to be extended to the local government in ways additional to or other than borrowing money or obtaining credit, to enable the local government to perform the functions and exercise the powers conferred on it under this Act or any other written law. (2) Where, in any financial year, a local government proposes to exercise a power under subsection (1) (power to borrow) and details of that proposal have not been included in the annual budget for that financial year - (a) unless the proposal is of a prescribed kind, the local government must give one month's local public notice of the proposal; and (b) the resolution to exercise that power is to be by absolute majority. (3) Where a local government has exercised a power to borrow and - (a) it does not wish to proceed with the performance of the function or the exercise of the power for which the power to borrow was exercised; or (b) after having completed the performance of the function or the exercise of the power for which the power to borrow was exercised, any part of the money borrowed, credit obtained or financial accommodation arranged has not been expended or utilized, the local government may resolve* to expend the money or utilize the credit or financial accommodation for another purpose if one month's local public notice is given of the proposed change of purpose. * Absolute majority required. (4) A local government is not required to give local public notice under subsection (3) - (a) where the change of purpose has been disclosed in the annual budget of the local government for the relevant financial year; or (b) in such other circumstances as are prescribed. (5) A change of purpose referred to in subsection (3) is to be disclosed in the annual financial report for the year in which the change occurs. 6.21. Restrictions on borrowing (1) Where, under section 6.20(1), a regional local government borrows money, obtains credit or arranges for financial accommodation to be extended to the regional local government that money, credit or financial accommodation is to be secured only - (a) by the regional local government giving security over the financial contributions of the participants to the regional local government's funds as set out or provided for in the establishment agreement for the regional local government; (b) by the regional local government giving security over Government grants which were not given to the regional local government for a specific purpose; or (c) by a participant giving security over its general funds to the extent agreed by the participant. (1a) Despite subsection (1)(a) and (c), security cannot be given over - (a) the financial contributions of a particular participant to the regional local government's funds; or (b) the general funds of a particular participant, if the participant is not a party to the activity or transaction for which the money is to be borrowed by, the credit is to be obtained for, or the financial accommodation is to be extended to, the regional local government. (2) Where, under section 6.20(1), a local government borrows money, obtains credit or arranges for financial accommodation to be extended to the local government that money, credit or financial accommodation is only to be secured by giving security over the general funds of the local government. (3) The Treasurer or a person authorised in that behalf by the Treasurer may give a direction in writing to a local government with respect to the exercise of its power under section 6.20(1) either generally or in relation to a particular proposed borrowing and the local government is to give effect to any such direction. (4) In this section and in section 6.23 - general funds means the revenue or income from - (a) general rates; (b) Government grants which were not given to the local government for a specific purpose; and (c) such other sources as are prescribed. [Section 6.21 amended by No. 49 of 2004 s. 59.] 6.22. Appointment of receivers (1) This section applies if a local government defaults in the payment of any principal money or interest secured by a security. (2) On petition of the security holder the Supreme Court may appoint up to 3 receivers of the income of the local government. (3) A receiver so appointed is an officer of the Supreme Court and is to act under the direction of the Court. (4) A receiver is entitled to such remuneration as is fixed by the Supreme Court. (5) The Supreme Court may remove a receiver and may appoint a receiver in the place of a receiver who has been removed or dies. 6.23. Powers of receivers (1) A receiver is entitled to receive the general funds of the local government. (2) For the purposes of subsection (1) a receiver has the powers which a local government has with respect to general rates under this Part. (3) In relation to a regional local government a receiver is entitled to receive whichever of the following over which security has been given in a particular case - (a) the financial contributions of the participants to the regional local government's funds as set out or provided for in the establishment agreement for the regional local government; (b) Government grants which were not given to the regional local government for a specific purpose; (c) the general funds of a participant to the extent that those funds secure either money borrowed by, credit obtained for, or financial accommodation extended to, the regional local government. [Section 6.23 amended by No. 49 of 2004 s. 60.] 6.24. Application of money A receiver holds all the money received by the receiver after payment of costs and expenses and his or her remuneration for the benefit of the security holders according to their respective priorities and the balance for the local government. Division 6 - Rates and service charges Subdivision 1 - Introduction and basis of rating 6.25. Terms used in this Division and Schedule 6.1 In this Division and in Schedule 6.1, unless the context requires otherwise - Government agreement has the same meaning as under the Government Agreements Act 1979; gross rental value in relation to land has the same meaning as under the Valuation of Land Act 1978; interim valuation has the same meaning as under the Valuation of Land Act 1978; owner - (a) in relation to land in a retirement village as defined in the Retirement Villages Act 1992 means - (i) the owner, as defined in that Act section 3(1); or (ii) a mortgagee in possession of the land; or (iii) a trustee, executor, administrator, attorney or agent of a person mentioned in this paragraph who is in possession of the land; (b) otherwise has the meaning given in section 1.4; rate record means the rate record required to be kept under section 6.39; unimproved value in relation to land has the same meaning as under the Valuation of Land Act 1978; vacant land has the same meaning as under the Valuation of Land Act 1978. [Section 6.25 amended by No. 17 of 2009 s. 37.] 6.26. Rateable land (1) Except as provided in this section all land within a district is rateable land. (2) The following land is not rateable land - (a) land which is the property of the Crown and - (i) is being used or held for a public purpose; or (ii) is unoccupied, except - (I) where any person is, under paragraph (e) of the definition of "owner" in section 1.4, the owner of the land other than by reason of that person being the holder of a prospecting licence held under the Mining Act 1978 in respect of land the area of which does not exceed 10 hectares or a miscellaneous licence held under that Act; or (II) where and to the extent and manner in which a person mentioned in paragraph (f) of the definition of "owner" in section 1.4 occupies or makes use of the land; (b) land in the district of a local government while it is owned by the local government and is used for the purposes of that local government other than for purposes of a trading undertaking (as that term is defined in and for the purpose of section 3.59) of the local government; (c) land in a district while it is owned by a regional local government and is used for the purposes of that regional local government other than for the purposes of a trading undertaking (as that term is defined in and for the purpose of section 3.59) of the regional local government; (d) land used or held exclusively by a religious body as a place of public worship or in relation to that worship, a place of residence of a minister of religion, a convent, nunnery or monastery, or occupied exclusively by a religious brotherhood or sisterhood; (e) land used exclusively by a religious body as a school for the religious instruction of children; (f) land used exclusively as a non-government school within the meaning of the School Education Act 1999; (g) land used exclusively for charitable purposes; (h) land vested in trustees for agricultural or horticultural show purposes; (i) land owned by Co-operative Bulk Handling Limited or leased from the Crown or a statutory authority (within the meaning of that term in the Financial Management Act 2006) by that company and used solely for the storage of grain where that company has agreed in writing to make a contribution to the local government; (j) land which is exempt from rates under any other written law; and (k) land which is declared by the Minister to be exempt from rates. (3) If Co-operative Bulk Handling Limited and the relevant local government cannot reach an agreement under subsection (2)(i) either that company or the local government may refer the matter to the Minister for determination of the terms of the agreement and the decision of the Minister is final. (4) The Minister may from time to time, under subsection (2)(k), declare that any land or part of any land is exempt from rates and by subsequent declaration cancel or vary the declaration. (5) Notice of any declaration made under subsection (4) is to be published in the Gazette. (6) Land does not cease to be used exclusively for a purpose mentioned in subsection (2) merely because it is used occasionally for another purpose which is of a charitable, benevolent, religious or public nature. [Section 6.26 amended by No. 36 of 1999 s. 247; No. 77 of 2006 s. 17.] 6.27. Multiple rating Where - (a) under the Mining Act 1978 or a Government agreement a person holds in respect of land a mining tenement within the meaning given to that term by that Act or agreement; (b) in accordance with the Mining Act 1978 a person holds, occupies, uses or enjoys in respect of land a mining tenement within the meaning given to that term by the Mining Act 1904 3; or (c) under the Petroleum and Geothermal Energy Resources Act 1967 a person holds in respect of land a permit, drilling reservation, lease or licence, the land the subject of that tenement, permit, drilling reservation, lease or licence is rateable land under this Act notwithstanding that the land may be rateable under this Act in the hands of the holder of another estate in that land. [Section 6.27 amended by No. 35 of 2007 s. 99(3).] 6.28. Basis of rates (1) The Minister is to - (a) determine the method of valuation of land to be used by a local government as the basis for a rate; and (b) publish a notice of the determination in the Government Gazette. (2) In determining the method of valuation of land to be used by a local government the Minister is to have regard to the general principle that the basis for a rate on any land is to be - (a) where the land is used predominantly for rural purposes, the unimproved value of the land; and (b) where the land is used predominantly for non-rural purposes, the gross rental value of the land. (3) The unimproved value or gross rental value, as the case requires, of rateable land in the district of a local government is to be recorded in the rate record of that local government. (4) Subject to subsection (5), for the purposes of this section the valuation to be used by a local government is to be the valuation in force under the Valuation of Land Act 1978 as at 1 July in each financial year. (5) Where during a financial year - (a) an interim valuation is made under the Valuation of Land Act 1978; (b) a valuation comes into force under the Valuation of Land Act 1978 as a result of the amendment of a valuation under that Act; or (c) a new valuation is made under the Valuation of Land Act 1978 in the course of completing a general valuation that has previously come into force, the interim valuation, amended valuation or new valuation, as the case requires, is to be used by a local government for the purposes of this section. [Section 6.28 amended by No. 1 of 1998 s. 20.] 6.29. Valuation and rates on mining and petroleum interests (1) In this section - relevant interest means - (a) a mining tenement held under the Mining Act 1978 (whether within the meaning given to that term by that Act or by the Mining Act 1904); or (b) a permit, drilling reservation, lease or licence held under the Petroleum and Geothermal Energy Resources Act 1967. (2) Regardless of any determination made under section 6.28(1), the basis for a rate on a relevant interest is to be the unimproved value of the land, except as provided for in subsection (3). (3) Subsection (2) does not apply to a relevant interest in a portion of land on which capital improvements are located if - (a) the Minister has determined under section 6.28(1) that the gross rental value of the land is to be used as the basis for a rate on that interest; and (b) the determination expressly excludes the application of subsection (2). (4) The Minister cannot determine under section 6.28(1) that the gross rental value of the land is to be used as the basis for a rate on a relevant interest in a portion of land if another estate in that portion of land is rateable on the basis of the gross rental value of the land. (5) For the purpose of subsection (3)(b) a determination is to be taken to expressly exclude the application of subsection (2) if the determination - (a) was made before the commencement of the Local Government Amendment Act 2009 section 38; and (b) specifically applies to the particular relevant interest. [Section 6.29 inserted by No. 17 of 2009 s. 38.] 6.30. Valuation of and rates on certain land (1) Subject to subsection (2), the owner of any land - (a) held or granted pursuant to a Government agreement, which agreement provides that for the purposes of imposing rates under this Act, the land is to be assessed on the unimproved value thereof; or (b) held under a production licence for petroleum granted under the Petroleum Act 1967, and to whom this section applies by virtue of the operation of section 533AA of the Local Government Act 1960 4 as in force before the commencement of this Act is to have the land valued for the purpose of imposing rates under this Act on the following basis - $1.00 per 4 000 square metres for each of the first 40 000 hectares or part thereof; $0.75 per 4 000 square metres for each of the second 40 000 hectares or part thereof; $0.50 per 4 000 square metres for each of the third and fourth 40 000 hectares or part thereof; $0.25 for each 4 000 square metres in excess of 160 000 hectares. (2) This section does not apply to any part of the land upon which - (a) there is erected a dwelling house; or (b) there stand any improvements that are used in connection with a commercial undertaking other than that of the person for the time being entitled to the benefit of the agreement referred to in subsection (1)(a) or the production licence for petroleum referred to in paragraph (b) of that subsection. 6.31. Phasing in of certain valuations Schedule 6.1 which deals with the phasing in of valuations has effect. Subdivision 2 - Categories of rates and service charges 6.32. Rates and service charges (1) When adopting the annual budget, a local government - (a) in order to make up the budget deficiency, is to impose* a general rate on rateable land within its district, which rate may be imposed either - (i) uniformly; or (ii) differentially; (b) may impose* on rateable land within its district - (i) a specified area rate; or (ii) a minimum payment; and (c) may impose* a service charge on land within its district. * Absolute majority required. (2) Where a local government resolves to impose a rate it is required to - (a) set a rate which is expressed as a rate in the dollar of the gross rental value of rateable land within its district to be rated on gross rental value; and (b) set a rate which is expressed as a rate in the dollar of the unimproved value of rateable land within its district to be rated on unimproved value. (3) A local government - (a) may, at any time after the imposition of rates in a financial year, in an emergency, impose* a supplementary general rate or specified area rate for the unexpired portion of the current financial year; and (b) is to, after a court or the State Administrative Tribunal has quashed a general valuation, rate or service charge, impose* a new general rate, specified area rate or service charge. * Absolute majority required. (4) Where a court or the State Administrative Tribunal has quashed a general valuation the quashing does not render invalid a rate imposed on the basis of the quashed valuation in respect of any financial year prior to the financial year in which the proceedings which resulted in that quashing were commenced. [Section 6.32 amended by No. 55 of 2004 s. 690.] 6.33. Differential general rates (1) A local government may impose differential general rates according to any, or a combination, of the following characteristics - (a) the purpose for which the land is zoned, whether or not under a local planning scheme in force under the Planning and Development Act 2005; (b) a purpose for which the land is held or used as determined by the local government; (c) whether or not the land is vacant land; or (d) any other characteristic or combination of characteristics prescribed. (2) Regulations may - (a) specify the characteristics under subsection (1) which a local government is to use; or (b) limit the characteristics under subsection (1) which a local government is permitted to use. (3) In imposing a differential general rate a local government is not to, without the approval of the Minister, impose a differential general rate which is more than twice the lowest differential general rate imposed by it. (4) If during a financial year, the characteristics of any land which form the basis for the imposition of a differential general rate have changed, the local government is not to, on account of that change, amend the assessment of rates payable on that land in respect of that financial year but this subsection does not apply in any case where section 6.40(1)(a) applies. (5) A differential general rate that a local government purported to impose under this Act before the Local Government Amendment Act 2009 section 39(1)(a) came into operation is to be taken to have been as valid as if the amendment made by that paragraph had been made before the purported imposition of that rate. [Section 6.33 amended by No. 38 of 2005 s. 15; No. 17 of 2009 s. 39.] 6.34. Limit on revenue or income from general rates Unless the Minister otherwise approves, the amount shown in the annual budget as being the amount it is estimated will be yielded by the general rate is not to - (a) be more than 110% of the amount of the budget deficiency; or (b) be less than 90% of the amount of the budget deficiency. 6.35. Minimum payment (1) Subject to this section, a local government may impose on any rateable land in its district a minimum payment which is greater than the general rate which would otherwise be payable on that land. (2) A minimum payment is to be a general minimum but, subject to subsection (3), a lesser minimum may be imposed in respect of any portion of the district. (3) In applying subsection (2) the local government is to ensure the general minimum is imposed on not less than - (a) 50% of the total number of separately rated properties in the district; or (b) 50% of the number of properties in each category referred to in subsection (6), on which a minimum payment is imposed. (4) A minimum payment is not to be imposed on more than the prescribed percentage of - (a) the number of separately rated properties in the district; or (b) the number of properties in each category referred to in subsection (6), unless the general minimum does not exceed the prescribed amount. (5) If a local government imposes a differential general rate on any land on the basis that the land is vacant land it may, with the approval of the Minister, impose a minimum payment in a manner that does not comply with subsections (2), (3) and (4) for that land. (6) For the purposes of this section a minimum payment is to be applied separately, in accordance with the principles set forth in subsections (2), (3) and (4) in respect of each of the following categories - (a) to land rated on gross rental value; (b) to land rated on unimproved value; and (c) to each differential rating category where a differential general rate is imposed. [Section 6.35 amended by No. 49 of 2004 s. 61.] 6.36. Local government to give notice of certain rates (1) Before imposing any differential general rates or a minimum payment applying to a differential rate category under section 6.35(6)(c) a local government is to give local public notice of its intention to do so. (2) A local government is required to ensure that a notice referred to in subsection (1) is published in sufficient time to allow compliance with the requirements specified in this section and section 6.2(1). (3) A notice referred to in subsection (1) - (a) may be published within the period of 2 months preceding the commencement of the financial year to which the proposed rates are to apply on the basis of the local government's estimate of the budget deficiency; (b) is to contain - (i) details of each rate or minimum payment the local government intends to impose; (ii) an invitation for submissions to be made by an elector or a ratepayer in respect of the proposed rate or minimum payment and any related matters within 21 days (or such longer period as is specified in the notice) of the notice; and (iii) any further information in relation to the matters specified in subparagraphs (i) and (ii) which may be prescribed; and (c) is to advise electors and ratepayers of the time and place where a document describing the objects of, and reasons for, each proposed rate and minimum payment may be inspected. (4) The local government is required to consider any submissions received before imposing the proposed rate or minimum payment with or without modification. (5) Where a local government - (a) in an emergency, proposes to impose a supplementary general rate or specified area rate under section 6.32(3)(a); or (b) proposes to modify the proposed rates or minimum payments after considering any submissions under subsection (4), it is not required to give local public notice of that proposed supplementary general rate, specified area rate, modified rate or minimum payment. 6.37. Specified area rates (1) A local government may impose a specified area rate on rateable land within a portion of its district for the purpose of meeting the cost of the provision by it of a specific work, service or facility if the local government considers that the ratepayers or residents within that area - (a) have benefited or will benefit from; (b) have access to or will have access to; or (c) have contributed or will contribute to the need for, that work, service or facility. (2) A local government is required to - (a) use the money from a specified area rate for the purpose for which the rate is imposed in the financial year in which the rate is imposed; or (b) to place it in a reserve account established under section 6.11 for that purpose. (3) Where money has been placed in a reserve account under subsection (2)(b), the local government is not to - (a) change the purpose of the reserve account; or (b) use the money in the reserve account for a purpose other than the service for which the specified area rate was imposed, and section 6.11(2), (3) and (4) do not apply to such a reserve account. (4) A local government may only use the money raised from a specified area rate - (a) to meet the cost of providing the specific work, service or facility for which the rate was imposed; or (b) to repay money borrowed for anything referred to in paragraph (a) and interest on that money. (5) If a local government receives more money than it requires from a specified area rate on any land or if the money received from the rate is no longer required for the work, service or facility the local government - (a) may, and if so requested by the owner of the land is required to, make a refund to that owner which is proportionate to the contributions received by the local government; or (b) is required to allow a credit of an amount proportionate to the contribution received by the local government in relation to the land on which the rate was imposed against future liabilities for rates or service charges in respect of that land. 6.38. Service charges (1) A local government may impose on - (a) owners; or (b) occupiers, of land within the district or a defined part of the district a service charge for a financial year to meet the cost of providing a prescribed service in relation to the land. (2) A local government is required to - (a) use the money from a service charge in the financial year in which the charge is imposed; or (b) to place it in a reserve account established under section 6.11 for the purpose of that service. (3) Where money has been placed in a reserve account under subsection (2)(b), the local government is not to - (a) change the purpose of the reserve account; or (b) use the money in the reserve account for a purpose other than the service for which the charge was imposed, and subsections (2), (3) and (4) of section 6.11 do not apply to such a reserve account. (4) A local government may only use the money raised from a service charge - (a) to meet the cost of providing the specific service for which the service charge was imposed; or (b) to repay money borrowed for anything referred to in paragraph (a) and interest on that money. (5) If a local government receives more money than it requires from the service charge imposed under subsection (1)(a) it - (a) may, and if so requested by the owner of the land, is required to, make a refund to the owner of the land which is proportionate to the contributions received by the local government; or (b) is required to allow a credit of an amount proportionate to the contribution received by the local government in relation to any land on which the service charge was imposed against future liabilities for rates or service charges in respect of that land. (6) If a local government receives more money than it requires from the service charge imposed under subsection (1)(b) it is required to make a refund to the person who paid the service charge which is proportionate to the contributions received by the local government. Subdivision 3 - Imposition of rates and service charges 6.39. Rate record (1) As soon as practicable after a local government has resolved to impose rates in a financial year it is to ensure that a record is compiled, at the time and in the form and manner prescribed, for that financial year of - (a) all rateable land in its district; and (b) all land in its district on which a service charge is imposed. (2) A local government - (a) is required, from time to time, to amend a rate record for the current financial year to ensure that the information contained in the record is current and correct and that the record is in accordance with this Act; and (b) may amend the rate record for the 5 years preceding the current financial year. 6.40. Effect of amendment of rate record (1) Where the rate record in relation to any land is amended under section 6.39(2) as a result of a change in - (a) the rateable value of; (b) the rateability of; or (c) the rate imposed on, that land, the local government is to reassess the rates payable on the land and to give notice to the owner of the land of any change in the amount of rates payable on the land. (2) Where the rate record in relation to any land is amended under section 6.39(2) as a result of a change in a service charge imposed on that land, the local government is to reassess that service charge and to give notice to the owner or occupier of the land, as the case requires, of any change in the amount of the service charge payable on the land. (3) If, as a result of a reassessment of rates under subsection (1), a rate on any land is - (a) reduced, and that rate has already been paid to a local government, the local government - (i) may, and if so requested by the current owner of the land is required to, make a refund to that owner of the amount overpaid; or (ii) is required to allow a credit of the amount overpaid in relation to the land against future liabilities for rates or service charges in respect of that land; or (b) increased, that increased rate is the rate to which section 6.44 applies. (4) If, as a result of a reassessment of a service charge under subsection (2), a service charge on any land is - (a) reduced, and that service charge has already been paid to a local government - (i) by the owner, the local government - (I) may, and if so requested by the current owner of the land is required to, make a refund to that owner of the amount overpaid; or (II) is required to allow a credit of the amount overpaid in relation to the land against future liabilities for rates or service charges in respect of that land; or (ii) by the occupier, the local government is required to make a refund to the person who paid the service charge; or (b) increased, and that service charge was imposed on - (i) the owner, that increased service charge is the service charge to which section 6.44 applies; or (ii) the occupier, that increased service charge is a debt due to the local government by the person on whom the service charge was imposed. 6.41. Service of rate notice (1) A local government is required to give to - (a) the owner of rateable land; and (b) the owner or occupier, as the case requires, of land on which a service charge is imposed, a rate notice stating the date the rate notice was issued and incorporating or accompanied by the details and particulars prescribed. (2) The rate notice is to be given - (a) as soon as practicable after - (i) the rate record of the land is completed; or (ii) the rate record of the land is amended, if that amendment results in a change in the amount of rates or service charges payable on that land; or (b) where an election has been made under section 6.45 to pay rates or service charges by instalments, not less than 28 days before each instalment is due. (3) Notwithstanding sections 75 and 76 of the Interpretation Act 1984 service of the rate notice is deemed to have been effected if delivered to the address shown in the rate record for the owner at the time of delivery. Subdivision 4 - Payment of rates and service charges 6.42. Term used in s. 6.43, 6.44 and 6.52(1) In sections 6.43, 6.44 and 6.52(1) - service charge does not include a service charge imposed under section 6.38(1)(b) on the occupier of land who is not the owner of that land. 6.43. Rates and service charges are a charge on land Subject to the Rates and Charges (Rebates and Deferments) Act 1992, rates and service charges imposed under this Act, together with the costs of proceedings, if any, for the recovery of the rates or service charges, are a charge on the land rated or in relation to which the service charge is imposed. 6.44. Liability for rates or service charges (1) The owner for the time being of land on which a rate or service charge has been imposed is liable to pay the rate or service charge to the local government. (2) If there are 2 or more owners of the land they are jointly and severally liable to pay the rate or service charge, as the case requires. 6.45. Options for payment of rates or service charges (1) A rate or service charge is ordinarily payable to a local government by a single payment but the person liable for the payment of a rate or service charge may elect to make that payment to a local government, subject to subsection (3), by - (a) 4 equal or nearly equal instalments; or (b) such other method of payment by instalments as is set forth in the local government's annual budget. (2) Where, during a financial year, a rate notice is given after a reassessment of rates under section 6.40 the person to whom the notice is given may pay the rate or service charge - (a) by a single payment; or (b) by such instalments as are remaining under subsection (1)(a) or (b) for the remainder of that financial year. (3) A local government may impose an additional charge (including an amount by way of interest) where payment of a rate or service charge is made by instalments and that additional charge is, for the purpose of its recovery, taken to be a rate or service charge, as the case requires, that is due and payable. (4) Regulations may - (a) provide for the manner of making an election to pay by instalments under subsection (1) or (2); (b) prescribe circumstances in which payments may or may not be made by instalments; (c) prohibit or regulate any matters relating to payments by instalments; (d) provide for the time when, and manner in which, instalments are to be paid; (e) prescribe the maximum amount (including the maximum interest component) which may be imposed under subsection (3) by way of an additional charge; and (f) provide for any other matter relating to the payment of rates or service charges. 6.46. Discounts Subject to the Rates and Charges (Rebates and Deferments) Act 1992, a local government may, when imposing a rate or service charge, resolve* to grant a discount or other incentive for the early payment of any rate or service charge. * Absolute majority required. 6.47. Concessions Subject to the Rates and Charges (Rebates and Deferments) Act 1992, a local government may at the time of imposing a rate or service charge or at a later date resolve to waive* a rate or service charge or resolve to grant other concessions in relation to a rate or service charge. * Absolute majority required. 6.48. Regulation of grant of discounts and concessions Regulations may prescribe circumstances in which a local government is not to exercise a power under section 6.46 or 6.47 or regulate the exercise of the power. 6.49. Agreement as to payment of rates and service charges A local government may accept payment of a rate or service charge due and payable by a person in accordance with an agreement made with the person. 6.50. Rates or service charges due and payable (1) Subject to - (a) subsections (2) and (3); (b) any concession granted under section 6.47; and (c) the Rates and Charges (Rebates and Deferments) Act 1992, a rate or service charge becomes due and payable on such date as is determined by the local government. (2) The date determined by a local government under subsection (1) is not to be earlier than 35 days after the date noted on the rate notice as the date the rate notice was issued. (3) Where a person elects to pay a rate or service charge by instalments the second and each subsequent instalment does not become due and payable at intervals of less than 2 months. 6.51. Accrual of interest on overdue rates or service charges (1) A local government may at the time of imposing a rate or service charge resolve* to impose interest (at the rate set in its annual budget) on - (a) a rate or service charge (or any instalment of a rate or service charge); and (b) any costs of proceedings to recover any such charge, that remains unpaid after becoming due and payable. * Absolute majority required. (2) The rate of interest that may be set by the local government under this section is not to exceed the rate for the time being prescribed as the maximum rate of interest that may be set for the purposes of this section. (3) Accrued interest is, for the purpose of its recovery, taken to be a rate or service charge, as the case requires, that is due and payable. (4) If a person is entitled under the Rates and Charges (Rebates and Deferments) Act 1992 or under this Act (if the local government in a particular case so resolves) to a rebate or deferment in respect of a rate or service charge - (a) no interest is to accrue in respect of that rate or service charge payable by that person; and (b) no additional charge is to be imposed under section 6.45(3) on that person. (5) Regulations may provide for the method of calculation of interest. [Section 6.51 amended by No. 1 of 1998 s. 21(1); No. 49 of 2004 s. 62.] 6.52. Rates and service charges may be apportioned (1) Rates and service charges recoverable under this Act - (a) are apportionable between successive owners in respect of time as if they accrued due from day to day during the period for which they were imposed; and (b) are apportionable between owners of several portions of the land rated or in relation to which the service charge is imposed, as the case requires, according to the respective values of the portions. (2) Where, in accordance with this Act, any portion of a rate or service charge (other than a service charge imposed on an occupier under section 6.38(1)(b)) in respect of any land has been paid by a person other than the owner of the land, whether during or after the period for which the rates were imposed, the owner is liable, if there is no agreement between them to the contrary, to reimburse that other person the amount so paid. (3) This section does not affect the liability of a person to the local government. (4) An unsatisfied judgment or order of a court for the recovery of rates or service charges from a person is not a bar to the recovery of them from another person liable under this Act to pay them. 6.53. Land becoming or ceasing to be rateable land Where during a financial year - (a) land that was not rateable becomes rateable land; or (b) rateable land becomes land that is not liable to rates, the owner of that land - (c) is liable for rates proportionate to the portion of the year during which the land is rateable land; or (d) is entitled to a refund of an amount proportionate to the portion of the year during which the land is not rateable land, as the case requires. Subdivision 5 - Recovery of unpaid rates and service charges 6.54. Term used in s. 6.55, 6.60 and 6.62 In sections 6.55, 6.60 and 6.62 - service charge does not include a service charge imposed under section 6.38(1)(b) on the occupier of land who is not the owner of that land. 6.55. Recovery of rates and service charges (1) Subject to subsection (2) and the Rates and Charges (Rebates and Deferments) Act 1992 rates and service charges on land are recoverable by a local government from - (i) the owner at the time of the compilation of the rate record; or (ii) a person who whilst the rates or service charges are unpaid becomes the owner of the land. (2) A person who, by virtue of an Act relating to bankruptcy or insolvency or to the winding up of companies, has become the owner of land in the capacity of a trustee or liquidator, is not on that account personally liable to pay, out of the person's own money, rates or service charges which are already due on, or become due on that land while that person is the owner in that capacity. 6.56. Rates or service charges recoverable in court (1) If a rate or service charge remains unpaid after it becomes due and payable, the local government may recover it, as well as the costs of proceedings, if any, for that recovery, in a court of competent jurisdiction. (2) Rates or service charges due by the same person to the local government may be included in one writ, summons, or other process. [Section 6.56 amended by No. 84 of 2004 s. 80.] 6.57. Non-compliance with procedure in Act not to prevent recovery of rate or service charge In proceedings by or on behalf of a local government for the recovery of an amount due in respect of a rate or service charge, failure by the local government to comply in respect of the rate or service charge with the provisions of this Act, is not a defence, if it appears that it had the power to impose, and did in fact assent to the imposition of, the rate or service charge. 6.58. Defence in special cases If a person sued or proceeded against proves that a notice required to be given under Subdivision 3 has not been given, the claim of the local government does not on that account fail, but such objections as would have been competent on an application under Subdivision 7 for a review may be raised as a defence to the whole or part of the claim, unless they have already been unsuccessfully raised by the person on an application under that Subdivision for a review. [Section 6.58 amended by No. 55 of 2004 s. 691.] 6.59. Question of title to land not to affect jurisdiction A jurisdiction otherwise competent to entertain proceedings to recover rates or service charges, or consequent on the recovery of rates or service charges, or to hear an application for review or an appeal relating to the payment of rates or service charges is not affected on the ground that a question of title to land is raised in the proceedings, but an order or judgment in the matter is not evidence of title. [Section 6.59 amended by No. 55 of 2004 s. 692.] 6.60. Local government may require lessee to pay rent (1) In this section - lease includes an agreement whether made orally or in writing for the leasing or subleasing of land and includes a licence or arrangement for the use of land; lessor and lessee mean the parties to a lease and their respective successors in title. (2) If payment of a rate or service charge imposed in respect of any land is due and payable, notice may be given to the lessee of the land requiring the lessee to pay to the local government any rent as it falls due in satisfaction of the rate or service charge. (3) The local government is to give to the lessor a copy of the notice with an endorsement that the original of it has been given to the lessee. (4) The local government may recover the amount of the rate or service charge as a debt from the lessee if rent is not paid in accordance with the notice. (5) Where an amount is paid under this section to the local government - (a) the payment discharges the payer from any liability to any person to pay that amount as rent; (b) where as between a lessor and lessee the lessor is liable to pay the rate or service charge, the amount paid may be set off by the lessee against the rent payable to the lessor; and (c) if the amount exceeds the rent due, or if there is no rent due, the amount may be set off by the lessee against accruing rent, or the balance recovered from the lessor in a court of competent jurisdiction. (6) To the extent that an agreement purports to preclude a lessee from setting off or recovering payments made to a local government under this section, the agreement is of no effect. 6.61. Requirement to give name of person liable (1) On the request of a local government - (a) the occupier of property, or an agent of the owner of property, is required to disclose to the local government the name and address of the owner or of the person receiving or authorised to receive the rent of the property; and (b) the person receiving or authorised to receive the rent of the property is required to disclose the name and address of the owner of the property. (2) A person from whom information is requested in accordance with subsection (1) commits an offence if the person - (a) fails to give the information requested; or (b) gives information that is false or misleading in any material particular. 6.62. Application of money paid for rates and service charges Where money is paid to a local government in respect of rates or service charges imposed on land, the local government is to apply the money for or towards - (a) the rates or services charges due on the land in the order in which they become due; and (b) any outstanding costs of proceedings for the recovery of any such rates or charges. [Section 6.62 amended by No. 49 of 2004 s. 63.] Subdivision 6 - Actions against land where rates or service charges unpaid 6.63. Term used in this Subdivision In this Subdivision - service charge does not include a service charge imposed under section 6.38(1)(b) on the occupier of land who is not the owner of that land. 6.64. Actions to be taken (1) If any rates or service charges which are due to a local government in respect of any rateable land have been unpaid for at least 3 years the local government may, in accordance with the appropriate provisions of this Subdivision take possession of the land and hold the land as against a person having an estate or interest in the land and - (a) from time to time lease the land; (b) sell the land; (c) cause the land to be transferred to the Crown; or (d) cause the land to be transferred to itself. (2) On taking possession of any land under this section, the local government is to give to the owner of the land such notification as is prescribed and then to affix on a conspicuous part of the land a notice, in the form or substantially in the form prescribed. (3) Where payment of rates or service charges imposed in respect of any land is in arrears the local government has an interest in the land in respect of which it may lodge a caveat to preclude dealings in respect of the land, and may withdraw caveats so lodged by it. 6.65. Power to lease - procedure Schedule 6.2 has effect in relation to the exercise of a power under section 6.64(1)(a) (in this Subdivision and that Schedule referred to as the power to lease). 6.66. Effect of lease (1) Where a local government exercises the power to lease in relation to any land that land does not cease to be rateable land because of the exercise of that power. (2) A lessee from a local government is entitled, during the term of the lease, to possession of the land as against persons who have an estate or interest in the land, but this subsection does not affect - (a) the rights of the local government under the lease; (b) easements in favour of the public which affect the land; or (c) the rights of the Crown in right of the State or Commonwealth or a department, agency, or instrumentality of the Crown in right of the State or Commonwealth. (3) The exercise by a local government of a power to lease any land does not prejudice or affect the recovery of rates or taxes if any, due to the Crown in right of the State or Commonwealth, or a department or agency of the Crown in right of the State or Commonwealth. 6.67. Release of property after payment of arrears (1) Where, within 12 years of the taking of possession of any land by a local government under section 6.64, an entitled person pays to the local government all rates and service charges due and payable in respect of the land, the local government is required to give up possession of that land to the person unless it has exercised a power under section 6.64(1)(b), (c) or (d) in relation to the land. (2) If the local government has granted a lease of the land referred to in subsection (1) and the term of the lease has not expired, the lease subsists for the balance of the term as if it had been made between the lessee and the entitled person. (3) In this section - entitled person means the person who, if the local government had not taken possession of the land under section 6.64, would be entitled to possession of that land. 6.68. Exercise of power to sell land (1) Subject to subsection (2), a local government is not to exercise its power under section 6.64(1)(b) (in this Subdivision and Schedule 6.3 referred to as the power of sale) in relation to any land unless, within the period of 3 years prior to the exercise of the power of sale, the local government has at least once attempted under section 6.56 to recover money due to it. (2) A local government is not required to attempt under section 6.56 to recover money due to it before exercising the power of sale where the local government - (a) has a reasonable belief that the cost of the proceedings under that section will equal or exceed the value of the land; or (b) having made reasonable efforts to locate the owner of the property is unable to do so. (3A) A local government is to ensure that a decision to exercise a power of sale without having, within the period of 3 years prior to the exercise of the power of sale, attempted under section 6.56 to recover the money due to it and the reasons for the decision are recorded in the minutes of the meeting at which the decision was made. (3) Schedule 6.3 has effect in relation to the exercise of the power of sale. [Section 6.68 amended by No. 17 of 2009 s. 40.] 6.69. Right to pay rates, service charges and costs, and stay proceedings (1) Up to 7 days prior to the time of the actual sale of any land for non-payment of rates or service charges a person having an estate or interest in the land may pay the rates or service charges and the costs and expenses incurred to that time in proceedings relating to the proposed sale. (2) At any time after the 7 days referred to in subsection (1) but prior to the time of the actual sale of any land the local government may, upon such terms and conditions as are agreed between the parties, accept payment of the outstanding rates or service charges. (3) On payment being made under subsection (1) or (2) the proceedings relating to the proposed sale are stayed and the local government is required to make such notifications and take such measures as are prescribed in relation to the payment and the cancellation of the proposed sale. 6.70. Effect of changes in boundaries of local government area An alteration in - (a) the boundaries of a district of a local government; (b) the constitution of the local government or its council; or (c) its name or status, does not preclude the local government from exercising in respect of any land on which rates or service charges were lawfully imposed by it under this Division, the powers conferred by this Subdivision. 6.71. Power to transfer land to Crown or to local government (1) If under this Subdivision land is offered for sale but at the expiration of 12 months a contract for the sale of the land has not been entered into by the local government, it may by transfer, where the land is subject to the provisions of the Transfer of Land Act 1893, and by deed, where the land is not subject to the provisions of that Act, transfer or convey the estate in fee simple in the land to - (a) the Crown in right of the State; or (b) the local government. (2) When a local government exercises the power referred to in subsection (1)(a) in relation to any land all encumbrances affecting the land are, by virtue of this section of no further force or effect against that land and the Registrar of Titles or the Registrar of Deeds, as the case requires, is to give effect to this section. (3) When exercising the power referred to in subsection (1)(b) the local government is required to pay the sum secured by, or payable under, a mortgage, lease, tenancy, encumbrance or charge in favour of the Crown in right of the State or a department, agency, or instrumentality of the Crown in right of the State. (4) Schedule 6.3 has effect in relation to the exercise of the power referred to in subsection (1). 6.72. Title to land sold or transferred Where a transfer or conveyance of an estate in fee simple in land is made in purported exercise of a power under section 6.64(1)(b), (c) or (d) the title transferred or conveyed is not impeachable on the ground that - (a) no case had arisen to authorise the sale; (b) the proper procedures were not followed; or (c) the power was otherwise improperly or irregularly exercised, and a person who claims there has been an unauthorised or improper or irregular exercise of the power has a remedy in damages against the relevant local government but not against the Crown or the State with the Registrar as the nominal defendant under the Transfer of Land Act 1893. [Section 6.72 amended by No. 81 of 1996 s. 153(1).] 6.73. Discharge of liability on sale of land A sale of land by a local government or a transfer or conveyance of land to the Crown or a local government under this Subdivision discharges - (a) the land; and (b) the owners (present and past) of the land, from any liability to the local government for rates, service charges or other money due to the local government which were, at the time of the sale, transfer or conveyance - (c) secured by a charge over the land; or (d) otherwise recoverable, whether under this Act or another written law, by the local government in respect of the land. 6.74. Power to have land revested in the Crown if rates in arrears 3 years (1) If land is - (a) rateable land; (b) vacant land; and (c) land in respect of which any rates or service charges have been unpaid for a period of at least 3 years, the local government in whose district the land is situated may apply in the form and manner prescribed to the Minister to have the land revested in the Crown in right of the State. (2) The Minister is to consider the application and the circumstances surrounding the application and may grant or refuse the application. (3) If the application is granted the Minister is to execute a transfer or conveyance of the land to the Crown and is to deliver the transfer or conveyance to the Registrar of Titles or the Registrar of Deeds, as the case requires, for registration. (4) Upon the delivery of the transfer or conveyance Schedule 6.3 clause 8 has effect in relation to the exercise of the power referred to in subsection (1). [Section 6.74 amended by No. 49 of 2004 s. 64(1).] 6.75. Land to be vested in the local government (1) Where, at the expiration of 12 years from the taking of possession of any rateable land by a local government under section 6.64 - (a) all rates and service charges due and payable in respect of the land have not been paid; and (b) the land has not, under the provisions of this Subdivision, been - (i) sold by the local government; (ii) transferred to the local government; or (iii) transferred to the Crown, by operation of this section the fee simple in the land is to be transferred to the local government subject to - (c) easements in favour of the public which affect the land; (d) the rights of the Crown in right of the State or Commonwealth or a department, agency, or instrumentality of the Crown in right of the State or Commonwealth; and (e) rates and taxes (other than local government rates and service charges) due on the land, but free from other encumbrances. (2) Schedule 6.3 has effect in relation to a transfer under this section. Subdivision 7 - Objections and review [Heading amended by No. 55 of 2004 s. 693.] 6.76. Grounds of objection (1) A person may, in accordance with this section, object to the rate record of a local government on the ground - (a) that there is an error in the rate record - (i) with respect to the identity of the owner or occupier of any land; or (ii) on the basis that the land or part of the land is not rateable land; or (b) if the local government imposes a differential general rate, that the characteristics of the land recorded in the rate record as the basis for imposing that rate should be deleted and other characteristics substituted. (2) An objection under subsection (1) is to - (a) be made to the local government in writing within 42 days of the service of a rate notice under section 6.41; (b) identify the relevant land; and (c) set out fully and in detail the grounds of objection. (3) An objection under subsection (1) may be made by the person named in the rate record as the owner of land or by the agent or attorney of that person. (4) The local government may, on application by a person proposing to make an objection, extend the time for making the objection for such period as it thinks fit. (5) The local government is to promptly consider any objection and may either disallow it or allow it, wholly or in part. (6) After making a decision on the objection the local government is to promptly serve upon the person by whom the objection was made written notice of its decision on the objection and a statement of its reason for that decision. 6.77. Review of decision of local government on objection Any person who is dissatisfied with the decision of a local government on an objection by that person under section 6.76 may, within 42 days (or such further period as the State Administrative Tribunal, for reasonable cause shown by the person, allows) after service of notice of the decision, apply to the State Administrative Tribunal for a review of the decision. [Section 6.77 amended by No. 55 of 2004 s. 694.] 6.78. Review of decision to refusal to extend time for objection A person who is dissatisfied with a decision of the local government to refuse to extend the time for making an objection against the rate record may apply to the State Administrative Tribunal for a review of the decision. [Section 6.78 amended by No. 55 of 2004 s. 695.] 6.79. New matters raised on review (1) Upon a review by the State Administrative Tribunal under section 6.77 or 6.78, the State Administrative Tribunal may consider - (a) grounds in addition to those stated in the notice of objection; and (b) reasons in addition to any reasons previously given for the local government's decision that is under review. (2) The State Administrative Tribunal is to ensure, by adjournment or otherwise, that each party and any other person entitled to be heard has a reasonable opportunity of properly considering and responding to any new ground or reason that the State Administrative Tribunal proposes to consider in accordance with subsection (1). [Section 6.79 inserted by No. 55 of 2004 s. 696.] 6.79B. Written reasons for certain determinations to be given and published If the State Administrative Tribunal considers that an order it makes determining a matter coming before it on a reference under section 6.77 or 6.78 is of general interest or significance, it is to prepare written reasons for its order and give a copy of the reasons to each party and publish the written reasons. [Section 6.79B inserted by No. 55 of 2004 s. 696.] 6.80. Objections and reviews against valuations There is not to be an objection or review in respect of a valuation of rateable land appearing in a rate record except in accordance with the Valuation of Land Act 1978. [Section 6.80 amended by No. 55 of 2004 s. 697.] 6.81. Objection not to affect liability to pay rates or service charges The making of an objection under this Subdivision does not affect the liability to pay any rate or service charge imposed under this Act pending determination of the objection. [Section 6.81 amended by No. 55 of 2004 s. 698.] 6.82. General review of imposition of rate or service charge (1) Where there is a question of general interest as to whether a rate or service charge was imposed in accordance with this Act, the local government or any person may refer the question to the State Administrative Tribunal to have it resolved. (2) Subsection (1) does not enable a person to have a question relating to that person's own individual case resolved under this section if it could be, or could have been, resolved under section 6.76. (3) The State Administrative Tribunal dealing with a matter referred to it under this section may make an order quashing a rate or service charge which in its opinion has been improperly made or imposed. [Section 6.82 amended by No. 55 of 2004 s. 699.] Part 7 - Audit What this Part is about This Part deals with the audit of the financial accounts of local governments, including - (a) the appointment of auditors; and (b) the conduct of audits. Division 1 - Introduction 7.1. Terms used in this Part In this Part - approved auditor means a person who is approved by the Minister under section 7.5; audit committee means an audit committee established under section 7.1A; disqualified person has the meaning given by section 7.4(2); qualified person means a person who is an approved auditor or a registered company auditor and who is not a disqualified person; registered company auditor means a person who is for the time being registered as an auditor or taken to be registered as an auditor under Part 9.2 of the Corporations Act 2001 of the Commonwealth; regulations means regulations made for the purposes of this Part. [Section 7.1 amended by No. 10 of 2001 s. 124; No. 49 of 2004 s. 4.] Division 1A - Audit committee [Heading inserted by No. 49 of 2004 s. 5.] 7.1A. Audit committee (1) A local government is to establish an audit committee of 3 or more persons to exercise the powers and discharge the duties conferred on it. (2) The members of the audit committee of a local government are to be appointed* by the local government and at least 3 of the members, and the majority of the members, are to be council members. * Absolute majority required. (3) A CEO is not to be a member of an audit committee and may not nominate a person to be a member of an audit committee or have a person to represent him or her as a member of an audit committee. (4) An employee is not to be a member of an audit committee. [Section 7.1A inserted by No. 49 of 2004 s. 5.] 7.1B. Delegation of some powers and duties to audit committees (1) Despite section 5.16, the only powers and duties that a local government may delegate* to its audit committee are any of its powers and duties under this Part other than this power of delegation. * Absolute majority required. (2) A delegation to an audit committee is not subject to section 5.17. [Section 7.1B inserted by No. 49 of 2004 s. 5.] 7.1C. Decisions of audit committees Despite section 5.20, a decision of an audit committee is to be made by a simple majority. [Section 7.1C inserted by No. 49 of 2004 s. 5.] Division 2 - Appointment of auditors 7.2. Audit The accounts and annual financial report of a local government for each financial year are required to be audited by an auditor appointed by the local government. 7.3. Appointment of auditors (1) A local government is to, from time to time whenever such an appointment is necessary or expedient, appoint* a person, on the recommendation of the audit committee, to be its auditor. * Absolute majority required. (2) The local government may appoint one or more persons as its auditor. (3) The local government's auditor is to be a person who is - (a) a registered company auditor; or (b) an approved auditor. [Section 7.3 amended by No. 49 of 2004 s. 6.] 7.4. Disqualified person not to be auditor (1) A person may not be appointed as a local government's auditor if that person is a disqualified person. (2) In this section - disqualified person means a person who - (a) is a councillor or an employee of the local government; (b) is a person who is in debt for more than the prescribed amount to the local government for a period of more than 35 days after - (i) in the case of that part of the debt which is for a rate or service charge under Part 6, the date the rate notice was issued; or (ii) in the case of that part of the debt which is not for a rate or service charge, the date an account was rendered to the person by the local government; (c) is an employee of, or a member of the governing body of, an entity of a kind prescribed for the purposes of this paragraph; or (d) is a member of a class of persons prescribed for the purposes of this subsection. 7.5. Approval of auditors The Minister may approve a person who, immediately before the commencement of this Act - (a) was a registered local government auditor within the meaning of that term in Part XXVII of the Local Government Act 1960 4 as in force before that commencement; and (b) was the auditor of a local government, as an approved auditor for the purposes of this Act. 7.6. Term of office of auditor (1) The appointment of a local government's auditor is to have effect in respect of the audit of the accounts and annual financial report of the local government for a term of not more than 5 financial years, but an auditor is eligible for re-appointment. (2) The appointment of an auditor of a local government ceases to have effect if - (a) his or her registration as a registered company auditor is cancelled; (b) his or her approval as an approved auditor is withdrawn; (c) he or she dies; (d) the auditor ceases to be qualified to hold office as auditor or becomes a disqualified person; (e) the auditor resigns by notice in writing addressed to the local government; or (f) the appointment is terminated by the local government by notice in writing. (3) Where - (a) the registration of a local government's auditor as a registered company auditor is suspended; or (b) a local government's auditor becomes unable or unwilling to carry out all or part of his or her duties, the local government is to appoint* a person to conduct the audit or to complete that part of the audit which remains to be conducted, as the case requires. * Absolute majority required. 7.7. Departmental CEO may appoint auditor If by 30 November in any year a local government has not appointed an auditor the Departmental CEO may appoint - (a) a qualified person; or (b) in default of an appointment under paragraph (a), the Auditor General, to be the auditor of the local government's accounts and annual financial report for the relevant financial year. [Section 7.7 amended by No. 28 of 2006 s. 364.] 7.8. Terms of appointment of auditors (1) Subject to this Part and to any regulations, the appointment of a person as auditor of a local government is to be made by agreement in writing on such terms and conditions, including the remuneration and expenses of the person to be appointed, as are agreed between that person and the local government. (2) The remuneration and expenses payable to the auditor of a local government (whether appointed by the local government or by the Departmental CEO under section 7.7) are payable by the local government. [Section 7.8 amended by No. 28 of 2006 s. 364.] Division 3 - Conduct of audit 7.9. Audit to be conducted (1) An auditor is required to examine the accounts and annual financial report submitted for audit and, by the 31 December next following the financial year to which the accounts and report relate or such later date as may be prescribed, to prepare a report thereon and forward a copy of that report to - (a) the mayor or president; (b) the CEO of the local government; and (c) the Minister. (2) Without limiting the generality of subsection (1), where the auditor considers that - (a) there is any error or deficiency in an account or financial report submitted for audit; (b) any money paid from, or due to, any fund or account of a local government has been or may have been misapplied to purposes not authorised by law; or (c) there is a matter arising from the examination of the accounts and annual financial report that needs to be addressed by the local government, details of that error, deficiency, misapplication or matter, are to be included in the report by the auditor. (3) The Minister may direct the auditor of a local government to examine a particular aspect of the accounts and the annual financial report submitted for audit by that local government and to - (a) prepare a report thereon; and (b) forward a copy of that report to the Minister, and that direction has effect according to its terms. (4) If the Minister considers it appropriate to do so, the Minister is to forward a copy of the report referred to in subsection (3), or part of that report, to the CEO of the local government to be dealt with under section 7.12A. [Section 7.9 amended by No. 49 of 2004 s. 7.] 7.10. Powers of the auditor (1) An auditor - (a) has a right of access at all reasonable times to such books, accounts, documents and assets of the local government as are, in the opinion of the auditor, necessary to allow the audit to be conducted; (b) may require from a member or an employee of the local government - (i) any book, account, document or asset of the local government; or (ii) any information, assistance or explanation, necessary for the performance of the duty of the auditor in relation to the audit; and (c) may, at the expense of the local government obtain and act upon a legal opinion on a question arising in the course of an audit. (2) In this section and in section 7.11 employee includes a person who has a contract for services with the local government. 7.11. Power to demand production of books etc. For the purpose of an audit, inspection or inquiry, an auditor has authority at all reasonable times and without notice to demand from the local government and its employees, the production of books, accounts, vouchers, papers, documents, records, assets and cash in hand, belonging to the local government or being in the custody or control of it or any of its employees. 7.12. Employees and financial institutions to furnish particulars of money received (1) An employee of a local government is to furnish to an auditor, as and when required, a statement in writing of all money received in his or her official capacity by the employee whether on account of the local government or otherwise. (2) A bank or other financial institution at which a local government has an account is required to furnish to an auditor, as and when required, full particulars of the account. Division 4 - General 7.12A. Duties of local government with respect to audits (1) A local government is to do everything in its power to - (a) assist the auditor of the local government to conduct an audit and carry out his or her other duties under this Act in respect of the local government; and (b) ensure that audits are conducted successfully and expeditiously. (2) Without limiting the generality of subsection (1), a local government is to meet with the auditor of the local government at least once in every year. (3) A local government is to examine the report of the auditor prepared under section 7.9(1), and any report prepared under section 7.9(3) forwarded to it, and is to - (a) determine if any matters raised by the report, or reports, require action to be taken by the local government; and (b) ensure that appropriate action is taken in respect of those matters. (4) A local government is to - (a) prepare a report on any actions under subsection (3) in respect of an audit conducted in respect of a financial year; and (b) forward a copy of that report to the Minister, by the end of the next financial year, or 6 months after the last report prepared under section 7.9 is received by the local government, whichever is the latest in time. [Section 7.12A inserted by No. 49 of 2004 s. 8.] 7.13. Regulations as to audits (1) Regulations may make provision - (aa) as to the functions of the CEO and the audit committee in relation to audits carried out under this Part and reports made on those audits; (ab) as to the functions of audit committees, including the selection and recommendation of an auditor; (ac) as to the procedure to be followed in selecting an auditor; (ad) as to the contents of the annual report to be prepared by an audit committee; (ae) as to monitoring action taken in respect of any matters raised in a report by an auditor; (a) with respect to matters to be included in agreements between local governments and auditors; (b) for notifications and reports to be given in relation to agreements between local governments and auditors, including any variations to, or termination of such agreements; (ba) as to the copies of agreements between local governments and auditors being provided to the Department; (c) as to the manner in which an application may be made to the Minister for approval as an auditor; (d) in relation to approved auditors, for - (i) reviews of, and reports on, the quality of audits conducted; (ii) the withdrawal by the Minister of approval as an auditor; (iii) applications to the State Administrative Tribunal for the review of decisions to withdraw approval; (e) for the exercise or performance by auditors of their powers and duties under this Part; (f) as to the matters to be addressed by auditors in their reports; (g) requiring auditors to provide the Minister with such information as to audits carried out by them under this Part as is prescribed; (h) prescribing the circumstances in which an auditor is to be considered to have a conflict of interest and requiring auditors to disclose in their reports such information as to a possible conflict of interest as is prescribed; (i) requiring local governments to carry out, in the prescribed manner and in a form approved by the Minister, an audit of compliance with such statutory requirements as are prescribed whether those requirements are - (i) of a financial nature or not; or (ii) under this Act or another written law. (2) Regulations may also make any provision about audit committees that may be made under section 5.25 in relation to committees. [Section 7.13 amended by No. 64 of 1998 s. 40; No. 49 of 2004 s. 9; No. 55 of 2004 s. 700.] Part 8 - Scrutiny of the affairs of local governments What this Part is about This Part deals with - (a) inquiring into the affairs and performance of local governments; (b) suspending and dismissing councils; and (c) making members or local government employees accountable for the misapplication of property. Division 1 - Inquiries by the Minister or an authorised person 8.1. Terms used in this Division In this Division - authorised person means the Departmental CEO or any other person authorised to conduct an inquiry; inquiry means an inquiry under section 8.3. [Section 8.1 amended by No. 28 of 2006 s. 364.] 8.2. Minister or Departmental CEO may require information (1) The Minister or Departmental CEO may in a written notice require a local government, a member of a council, a CEO or an employee to provide information of a kind specified in the notice concerning the local government or its operations or affairs. (2) A person who fails to comply with a notice under subsection (1) commits an offence. [Section 8.2 amended by No. 28 of 2006 s. 364; No. 17 of 2009 s. 41.] 8.3. Inquiries by, or authorised by, the Departmental CEO (1) The Departmental CEO has authority to inquire into all local governments and their operations and affairs. (2) The Departmental CEO may, by written authorisation, authorise a person to inquire into and report on any aspect of a local government or its operations or affairs. (3) The Minister may direct the Departmental CEO to authorise an inquiry under this section. (4) The Departmental CEO is to advise the Minister if and when an inquiry is authorised under this section. (5) An election (within the meaning of Part 4) is not to be the subject of an inquiry under this section if the Electoral Commissioner was responsible for the conduct of the election. (6) If 2 or more people are authorised to conduct an inquiry - (a) a reference in section 8.4, 8.12, 8.13, 8.14 or 8.15A to the authorised person or an authorised person is a reference to those people; and (b) a reference in section 8.5, 8.6, 8.8, 8.9, 8.10 or 8.11 to an authorised person is a reference to any of those people. [Section 8.3 amended by No. 64 of 1998 s. 41, No. 28 of 2006 s. 364.] 8.4. Scope and duration of an authorisation (1) An authorisation under section 8.3(2) may confer a general power to conduct inquiries or a power to conduct a specific inquiry. (2) Even though a specific inquiry is authorised, the authorised person may inquire into any other matter that comes to the person's attention during the inquiry if the person considers it necessary or expedient to inquire into that matter and notifies the Departmental CEO accordingly. (3) The authorisation is to set out - (a) the name of the authorised person; (b) the functions of the authorised person; and (c) any limit imposed on the duration of the authorisation. (4) The authorisation may be withdrawn by the Departmental CEO by written notice given to the authorised person. [Section 8.4 amended by No. 28 of 2006 s. 364.] 8.5. Powers of an authorised person (1) So as to perform his or her functions an authorised person may direct a person to do any one or more of the following - (a) to appear in person before the authorised person at a time and place specified in the direction; (b) to give evidence (including evidence on oath); (c) to produce to the authorised person, or allow the authorised person to have access to, any document, information or property that is in or under the person's custody or control; (d) to do anything necessary to enable the authorised person to have access to any document, information or property in or under the custody or control of another person. (2) An authorised person may administer an oath for the purposes of this section. (3) Subsection (1)(c) and (d) extend to documents and information in or under the custody or control of banks or other financial institutions. (4) An authorised person may - (a) take copies of or extracts from any document to which he or she gains access under this section; or (b) take custody or control of any document or property to which he or she gains access under this section on local government property. (5) Evidence given by a person as directed under subsection (1) is not admissible in any civil or criminal proceedings against the person other than proceedings under section 8.11. 8.6. Power to enter property (1) For the purpose of performing his or her functions an authorised person may enter land, premises or things in accordance with this section. (2) An authorised person may enter local government property with or without the consent of the local government. (3) An authorised person may, with assistants if necessary, enter land, premises or things other than local government property if - (a) the consent of the owner or occupier has been obtained; (b) the owner or occupier has been given notice of the entry and does not object to the entry; or (c) the entry is authorised by the warrant of a justice. 8.7. Notice of entry (1) A notice of entry under section 8.6(3)(b) is to specify the purpose for which the entry is required and continues to have effect for so long as that requirement continues. (2) The notice is to be given not less than 24 hours before the power of entry is exercised. (3) Successive entries for the purpose specified in the notice are to be regarded as entries to which that notice relates. 8.8. Entry under warrant (1) In the circumstances described in subsection (2), a justice may by warrant authorise an authorised person, together with such other persons as are named or described in the warrant, or a police officer, to enter any land, premises or thing using such force as is necessary. (2) A warrant may be granted under subsection (1) where a justice is satisfied that the entry is reasonably required by an authorised person for the purpose of performing any of his or her functions, but - (a) entry has been refused or is opposed or prevented; (b) entry cannot be obtained; or (c) notice cannot be given under section 8.6(3)(b) without unreasonable difficulty or without unreasonably delaying entry. (3) A warrant granted under subsection (1) - (a) is to be in the prescribed form; (b) is to specify the purpose for which the land, premises or thing may be entered; and (c) continues to have effect until the purpose for which it was granted has been satisfied. 8.9. Exercise of powers An authorised person's powers can be exercised in relation to - (a) a person who is or has been a council member, or member of a committee, or employee of the local government concerned; or (b) a person or body with whom the local government or a person referred to in paragraph (a) has, has had, may have or may have had a financial or other association. 8.10. Protection from liability (1) An action in tort does not lie against an authorised person for anything that the person has done, in good faith, in the exercise or purported exercise of a power under this Division. (2) This section does not relieve the State of any liability that it might have for the doing of anything by an authorised person. 8.11. Failure to comply with directions A person who - (a) hinders or obstructs an authorised person in the performance of his or her functions; (b) fails to comply with a direction lawfully given by an authorised person; or (c) knowingly gives false or misleading evidence to an authorised person, commits an offence. 8.12. Referral to other authorities An authorised person may refer any matter arising out of an inquiry to an authority of the State, the Commonwealth, another State or a Territory that has power under a law to investigate or take action in relation to a matter of that kind, and may pass to that authority any document or property that he or she has obtained under this Division. 8.13. Authorised person's report (1) An authorised person is to compile a report on the outcome of any inquiry he or she conducts. (2) The report is to contain any recommendations that the authorised person considers appropriate. (3) The report of an authorised person other than the Departmental CEO is to be given to the Departmental CEO. (4) The Departmental CEO is to give a copy of the report to the Minister. [Section 8.13 amended by No. 28 of 2006 s. 364.] 8.14. Copy to be given to the local government (1) Unless the Minister directs otherwise, the Departmental CEO is to give a copy of a report under section 8.13 to the local government concerned. (2) Before giving the report to the local government the Departmental CEO may remove from the report anything that - (a) could prejudice any legal action arising from the inquiry; (b) could prejudice any inquiry that the Minister may wish to institute under Division 2; (c) could be considered defamatory; or (d) the Departmental CEO considers ought, for any other reason, to be removed. (3) Within 35 days after receiving the report or such longer period as the Minister allows, the local government is to give the Minister written advice setting out the things that it has done or proposes to do to give effect to the recommendations of the authorised person. [Section 8.14 amended by No. 64 of 1998 s. 42; No. 28 of 2006 s. 364.] 8.15. Minister can take action to ensure that recommendations are put into effect (1) The Minister may, if he or she thinks fit - (a) after receiving the local government's advice; or (b) after the time allowed by or under section 8.14(3) runs out, if no advice has been received by then, order the local government, or any of its council members or employees, to give effect to any one or more of the recommendations in the report in a manner and within a time ordered by the Minister. (2) If the Minister's order under subsection (1) is not complied with according to its terms the Minister may, by order, suspend the council of the local government. 8.15A. Local government may have to meet inquiry costs If - (a) an authorised person makes findings adverse to a local government, or to its council or any member, or to any of its employees; or (b) an inquiry by an authorised person was instituted at the request of a local government, the Minister may order the local government to pay all or part of the costs of the inquiry and the local government is to comply with that order. [Section 8.15A inserted by No. 64 of 1998 s. 43.] Division 2 - Inquiries by Inquiry Panels 8.16. Minister may institute an inquiry (1) The Minister may by written notice appoint an Inquiry Panel consisting of one person or 3 people to inquire into and report on any aspect of a local government or its operations or affairs. (2) Schedule 8.1 (which contains provisions about Inquiry Panels) has effect. [Section 8.16 amended by No. 64 of 1998 s. 44(1).] 8.17. Scope and duration of inquiry The notice appointing an Inquiry Panel is to set out - (a) the nature of the inquiry to be conducted; (b) the functions of the Inquiry Panel; and (c) any limit imposed on the duration of the inquiry. 8.18. Local government to be informed The Minister is to give a copy of the notice appointing an Inquiry Panel to the local government concerned as soon as is practicable after the members of the panel have been notified of their appointments. 8.19. Suspension of council while inquiry is held (1) Before or after appointing an Inquiry Panel to conduct an inquiry and make a report about a local government the Minister may, by order, suspend the council - (a) if the Minister thinks that - (i) the seriousness or duration of a suspected failure of the council to ensure that the local government performs its functions properly; or (ii) such other factors as the Minister considers relevant, make it inappropriate for the council to continue to act as the governing body of the local government; or (b) if the Minister thinks that the conduct of the inquiry would be likely to be seriously prejudiced if the council were to continue to act as the governing body of the local government. (2) If an Inquiry Panel has not been appointed when the suspension takes place the Minister is to appoint one within 6 months after the suspension. 8.20. Powers of Inquiry Panel For the purposes of an inquiry and report under this Division - (a) an Inquiry Panel has the powers of a Royal Commission; and (b) the person appointed to preside at meetings of the Inquiry Panel, or if the Inquiry Panel consists of one person that person, has the powers of the chairman of a Royal Commission, whether under the Royal Commissions Act 1968 or otherwise, and the provisions of that Act have effect as if they were enacted in this Act with such modifications as are required and in terms made applicable to the inquiry and report by the Inquiry Panel. [Section 8.20 inserted by No. 64 of 1998 s. 45.] 8.21. Referral to other authorities An Inquiry Panel may refer any matter arising out of an inquiry to an authority of the State, the Commonwealth, another State or a Territory that has power under a law to investigate or take action in relation to a matter of that kind, and may pass to that authority any document that it has obtained in the course of the inquiry. [Section 8.21 amended by No. 64 of 1998 s. 46.] 8.22. Report of Inquiry Panel (1) An Inquiry Panel's report is to contain any recommendations that the Inquiry Panel considers appropriate. (2) Without limiting subsection (1) the Inquiry Panel may recommend - (a) that a council be dismissed; or (b) that a council that has been suspended be reinstated. (3) The report is to be given to the Minister. 8.23. Copies to be given to the local government and made available to the public (1) The Minister is to give a copy of the Inquiry Panel's report to the local government concerned and, if its council is suspended, to each council member. (2) After subsection (1) has been complied with, the Minister is to make the report of an Inquiry Panel available to the public in any manner that the Minister thinks fit. (3) Despite subsections (1) and (2), the Minister may withhold a report, or its contents, to the extent that the Inquiry Panel has indicated that it considers that making it available might prejudice a matter that is likely to come before a court of law. (4) Within 35 days after receiving the report or such longer period as the Minister allows, the local government is to give the Minister written advice setting out - (a) the things that it has done or proposes to do to give effect to the recommendations in the report; or (b) if the report recommends that the council be dismissed, its comments on that recommendation. (5) If the council is suspended each council member may, within 35 days after receiving the report or such longer period as the Minister allows, give the Minister written advice setting out the member's comments on the recommendations in the report. [Section 8.23 amended by No. 64 of 1998 s. 47.] 8.24. Minister to decide what action to take on Inquiry Panel's report (1) The Minister is to decide what action (if any) to take under this section in respect of an Inquiry Panel's report. (2) If the Minister has given the local government concerned a copy of the report, the decision is to be made - (a) after receiving the advice of the local government; or (b) after the time allowed by or under section 8.23(4) runs out, if no advice has been received by then. (3) If, and only if, the Inquiry Panel has recommended that the council be dismissed, the Minister may recommend that the Governor dismiss the council, but the Minister does not have to so recommend. (4) If the council has been suspended the Minister - (a) must, by order, reinstate the council if the Inquiry Panel has not recommended its dismissal; and (b) may, by order under section 8.28, reinstate the council even if the Inquiry Panel has recommended its dismissal. (5) The Minister may order the local government, or any of its council members (if the council is not suspended or dismissed) or any of its employees to give effect to any one or more of the recommendations of the Inquiry Panel in a manner and within a time ordered by the Minister. 8.25. Dismissal of council by Governor The Governor may, by order made on the recommendation of the Minister under section 8.24(3), dismiss a council. 8.26. Suspension of council if Minister's order not complied with If an order by the Minister under section 8.24(5) is not complied with according to its terms and the council has not already been suspended, the Minister may, by order, suspend the council. 8.27. Local government may have to