Impending changes to Victoria’s Local Government Act 2020
The Local Government Act 2020 (Vic) (LGA2020) received royal assent on 24 March 2020 to supersede the Local Government Act 1989 (Vic) (LGA1989), which Marlene Kairouz MP labelled in her second reading speech as “outdated, incoherent and enmeshed in prescriptive detail”.
The LGA2020 has been gradually enacted over four transitional stages so councils have time to undertake the changes required by the new law. Three of the four stages have already commenced, with the following provisions yet to come into operation on 1 July 2021:
Sections 44 to 46 and 48 to 52 outline how a Chief Executive Officer (CEO) of a council is to be employed and a CEO’s functions. These provisions also require the development and maintenance of various plans and policy documents. These policies, including a workforce plan and a staff code of conduct, come under the direct responsibility of the CEO to make councils more transparent, structured and inclusive.
Sections 71 to 86 refer to councils’ powers to make local laws. The LGA2020 reflects equivalent provisions in Part 5 of the LGA1989, however, there are changes to the procedure for making a local law, including requiring compliance with a council’s community engagement policy and a ‘qualified person’ to certify that the proposed local law is consistent with requirements. A ‘qualified person’ is defined in section 74(2) as an Australian lawyer with five years’ experience and not a councillor. Local laws made under the LGA1989 will continue to apply.
Sections 102 to 105 refer to financial obligations and powers. Councils are now required to prepare and adopt financial policies that give effect to the financial management principles. Explicitly listed financial duties in the LGA1989 have been replaced by a broad requirement for proper accounts and records.
Sections 107 to 122 refer to a range of councils’ operations. These provisions require preparation, adoption and compliance with a complaints policy, procurement policy and how councils can deal with land. Councils can continue to engage in entrepreneurial activities under the LGA2020 with “entrepreneurial powers” being relabelled as “beneficial enterprises”. New tests for when a beneficial enterprise is appropriate now apply.
Section 330 carries over existing libraries into the LGA2020 and section 362 lists the provisions to be repealed in LGA1989.
In summary, the changes that will commence on 1 July 2021 are generally a streamlining and modernisation of existing LGA1989 provisions. As part of this streamlining and modernisation, new provisions create new obligations for councils to produce guidelines and internal policy documents to shift governance towards intra-council management, as well as improving transparency by mandating publication of local laws and policies on council websites.
Holding Redlich’s planning and environment practice group is experienced in advising individuals and local governments with respect to matters regarding council compliance and best practice. If you would like further details with respect to this article, or advice in relation to your own needs, please contact us.
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State Budget delivers funding boost for local water supplies
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PCA: National Cabinet discusses CBD reactivation
Lord Mayor Adrian Schrinner, on behalf of the Council of Capital City Lord Mayors, gave a presentation to National Cabinet on the cost of the pandemic on our capital cities. Cr Schrinner told National Cabinet that despite various Council-led initiatives to bring people back into our city centres, more needs to be done to get Australia’s major cities fully back on their feet. As a result, Prime Minister Scott Morrison subsequently came out with a strong, yet simple message to the public, ‘it’s time to get back to the office.’ Read the media release here and the National Cabinet statement here. More about Fridays in the City can be found here (for Brisbane) (10 June 2021).
Regional Jobs & Infrastructure Fund 2021
The second round is open until 30 July and enables councils to seek up to $3 million for projects important to their communities. Information and guidelines for the Regional Jobs and Infrastructure Fund can be found here.
MAV storm and floods update – 17 June 2021
A number of less affected councils have stepped in to support their neighbours by sharing specialised staff and equipment through the use of the MAV Inter-council Emergency Resource Sharing Protocol. The MAV has been checking in on affected councils to gather a picture of short and longer-term needs to share with the state.
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Local Government (Land Information) Regulations 2021
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Investment Fast Track Fund 2021: Second round
Part of the Regional Jobs and Infrastructure Fund, the stimulus round aims to create jobs by funding priority community projects that can be activated quickly, helping regions to recover and thrive. Applications for the second round of the Regional Infrastructure Fund’s 2020/21 program opened on 16 June. Information and guidelines for the Regional Jobs and Infrastructure Fund can be found here.
Container deposit scheme
The MAV has welcomed the release of the Victorian Government’s consultation paper on the design of the container deposit scheme (CDS). Following significant advocacy from the MAV, councils, environment groups and others, the state committed to introducing a CDS by 2023 as part of its Recycling Victoria policy.
Works for Queensland projects across the region
The Works for Queensland program supports regional councils to undertake job-creating maintenance and minor infrastructure projects such as parks and playgrounds, community and sports facilities, swimming pools and water play areas, renewable energy initiatives, footpaths, roads and water infrastructure. A further $200 million committed for 2024-27. For more information click here.
State infrastructure strategy announcement
A new state infrastructure strategy will be released in conjunction with seven regional infrastructure plans in aid of supporting our post COVID-19 economic recovery. This follows the recent announcement of the formation of a growth areas delivery team to address land supply issues in SEQ. To find out more about the strategy, please click here. You're invited to have your say and help shape the State Infrastructure Strategy. You can share your views via the survey. Consultation closed on 31 May 2021.
Planning (COVID-19 Emergency Response) Regulation 2020
This temporary regulation establishes requirements for keeping documents physically available for inspection and purchase in recognition of health and safety restrictions. This enables local governments to continue to meet their statutory obligations. The regulation is in effect to 30 September 2021. View the Planning (COVID-19 Emergency Response) Regulation 2020 here.
Extension of COVID Bill
State Parliament has moved to extend the timeframe for several measures introduced to allow Government to respond to the impacts of COVID-19 through the COVID-19 Emergency Response and Other Legislation Amendment Act 2021. These come into force throughout 2021.
Schneider v Warrnambool City Council  VSC 337
CONTRACT – Chief Executive Officer (CEO) appointed pursuant to section 94 Local Government Act 1989 and required to perform prescribed statutory functions – CEO appointed to an office within the meaning of section 41(1) Interpretation of Legislation Act 1984 – power of appointment included power of termination – exercise of power of termination subject to compliance with the rules of natural justice – CEO employed pursuant to contract – contract subject to legislation affecting the Council – Council purported to exercise contractual right to terminate CEO’s appointment and employment for ‘no reason’ – ‘no reason’ ground of termination invalid by reason of inconsistency with statutory requirement to accord CEO natural justice.
ADMINISTRATIVE LAW – exercise of statutory power of termination subject to compliance with rules of natural justice – plaintiff denied natural justice – no notice of reasons for termination – no opportunity to respond to allegations of poor performance – decision to terminate affected by bias by reason of pre-judgment – decision to terminate invalid and of no legal effect – certiorari available to quash purported termination of plaintiff’s appointment as CEO – plaintiff entitled to declaration that termination of his appointment and employment as CEO was made in breach of the rules of natural justice – plaintiff entitled to resume appointment and employment as CEO forthwith.
Huang v Frankston City Council (Review and Regulation)  VCAT 634
Review and Regulation List – Freedom of Information Act 1982 sections 25, 32(1), 33(1) and 35(1)(b) – review of decision made by the Victorian Information Commissioner – applicant seeking review in relation to documents and information including documents and information that were not subject to review by the Commissioner – no jurisdiction to review in relation to those matters – consideration of claims that documents contain information that would reasonably be regarded as irrelevant and claims that documents are exempt – decision of Commissioner affirmed.
Bills and Acts
Northern Australia Infrastructure Facility Amendment (Extension and Other Measures) Bill 2021
Amends the Northern Australia Infrastructure Facility Act 2016 to: Extend the investment time period of the Northern Australia Infrastructure Facility (NAIF) by five years to 30 June 2026; expand the functions of the NAIF to include the provision of financial assistance to projects that contribute to Northern Australia's economic and population growth; and amend certain governance and administrative processes of the NAIF.
Northern Australia Infrastructure Facility Act 2016
07 June 2021 – Act No. 41 of 2016.
Water Legislation Amendment (Inspector-General of Water Compliance and Other Measures) Bill 2021
Senate 15 June 2021 – to amend the Water Act 2007 (the Act) to establish the role of an independent Inspector-General of Water Compliance to monitor, and provide independent oversight of, water compliance. The Act provides the legislative and regulatory framework for the management of the Murray-Darling Basin, Australia’s largest water resource. The Act enables the Commonwealth to manage, in conjunction with the Basin States, the Murray-Darling Basin resources in the national interest.
The information in this publication is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this newsletter is accurate at the date it is received or that it will continue to be accurate in the future.