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Proclamation to commence certain provisions of the Local Government Legislation Amendment Act 2014

Local Government Legislation Amendment Regulation (No. 1) 2014

Purpose

This bulletin is to advise local governments of:

  • the Proclamation to commence certain provisions of the Local Government Legislation Amendment Act 2014 (the LGLAA 2014) on 1 January 2015
  • the amendments in the Local Government Legislation Amendment Regulation (No. 1) 2014 (the Regulation).

The Proclamation (SL No. 289 of 2014) and the Regulation (SL No. 290 of 2014) were approved by Governor in Council on 4 December 2014 and notified on the Queensland Legislation website on 5 December 2014.

The Proclamation

Background

The LGLAA 2014 was Assented to on 5 September 2014 and includes a range of reforms to the Local Government Electoral Act 2011 (LGEA) (see Bulletin 11/14).

Sections 1, 2, 3, 4, 7, 8, 10 and 11 of the LGLAA 2014 commenced on Assent. These provisions amended the City of Brisbane Act 2010 (CoBA) and the Local Government Act 2009 (LGA) to clarify that a councillor serving a suspended sentence is disqualified from acting as a councillor, and repealed obsolete de-amalgamation provisions in the LGA.

Section 2 of the LGLAA 2014 provided for prospective commencement of the remaining provisions (i.e. sections 5, 6, 9 and 12, parts 4 and 5 and schedule 1). Prospective commencement was to enable local governments to be fully informed about local government electoral changes before implementation, enable local government election proof of identity documents to be prescribed by regulation (to align with proof of identity documents prescribed for State elections), and to defer electronically assisted voting until implementation at the State level.

The Proclamation commences on 1 January 2015 the LGLAA 2014 sections 5, 6, 9 and 12, part 4 (except for sections 42(3) and (8), 46, 49(2), 50(2) to the extent it inserts new section 68(5B), sections 57, 59(1) and (2), 64, 65 and 70(1)), part 5 and schedule 1.

Electronically assisted voting

The sections of the LGLAA 2014 that remain uncommenced are in relation to electronically assisted voting for local government elections (sections 42(3) and (8), 46, 49(2), 50(2) to the extent it inserts new section 68(5B), sections 57, 59(1) and (2), 64, 65 and 70(1)).

Implementation of electronically assisted voting for local government elections is deferred until electronically assisted voting is implemented for State elections under the Electoral Reform Amendment Act 2014.

Key points

From 1 January 2015 the chief executive officer (CEO) of a local government is the returning officer (RO) for all local government elections. The CEO may withdraw from being the RO by giving the Electoral Commissioner (EC) a withdrawal notice. If the CEO is not the RO, the EC must appoint the RO. The withdrawal notice is binding on the CEO and any subsequent CEO on and from:

  • for a quadrennial election - 1 July in the year before the election
  • for a by-election - 5 business days after the vacancy of the office occurs
  • for a fresh election - 5 business days after a regulation directs that a fresh election is to be held under section 105 of the LGEA
  • a later day approved by the EC.

The CEO RO must prepare an election plan for approval by the EC. The election plan must include staffing proposals, the location of the polling booths and other matters as directed by the EC. The CEO RO must give the plan to the EC by:

  • for a quadrennial election - 1 September in the year before the election
  • for a by-election - 10 business days after the vacancy of the office occurs
  • for a fresh election - 10 business days after a regulation directs that a fresh election be held under section 105 of the LGEA
  • a later day approved by the EC.

Irrespective of whether a withdrawal notice is given, the circumstances under which the CEO is not the RO include: if the CEO is a member of a political party; if the EC is satisfied the CEO is unable to discharge the functions of a RO whether because of illness, absence or otherwise; if the EC is satisfied the CEO has failed to comply with a direction under section 9A of the LGEA.

The Regulation

The objectives of the Regulation are to:

  • prescribe proof of identity documents for local government elections
  • fix 19 March 2016 as the date for the 2016 local government quadrennial elections
  • increase National Competition Policy business activity thresholds by the consumer price index for the 2015-2016 financial year
  • local governments may dispose by lease a valuable non-current asset without repeating the call for tenders
  • if a rates cap applies-require rates to be reduced on the remainder lot following part lot acquisition until the local government resolves otherwise at the next budget meeting
  • validate rate/charge resolutions if rates/charges are incorrectly levied
  • provide for a minimum of 1 and a maximum of 2 councillors to be appointed to a local government audit committee
  • extend the date from 31 December 2014 to 30 June 2015 for the new local governments of Douglas, Livingstone, Noosa and Mareeba to discharge the Queensland Treasury Corporation working capital facilities.

Key points

Proof of identity to vote

The LGLAA 2014 amendments to the LGEA require proof of identity to vote at a pre-poll and ordinary polling booth for a local government election. Amendments in the Regulation to the Local Government Electoral Regulation 2012 (LGER) prescribe the proof of identity documents. The documents mirror those prescribed by the Electoral Regulation 2013 for state elections. The amendments commence on 1 January 2015 to align with commencement of the proof of identity amendments in the LGLAA 2014.

From 1 January 2015 an elector will be required to show proof of identity to vote at a pre-poll or ordinary polling booth for a by-election, a fresh election and a local government quadrennial election. An elector may make a declaration vote if the elector does not give an issuing officer the required proof of identity.

Change the 2016 quadrennial local government election date

Section 23 of the LGEA provides a quadrennial local government election must be held on the last Saturday in March in every fourth year after 2012. A different day may be fixed by regulation. Without amendment, the 2016 quadrennial local government election date is Easter Saturday 26 March 2016. Consequently, amendments to the LGER fix 19 March 2016 as the date for the 2016 quadrennial local government election. The amendments commence on 1 January 2015.

Increase to National Competition Policy thresholds

Amendments to the LGR and the City of Brisbane Regulation 2012 (CBR) increase, by the consumer price index, local government significant business activity thresholds/prescribed business activity thresholds for applying the National Competition Policy code of competitive conduct. The amendments commence on 5 December 2014. The thresholds were last increased for the 2014-15 financial year (see Bulletin 01/14).

The new thresholds to apply for the 2015-2016 financial year (rounded) are:

  • LGR section 19(2)(a) - $13.6m (up from $13.3m)
  • LGR section 19(2)(b) - $9m (up from $8.9m)
  • LGR section 39(1) - $318,000 (up from $312,000)
  • CBR section 16(2) - $9m (up from $8.9m)
  • CBR section 29(1) - $318,000 (up from $312,000)

Exception for the disposal by lease of a valuable non-current asset

Section 236 of the LGR and section 226 of the CBR allow the disposal of a valuable non-current asset other than by tender/auction if the asset was previously offered for sale by tender/auction but was not sold.

Inadvertently, a similar exception is not made for the lease of a valuable non-current asset if the asset was previously offered for lease but was not leased. The amendments clarify that ‘disposal’ includes the granting/creation of a lease and the amendments allow the disposal by lease of a valuable non-current asset if the lease of the valuable non-current asset was not granted when the asset was previously offered by tender or auction. The amendments commence on 5 December 2014.

Rates reduced on the remainder lot following part lot acquisition

The LGA sections 94(1), 96(b) (see also LGR section 116) and the CoBA sections 96(1), 98(b) (see also CBR section 108) give local governments broad rating powers including the option to apply an existing rates cap to the remainder lot following part lot acquisition.

The amendments require that if rateable land is subject to a rates cap (applied under the CBR section 108 and the LGR section 116) and part of the rateable land is compulsorily acquired by a government entity, or acquired by the department administering the Transport Planning and Coordination Act 1994, the rates or charges levied on the remainder lot are reduced to the divided amount until the local government resolves otherwise at the next budget meeting.

The divided amount is worked out by dividing the amount of the rates or charges levied on the rateable land (before part lot acquisition) by the number of square metres of the rateable land (before part lot acquisition) and then multiplying that amount by the number of square metres of the remainder (following part lot acquisition) of the rateable land. The amendments commence on 5 December 2014.

Local government resolutions are valid if rates and charges are incorrectly levied

Local governments advise it is sometimes difficult to accurately levy special rates and charges on certain lots and from time to time anomalies occur. Accordingly, the LGR section 94 and CBR section 87 provide that in any proceedings, a local government resolution or overall plan for special rates and charges is not invalid merely because the resolution or plan inadvertently omits lots from the special rate or charge. For example, if a special rate or charge should have been levied on 10 lots because all 10 receive a benefit from particular infrastructure, but council only levies the charge on 9 lots, the resolution remains valid.

The amendments to the LGR section 94 and the CBR section 87 apply the same policy intent to the converse situation where a local government inadvertently resolves to impose special rates or charges on lots which receive no benefit. Minor consequential amendments to the LGR section 98 and the CBR section 91 clarify that if a rates notice includes special rates that do not apply, or should not have been levied, the rates notice is not invalid but the local government must, as soon as practicable, return the special rates to the person who paid them. The amendments commence on 5 December 2014.

Change the composition of audit committees

The Local Government Remuneration and Discipline Tribunal’s Report 2013 re-assigned Special Category and Category 1 and 2 councils to Category 3, effective from 1 July 2014. Consequently, all local governments must establish an audit committee. Amendments to section 210 of the LGR prescribe for the appointment of a minimum of one and a maximum of two councillors, instead of the current minimum requirement of two councillors. The amendments commence on 5 December 2014.

Discharge of Queensland Treasury Corporation working capital facility

To facilitate de-amalgamation, the Local Government (De-amalgamation Implementation) Regulation 2013 (LGDIR) required working capital facilities, established by Queensland Treasury Corporation, to be transferred from the continuing local governments of Cairns, Rockhampton, Sunshine Coast and Tablelands to the respective new local governments of Douglas, Livingstone, Noosa and Mareeba on 1 January 2014. Without amendment, new local governments must discharge the facility by 31 December 2014. The amendments extend the discharge date from 31 December 2014 to 30 June 2015. The amendments commence on 5 December 2014.

Further information

Further enquiries on this matter should be directed to:

Bronwyn Blagoev
Director
Policy, Legal and Corporate Support

Phone: (07) 3452 6792

Email: This email address is being protected from spambots. You need JavaScript enabled to view it.