Local government legislation amendment bill
This bulletin is to advise local governments of the amendments contained in the Local Government Legislation Amendment Bill 2014 (Bill), passed by the Legislative Assembly on 27 August 2014.
The objectives of the Bill are:
- to clarify in the City of Brisbane Act 2010 (COBA) and the Local Government Act 2009 (LGA) that a councillor serving a suspended sentence is disqualified from being a councillor
- to empower the chief executive officer (CEO) of a local government to be the returning officer for an election
- to make consistent voting for mayors by changing the system in undivided councils from first-past-the-post (FPTP) to optional-preferential voting (OPV)
- to align the Local Government Electoral Act 2011 (LGEA) with the Electoral Act 1992 (EA), where appropriate, including adopting recent reforms to implement electronic voting and voter identification.
The Bill makes a number of significant reforms to matters relevant to local government elections as outlined below (this is not a full list of amendments).
Who is the Returning Officer?
The default position under the Bill is that it is the CEO who is the Returning Officer for local government elections. The CEO may withdraw from being the Returning Officer by giving the Electoral Commissioner (EC) a withdrawal notice. If the CEO is not the Returning Officer, the EC must appoint one.
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
- a later day approved by the EC.
Irrespective of whether a withdrawal notice is given, the circumstances under which the CEO is not the Returning Officer 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 Returning Officer 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.
Assistance to the Returning Officer
New section 9A of the LGEA provides that the CEO Returning Officer must not delegate a function or power of the Returning Officer and provides for the EC to continue to be responsible for conducting local government elections.
To assist the EC and CEO Returning Officer in performing their respective roles, new section 24A of the LGEA requires a CEO Returning Officer to 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 Returning Officer 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
- a later day approved by the EC.
The EC proposes to give an information pack to CEOs which will include an election plan template, statistical information from the last quadrennial election, information on staffing and polling booths and the last general return from the quadrennial election which includes feedback on the logistical set up of the election.
New section 12A of the LGEA allows the CEO Returning Officer to appoint persons to carry out an election duty. The CEO Returning Officer may appoint assistant Returning Officers, presiding officers and issuing officers.
System of voting for Mayors
Section 65 of the LGEA has been amended to change the system of voting for mayors in undivided local governments from FPTP to OPV.
The amendment means voting for mayors is consistent across divided and undivided local governments and consistent with voting for members of the Legislative Assembly. Voting for councillors in undivided local governments will remain as FPTP and voting for councillors in divided local governments remains as OPV.
Full postal voting applications
Section 45 of the LGEA, as amended, will require a full postal ballot application to be made to the Minister by 1 July in the year preceding a quadrennial election. Councils may apply to the Minister to conduct all or part of their elections as a full postal ballot if their area includes a large rural sector, large remote areas or extensive island areas. Following the Minister's approval, the EC is notified that a full postal ballot is to be conducted.
Notice of mayoral result to be notified
Section 100 of the LGEA, as amended, allows the result of the poll for mayor to be notified at the earliest possible time, irrespective of whether or not councillor results are notified.
A number of amendments were made to the LGEA to align local government election requirements with the state's Electoral Act 1992:
- Change the roll closure - clause 24 of the Bill amends section 18 of the LGEA to change the roll closure from 31 January in the year of the quadrennial election to 5 to 7 days after publication of the candidate nomination notice
- Register of special postal voters - clause 27 inserts new section 21A to the LGEA to introduce registered special postal voters who automatically receive postal ballot material. Register eligibility is reviewed periodically and special postal voters may include silent electors, distance electors, religious electors, overseas electors and voters who need help voting because of disability, motor impairment or insufficient literacy levels
- Return of nomination deposit - clause 35 amends section 40 of the LGEA to allow the refund of a candidate's nomination deposit before his/her gift return is lodged
- Ballot papers - it is the EC who is responsible for approving ballot papers, including printing and supply to Returning Officers for distribution
- Entitled to vote but not on the roll - clause 47 amends section 64 of the LGEA to allow a person to vote whose name is not on the roll, but who is entitled to be enrolled, but only if the person notifies the EC no later than 6pm on the day before the polling day
- Increase maximum penalty for giving false/misleading information - clause 102 amends section 169 to increase the maximum penalty for giving false or misleading information to the EC or a Returning Officer from 1 year to 7 years imprisonment
- Offence to unlawfully disclose confidential information - new section 176A makes it an offence for a person to unlawfully disclose confidential information gained because of their involvement in the administration of the LGEA. The maximum penalty is 40 penalty units or 18 months imprisonment
- Disclosure matters to be actioned from the 'polling day' - to give candidates more certainty about their financial disclosure obligations, the Bill changes the requirement for disclosure matters to be actioned from the 'conclusion of the election' to instead requiring disclosure matters to be actioned from the 'polling day' to align with the EA
- Electronically assisted voting procedures - clause 57 of the Bill inserts sections 75A-75E of the LGEA to prescribe for electronically assisted voting procedures, auditing requirements, protection of information technology and for the EC to decide whether electronically assisted voting is not to be used
- ECQ scrutiny of how-to-vote cards - clause 108 amends section 179 of the LGEA to require how-to-vote cards to be given to the EC no later than 5pm on the Friday, at least 7 days before polling day and for the cards to be rejected (with reasons) if the EC deems the cards to be misleading or deceiving. A revised card may be given to the EC no later than 5pm on the Wednesday immediately before polling day. Returning Officers are responsible for ensuring the cards are available for public inspection for free at the place of nomination, the local government's public office and the council's website
- Proof of identity to vote - the Bill requires proof of identity to vote at polling booths, to align with state requirements. Prospective commencement is proposed by proclamation. A regulation is proposed to prescribe the types of documents that may be used as proof of identity.
Obsolete de-amalgamation provisions
The Bill amends the Local Government Act 2009 to repeal obsolete de-amalgamation provisions.
Automatic disqualification of councillors serving a suspended sentence
Amendments were made to the COBA and the LGA to clarify that a councillor who is subject to a suspended sentence is disqualified from being a councillor immediately on the sentence being handed down. This amendment commences upon assent of the Bill.
The following provisions commence on a day to be fixed by proclamation:
- Section 5 (Amendment of s216 COBA (Administrators who act honestly and without negligence are protected from liability))
- Section 6 (Amendment of sch 1 (Dictionary))
- Section 9 (Amendment of s235 LGA (Administrators who act honestly and without negligence are protected from liability))
- Section 12 (Amendment of sch 4 (Dictionary))
- Part 4 (Amendment of Local Government Electoral Act 2011)
- Part 5 (Minor and consequential amendments)
- Schedule 1 (Minor and consequential amendments)
All other remaining provisions commence upon assent of the Bill.
Any further enquiries on this matter should be directed to:
Policy, Legal and Corporate Support
Phone: (07) 3452 6792