Local Government Act 1993 (Tas)

Local Government Act 1993 An Act to provide for local government and establish councils to plan for, develop and manage municipal areas in the interests of their communities [Royal Assent 23 December 1993] Be it enacted by His Excellency the Governor of Tasmania, by and with the advice and consent of the Legislative Council and House of Assembly, in Parliament assembled, as follows: PART 1 - Preliminary 1. Short title This Act may be cited as the Local Government Act 1993 . 2. Commencement This Act commences on a day or days to be proclaimed. 3. Interpretation In this Act, unless the contrary intention appears – absolute majority means – (a) if no councillors are suspended, more than half of the number of councillors to be elected to a council; or (b) if one or more councillors are suspended, more than half of the number of councillors to be elected to a council after subtracting the number of councillors who are suspended; Appeal Tribunal means the Tasmanian Civil and Administrative Tribunal; approved means approved by the Tasmanian Electoral Commission; assets, for the purpose of Parts 3 and 12A and section 226A , includes – (a) any real or personal property; and (b) any estates or interests in any real or personal property; and (c) any rights, obligations or liabilities; audit panel means the audit panel established under section 85 ; authorised person means a person authorised under section 20A ; ballot material means – (a) a ballot paper; and (b) instructions for the completion of the ballot paper and the manner in which the ballot paper is to be returned; and (c) the envelope or envelopes to be used for the return of the ballot paper; and (d) statements of candidates; Board means the Local Government Board established under section 210 ; Board of Inquiry means a Board of Inquiry established under section 215 ; by-election means a by-election held under Division 9 of Part 15 ; by-laws means by-laws made by a council under Part 11 ; candidate means a person whose nomination for an election under Part 15 has been accepted under section 272 ; certificate of election means a certificate issued under section 304 ; chief executive officer means, in relation to a single authority or joint authority, the person responsible for the administration and operation of that authority; close associate means a person referred to in section 51 ; closing day means the day referred to in section 268A ; code of conduct means the code of conduct made by the Minister, and in force, under section 28R ; code of conduct complaint means a complaint made under section 28V and, where appropriate, includes a part of such a complaint; Code of Conduct Panel means the Code of Conduct Panel established under section 28K ; community means the community of a municipal area; competitive neutrality principles means the national competition policy competitive neutrality principles referred to in clause 3 of the Competition Principles Agreement made between the Commonwealth, the States and the Territories; controlling authority means an authority established under section 29 ; council means a council established under section 18 ; council committee means a council committee established under section 23 ; councillor means a person elected to a council and includes the Lord Mayor, Deputy Lord Mayor, mayor, deputy mayor and alderman; declaration of a poll means a declaration under section 303 ; deputy mayor includes the Deputy Lord Mayor; Director means the Director of Local Government appointed under section 334 ; Director, MPES means the Director, Monetary Penalties Enforcement Service appointed under section 8 of the Monetary Penalties Enforcement Act 2005 ; dispute resolution process, in relation to a council, means the process of resolving a dispute that is performed in accordance with the dispute resolution policy adopted by the council in accordance with section 28JA ; election agent means a person authorised by the candidate to act as his or her agent in connection with the candidate's campaign for election; elector means a person entitled to vote in an election or by-election under Part 15 ; elector poll means a poll conducted under Part 6 ; electoral advertising means any advertising, by any of the following means, that is directly or indirectly in respect of a campaign for election by a candidate or intending candidate: (a) any notice, sign or poster; (b) any pamphlet or handbill; (c) any "how-to-vote" card; (d) any print medium; (e) any broadcast by radio or television; (f) on the internet; electoral area means the municipal area or electoral district in which an election is to be held; Electoral Commissioner means the person holding that office under the Electoral Act 2004 ; electoral district means an electoral district referred to in section 17 ; electoral material means – (a) ballot papers; and (b) declarations under section 284 ; electoral officer means a person appointed as such under section 265 ; electoral officer in charge means an electoral officer appointed under section 265(2) to be in charge of an issuing place; electoral roll means a roll kept under section 258 ; Executive Officer means the Executive Officer appointed under section 28M ; financial year means a period of 12 months starting on 1 July in one year and ending on 30 June in the next year; general manager means the person appointed as such under section 61 and, in Part 15 , includes a person nominated under section 253A ; GST law has the same meaning as in the A New Tax System (Goods and Services Tax) Act 1999 of the Commonwealth; initial assessor, in relation to a code of conduct complaint, means the person appointed under section 28ZA(1AA) to be the initial assessor for the complaint; intending candidate means a person who has publicly declared the intention to nominate for an election under Part 15 ; issuing place means a place appointed under section 263 ; investigating Panel, in respect of a code of conduct complaint, means the panel convened under section 28L to investigate and determine the complaint; joint authority means an authority established under section 30 ; legal practitioner means an Australian legal practitioner; list of electors means the list prepared under section 261 ; mayor includes the Lord Mayor; member means – (a) a member of a special committee or a controlling authority; and (b) a person representing a single authority council or a joint authority council on a single authority or a joint authority; and (c) a member of the board of management of a single authority or a joint authority; municipal area means an area referred to in section 16 and, in Part 15 , includes a proposed municipal area; nomination period means the period beginning at 9 a.m. on the 8th Monday immediately before the closing day and ending at noon on the 6th Monday immediately before the closing day; notice of election means the notice of election under section 269 ; ordinary election means an election under Part 15 that is not a by-election; participating council means a council that, together with one or more councils, establishes a joint authority; partner means a partner within the meaning of the Relationships Act 2003 ; performance improvement direction means a direction issued to a council or councillor under section 214M ; polling period means a period of at least 10 days, excluding any Saturday, Sunday or statutory holiday as defined in the Statutory Holidays Act 2000 , ending on closing day; prohibited conduct means – (a) discrimination, or prohibited conduct, within the meaning of the Anti-Discrimination Act 1998 that is not the subject to an exception or exemption under Part 5 of that Act; or (b) such other conduct, or behaviour, that is prescribed as prohibited conduct; proposed municipal area means a municipal area that is to come into existence as a result of an order under section 214E ; public land means public land as specified in section 177A(1) ; public office means – (a) in the case of a municipal area, the place at which a council carries on its administrative activities; or (b) in the case of a proposed municipal area, the place at which a council or councils of that proposed municipal area carry out their administrative activities; rateable land means land in respect of which rates are payable; rates notice means a notice referred to in section 122 ; regulations means the regulations made under this Act; relevant period means the period starting on the 30th day before the date of notice of election and ending at the end of the polling period; returning officer means a person appointed as such under section 264 ; review means a review carried out by the Board under Part 12A ; roll closure day means the day on which the electoral roll for an electoral area is closed under section 260 ; scrutineer means a person appointed as such under section 292 ; simple majority means the majority of councillors of a council present and able to vote at a meeting of the council or council committee; single authority means an authority established under section 30 ; single authority council means a council that establishes a single authority; special committee means a special committee established under section 24 ; Tasmanian Electoral Commission means the Tasmanian Electoral Commission established by section 6 of the Electoral Act 2004 ; vehicle means a vehicle within the meaning of the Traffic Act 1925 and a bicycle; PART 2 - . . . . . . . . Division 1 - . . . . . . . . 4. . . . . . . . . 5. . . . . . . . . 6. . . . . . . . . 7. . . . . . . . . Division 2 - . . . . . . . . 8. . . . . . . . . 9. . . . . . . . . 10. . . . . . . . . 11. . . . . . . . . 12. . . . . . . . . 13. . . . . . . . . 14. . . . . . . . . 15. . . . . . . . . Division 3 - . . . . . . . . 15A. . . . . . . . . 15B. . . . . . . . . 15C. . . . . . . . . PART 3 - Local Government Division 1 - Municipal areas and electoral districts 16. Municipal areas (1) The State is divided into municipal areas. (2) A municipal area is an area specified in Column 1 of Schedule 3 . (3) A municipal area includes – (a) any accretion from the sea adjoining it; and (b) any part of the sea-shore to the low-water mark adjoining it; and (c) any bridge, jetty, wharf, boat-house, or other structure, that – (i) adjoins the municipal area; or (ii) is situated partly within a municipal area and partly on or over an area of the seabed that is adjacent to the municipal area – and any area of land, adjoining the bridge, jetty, wharf, boat-house, or other structure, over which has been granted a right to occupation of the seabed, which right is necessary to enable the use of the bridge, jetty, wharf, boat-house, or other structure. (4) The Minister, on receiving a report on a review made under section 214D that recommends an adjustment of the boundary of a municipal area or the boundary of an electoral district within a municipal area, regardless of whether the adjustment is minor or significant in nature, may recommend to the Governor that an order be made so adjusting that boundary. (4A) The Minister – (a) on receiving – (i) from the Board, made otherwise than in a report on a review made under section 214D ; or (ii) from the Director – a recommendation that an adjustment, that is minor in nature, be made to the boundary of a municipal area, or the boundary of an electoral district within a municipal area; and (b) if satisfied that all owners of land who would be affected by the adjustment have been consulted by the relevant councils and have consented, in writing, to the adjustment – may recommend to the Governor that an order be made so adjusting that boundary. (5) The Governor, by order and on the recommendation of the Minister under subsection (4) or (4A) , may do one or both of the following: (a) adjust a boundary of a municipal area; (b) if the municipal area is divided into electoral districts, adjust any boundary of any electoral district as may be necessary. (5AA) The Governor, by order, may amend or substitute any item in column 1 of Schedule 3 or substitute that Schedule so as to give effect to an order made under subsection (5) . (5A) A council affected by an adjustment under subsection (5) is to pay the costs associated with that adjustment. (5B) Each municipal area is defined by reference to the relevant plan or plans specified in Column 1 of Schedule 3. (6) The Governor, on the recommendation of the Minister, may amend or substitute any item in column 1 of Schedule 3 or substitute that Schedule in an order made under section 214E relating to municipal areas to give effect to that order. 16A. Cities (1) A city is an area specified in column 1 of Schedule 3B . (2) The name of each city is specified in column 2 of Schedule 3B . (3) A city is defined by reference to the relevant plan specified in column 3 of Schedule 3B . (4) The Governor, on the recommendation of the Minister, may amend or substitute any item in column 1, 2 or 3 of Schedule 3B or substitute that Schedule in an order made under section 214E relating to cities to give effect to that order. 17. Electoral districts (1) A municipal area may be divided into 2 or more electoral districts. (2) The name of each electoral district of a municipal area is specified in column 4 of Schedule 3 . (3) The Governor, on the recommendation of the Minister, may amend, substitute or delete any item in column 4 or 5 of Schedule 3 in an order made under section 214E relating to electoral districts to give effect to that order. Division 2 - Councils 18. Establishment of councils (1) There is established in each municipal area a council. (2) The name of each council in a municipal area is specified in column 2 of Schedule 3 next to the name of that municipal area. (3) A meeting of a council is to be conducted in accordance with prescribed procedures. (4) The Governor, on the recommendation of the Minister, may amend or substitute column 2 of Schedule 3 or substitute that Schedule in an order made under section 214E relating to councils to give effect to that order. 19. Corporation of councils (1) A council is a body corporate with perpetual succession and a common seal. (2) The corporate name of a council – (a) in a municipal area in which there is a city, is to contain the name of the city or the name of the municipal area; or (b) in a municipal area which is not a city, is to contain the name of the municipal area. (3) The common seal is to be kept and used as authorized by the council. (4) . . . . . . . . (5) The execution of a document sealed by a council is to be attested by such persons as the council determines. (6) All courts and persons acting judicially must take judicial notice of the common seal on a document and presume that it was duly sealed by a council. 20. Functions and powers (1) In addition to any functions of a council in this or any other Act, a council has the following functions: (a) to provide for the health, safety and welfare of the community; (b) to represent and promote the interests of the community; (c) to provide for the peace, order and good government of the municipal area. (2) In performing its functions, a council is to consult, involve and be accountable to the community. (3) A council may do anything necessary or convenient to perform its functions either within or outside its municipal area. (4) A council may transfer to a single authority or a joint authority – (a) any of its assets and liabilities on any condition it determines; or (b) any of its employees. (5) A council may – (a) acquire, hold, dispose of and otherwise deal with property; and (b) sue and be sued in its corporate name. 20A. Powers of entry (1) In order that a council may perform its functions or exercise its powers under this or any other Act, the general manager may authorise a person to enter land for a specific purpose or in general. (2) An authorised person need not be an employee of a council. (3) The general manager must give notice to the owner or occupier of the land before entry is made under subsection (1) unless – (a) an emergency exists; or (b) the entry is in relation to an application by the owner or occupier for a licence, permit or other approval given by the council; or (c) notice would defeat the purpose of the entry. (4) A person entering land under this section is to produce the identity card issued to that person under section 20B . (5) The general manager may revoke an authority under this section. 20B. Identity card (1) The general manager is to ensure that a person authorised to enter land pursuant to section 20A is issued with an identity card. (2) An identity card is to – (a) specify the name of the person; and (b) contain a recent photograph of the person; and (c) specify the date of issue; and (d) specify the council or agent of the council that employs the person. (3) A person whose authority is revoked under section 20A(5) must return his or her identity card to the general manager within 3 days of the revocation. Penalty: Fine not exceeding 10 penalty units. 21. Enterprise powers (1) In carrying out any of its functions, a council may – (a) form or participate in the formation and operation of a corporation, trust, partnership or other body; and (b) subscribe for, or otherwise acquire and dispose of, shares in or debentures or other securities of a corporation; and (c) become a member of a company limited by guarantee; and (d) subscribe for, or otherwise acquire and dispose of, units in a trust; and (e) acquire and dispose of an interest in a partnership or other body; and (f) enter into partnership or into any arrangement for sharing of profits, union of interest, cooperation, joint venture, reciprocal concession or otherwise, with any person carrying on, or engaged in, or about to carry on or engage in, any business or transaction capable of being conducted so as to directly or indirectly benefit the community; and (g) undertake a project or activity not directly authorized by this or another Act for the purpose of raising revenue. (1A) A motion by a council to exercise any of its powers under subsection (1) must be accompanied by a statement of the objectives of the exercise of that power. (2) A council must obtain the approval of the Minister before exercising any of its powers under subsection (1) if the exercise of that power would – (a) involve an expenditure of at least $250 000 or 5% or more of its general rates revenue for the previous financial year, whichever is the greater; or (b) extend the council's expenditure required to service its total borrowings to an amount in excess of 30% of its revenue other than grants made to the council for the previous financial year. (3) Before giving an approval, the Minister may require a council to – (a) invite submissions from the public or conduct an elector poll in relation to the proposed exercise of any power; and (b) consider any submissions and the result of an elector poll; and (c) provide any further information the Minister requires. (4) A council may exercise any power under subsection (1) outside the boundaries of its municipal area if that exercise is consistent with the competitive neutrality principles. (5) The general manager is to report to the council – (a) at least once every 3 months in respect of the performance of any activities carried out pursuant to subsection (1) and any strategic issues related to those activities; and (b) any adverse developments that significantly affect or are likely to significantly affect the financial viability, the operating viability or any other aspect of any of those activities. 22. Delegation by council (1) Subject to subsection (2) , a council, in writing, may delegate with or without conditions to the general manager, controlling authority, a council committee or a special committee, any of its functions or powers under this or any other Act, other than– (a) this power of delegation, unless authorized by the council; and (b) the powers referred to in subsection (3) . (2) A council, in writing, may delegate any of the following powers only to the general manager or a council committee and only on condition that the council has determined appropriate policies and procedures to be followed in relation to those powers: (a) the collection of rates and charges under Part 9 ; (ab) the postponement of rates and charges; (b) the remission or rebate of rates and charges; (ba) the writing off of any debts owed to the council; (c) the making of grants or the provision of benefits. (3) A council must not delegate any of its powers relating to the following: (a) the borrowing of money or other financial accommodation; (b) the determination of the categories of expenses payable to councillors and any member of any committee; (c) the establishment of council committees, special committees, controlling authorities, single authorities or joint authorities; (d) the revision of the budget or financial estimates of the council; (e) the revision of the strategic plan and the annual plan of the council; (f) the appointment of the general manager; (fa) the sale, donation, exchange or other disposal of land or public land; (fb) the decision to exercise any power under section 21(1) ; (g) the making of by-laws; (h) the making of rates and charges under Part 9 ; (i) any other prescribed power. (4) The general manager is to – (a) keep a register of any delegation; and (b) make the register available for inspection at a public office. 23. Council committees (1) A council may establish, on such terms as it thinks fit, council committees to assist it in carrying out its functions under this or any other Act. (2) A council committee consists of councillors appointed by the council and any councillor who fills a vacancy for a meeting at the request of the council committee. (3) A meeting of a council committee is to be conducted in accordance with prescribed procedures. 24. Special committees (1) A council may establish, on such terms and for such purposes as it thinks fit, special committees. (2) A special committee consists of such persons appointed by the council as the council thinks appropriate. (3) The council is to determine the procedures relating to meetings of a special committee. Division 3 - Councillors 25. Constitution of council (1) A council consists of persons elected in accordance with Part 4 . (2) A person elected to a city council is a councillor but may be known as an alderman. (3) The number of councillors for each council is specified in column 3 of Schedule 3 next to the name of that council. (4) The Governor, on the recommendation of the Minister, may amend or substitute column 3 of Schedule 3 in an order made under section 214E relating to councils to give effect to that order. (5) Schedule 5 has effect with respect to the office of councillor. 26. Mayors and deputy mayors (1) The chairperson of a council is to be known as – (a) in the case of the Hobart City Council or its successor, the Lord Mayor; and (b) in the case of any other council, the mayor. (2) The deputy chairperson of the council is to be known as – (a) in the case of the Hobart City Council or its successor, the Deputy Lord Mayor; and (b) in the case of any other council, the deputy mayor. 27. Functions of mayors and deputy mayors (1) The functions of a mayor are– (a) to act as a leader of the community of the municipal area; and (b) to carry out the civic and ceremonial functions of the mayoral office; and (c) to promote good governance by, and within, the council; and (d) to act as chairperson of the council and to chair meetings of the council in a manner that supports decision-making processes; and (e) to act as the spokesperson of the council; and (f) to represent the council on regional organisations and at intergovernmental forums at regional, state and federal levels; and (g) to lead and participate in the appointment, and the monitoring of the performance, of the general manager; and (h) to liaise with the general manager on – (i) the activities of the council and the performance and exercise of its functions and powers; and (ii) the activities of the general manager and the performance and exercise of his or her functions and powers in supporting the council; and (i) any function imposed by an order under section 27A ; and (j) any other function imposed by this or any other Act. (aa) . . . . . . . . (ba) . . . . . . . . (1A) The mayor or deputy mayor is to represent accurately the policies and decisions of the council in performing the functions of mayor or deputy mayor. (2) The deputy mayor is to act in the position of mayor and exercise the powers and perform the functions of mayor if– (a) the mayor is absent from duty as Mayor or from the State, otherwise unavailable for duty as mayor or unable to perform the functions of mayor; and (b) the mayor or the council, by notice in writing, appoints the deputy mayor to act in the position. (2A) The mayor, by notice in writing, may delegate for a specified period – (a) either or both of the functions referred to in subsection (1)(e) and (f) to the deputy mayor, a councillor or the general manager; and (b) any other power or function of the mayor, other than the function referred to in subsection (1)(d) , to the deputy mayor. (3) An appointment under subsection (2) remains in force – (a) for the period specified in the notice; or (b) until sooner revoked. 27A. Order relating to Mayor's functions (1) The Minister, by order, may do any one or more of the following: (a) clarify the functions of mayor; (b) impose on mayors such functions as the Minister considers appropriate. (2) The Minister may amend, revoke, or revoke and substitute an order. (3) Before making, amending or revoking and substituting an order, the Minister must consult with the councils as to the matters the Minister is considering including in the order, the amended order or the substitute order. (4) An order under this section may be combined with an order under one or more of the following sections: (a) section 28AA ; (b) section 62A ; (c) section 62B . (5) Section 47(3) , (3A) , (4) , (5) , (6) and (7) of the Acts Interpretation Act 1931 applies to an order under this section as if the order were regulations within the meaning of that Act. (6) An order under this section is subordinate legislation for the purposes of the Subordinate Legislation Act 1992 . 28. Functions of councillors (1) A councillor, in the capacity of an individual councillor, has the following functions: (a) to represent the community; (b) to act in the best interests of the community; (c) to facilitate communication by the council with the community; (d) to participate in the activities of the council; (e) to undertake duties and responsibilities as authorised by the council. (2) The councillors of a council collectively have the following functions: (a) to develop and monitor the implementation of strategic plans and budgets; (b) to determine and monitor the application of policies, plans and programs for – (i) the efficient and effective provision of services and facilities; and (ii) the efficient and effective management of assets; and (iii) the fair and equitable treatment of employees of the council; (c) to facilitate and encourage the planning and development of the municipal area in the best interests of the community; (d) to appoint and monitor the performance of the general manager; (e) to determine and review the council's resource allocation and expenditure activities; (f) to monitor the manner in which services are provided by the council. (3) In performing any function under this Act or any other Act, a councillor must not – (a) direct or attempt to direct an employee of the council in relation to the discharge of the employee's duties; or (b) perform any function of the mayor without the approval of the mayor. (4) A councillor is to represent accurately the policies and decisions of the council in performing the functions of councillor. 28AA. Order relating to functions of councillors (1) The Minister, by order, may clarify the functions of councillors. (2) The Minister may amend, revoke, or revoke and substitute an order. (3) Before making, amending or revoking and substituting an order, the Minister must consult with the councils as to the matters the Minister is considering including in the order, the amended order or the substitute order. (4) An order under this section may be combined with an order under one or more of the following sections: (a) section 27A ; (b) section 62A ; (c) section 62B . (5) Section 47(3) , (3A) , (4) , (5) , (6) and (7) of the Acts Interpretation Act 1931 applies to an order under this section as if the order were regulations within the meaning of that Act. (6) An order under this section is subordinate legislation for the purposes of the Subordinate Legislation Act 1992 . 28A. Information and documents relating to functions (1) A councillor, in writing, may request the general manager to make available any information or document or a copy of any information or document in the possession of the coun