All Councillors: Changes pursuant to the Local Government and Other Legislation Amendment Act 2013 and the Local Government Legislation Amendment Regulation (No. 4) 2013
This bulletin is to assist all councillors with legislative changes made as a result of the passing of the Local Government and Other Legislation Amendment Act 2013 and the Local Government Legislation Amendment Regulation (No. 4) 2013.
Changes have been made to the Local Government Act 2009 (LGA), the Local Government Regulation 2012 (LGR) the City of Brisbane Act 2010 (CoBA), the City of Brisbane Regulation 2012 (CoBR) and the Sustainable Planning Act 2009 in the following areas:
Local Government and Other Legislation Amendment Act 2013:
- Councillors as directors of local government corporate entities
- The obligation of councillors to correct their register of interests
- Qualifications of councillors
- Referral of matters to the change commission
- The process for the preliminary assessment of complaints about councillors
- Various amendments to the Sustainable Planning Act 2009.
Local Government Legislation Amendment Regulation (No.4) 2013:
- Anti-competitive provisions and review procedures
- Significant business activities and prescribed business activities
- Contracts and contractual arrangements
- Register of pre-qualified suppliers
- Payment of accrued long service leave entitlements to former staff
- Various minor amendments
- The Local Government (De-amalgamation Polls) Regulation 2013 has been repealed.
Local Government and Other Legislation Amendment Act 2013
Councillors as directors of local government corporate entities (Section 302 of the LGA):
The changes have removed the restriction on a person being both a councillor and a director of a local government corporate entity. However, only one person can be both a councillor and a director of a local government corporate entity and a person who holds both positions cannot be the chairperson or deputy chairperson of the board of the corporate entity.
Obligation of a councillor to correct register of interests (Section 171B of the LGA and section 173B of the CoBA):
A councillor must advise the chief executive officer in the approved form of any interest or change to an interest, within 30 days after the interest arises or the change happens.
The integrity offence of a councillor who fails to ensure their register of interests is correct is now contained in the CoBA and the LGA. Previously the offence was contained in the regulation to both Acts. The power to prescribe integrity and bribery offences in the regulation has now been repealed.
The maximum penalty for a councillor failing to correct their register of interests has remained at 85 penalty units. However, if a councillor intentionally fails to correct the register, the maximum penalty is now 100 penalty units.
Qualifications of councillors (Section 152 of the LGA and section 152 of the CoBA):
There is now a requirement in both the LGA and the CoBA that a councillor must be an adult Australian citizen. Previously a person had to be an Australian citizen under the LGA while no reference about a person's citizenship was made in the CoBA. The remaining qualification requirements for councillors in both the LGA and the CoBA have not changed.
Referral of matters to the change commission (Section 18 of the LGA):
Previously the Minister, a local government or the Electoral Commission of Queensland could apply to the change commission for a local government change. Section 18 of the LGA now provides that only the Minister may propose a local government change to the change commission.
Process for the preliminary assessment of complaints about councillors (Section 176B of the LGA and section 179 of the CoBA):
The process for the preliminary assessment of a councillor complaint depends on the person or entity making the complaint. In most cases, the preliminary assessment will be made by the chief executive officer of the local government. There is an exception if a complaint is made by the mayor or the chief executive officer of the local government. In those cases the preliminary assessment is to be made by the department's chief executive officer.
In summary the preliminary assessment process is as follows:
- If a complaint is made or received by the local government or the department's chief executive officer, the preliminary assessment of the complaint is made by the chief executive officer of the local government.
- If the mayor or chief executive officer of the local government makes the complaint then the preliminary assessment is made by the department's chief executive officer.
- If the mayor receives the complaint then the preliminary assessment is made by the chief executive officer of the local government.
- The chief executive officer of the local government is also responsible for undertaking the preliminary assessment of complaints received from other persons or entities.
The amendments also provide that any person who receives a complaint must ensure the complaint is referred to the person required to undertake the preliminary assessment.
The requirement to give written notice to the entity prescribed to conduct a preliminary assessment of the complaint has been removed. There is no requirement for a referral notice to be in writing. All complaints received by the chief executive officer of the local government are to be captured and recorded regardless of whether they are received in writing.
Various amendments to the Sustainable Planning Act 2009
The amendments to the Sustainable Planning Act 2009 change the hierarchy of State planning instruments to ensure that, to the extent of any inconsistency, a State planning policy will prevail over regional plans and local planning instruments.
Local Government Legislation Amendment Regulation (No.4) 2013
Anti-competitive provisions and review procedures (Sections 15 and 16 of the LGR and sections 12 and 13 of CoBR):
The changes have resulted in the consolidation of sections 15 and 16 of the LGR into section 15 while sections 12 and 13 of the CoBR are now contained in section 12. The previous references to 'identification guidelines' and the 'public interest test guidelines' have been removed and reference is now made to one guideline. A copy of the new guideline - The new 'National Competition Policy Guidelines for Conducting Reviews on Anti-Competitive Provisions in Local Laws' is available on the department's website.
Significant business activities (section 19 of LGR and section 15 of CoBR) and prescribed business activities (section 39 of LGR and section 29 of CoBR):
The change aligns the LGR and CoBR with the LGA and CoBA by removing the distinction between type 1 and type 2 significant business activities. The threshold for prescribed business activities has been increased from $300,000.00 to $312,000.00 in line with the consumer price index.
Contracts (section 216 of LGR and section 206 of CoBR):
The reference to contracts for 'the carrying out of work' has been removed from the sections. The change provides consistency with section 104(4) of the LGA and section 103(4) CoBA which provide that a contract for the supply of goods or services includes a contract for the carrying out of work. Obsolete references to 'contracting activities' have also been removed.
Contractual Arrangements (section 224 of LGR and section 214 of CoBR):
The changes clarify what the expected value of a contractual arrangement between a local government and a supplier for goods and services is. The expected value is the total expected value of all local government contracts of a similar nature with the supplier either over a financial year or over the proposed term of the contractual arrangement. The example provided in both regulations is as follows:
'A contractual arrangement for the supply of a service over a 5 year period that is expected to be worth, exclusive of GST, $80,000 each year has a total expected value of $400,000'.
Register of pre-qualified suppliers (section 232 of the LGR and section 222 of the CoBR):
The changes restore the requirement on a local government to invite suppliers to tender for the register of pre-qualified suppliers.
Payment of accrued Long Service Leave entitlement to former staff (section 287 of LGR and section 265 of CoBR):
A local government's contribution towards a former employee's long service leave is to be made to the new employer at the time the employee's entitlement to long service leave accrues. Prior to the amendment the payment was to be made at the time of the employee's transfer If the employee leaves their employment prior to their entitlement accruing then no payment is made by the former local government.
Any further enquiries on this matter should be addressed to:
Ms Bronwyn Blagoev
Policy, Legal and Corporate Support