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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the Local Government Act 1989 (Vic) (LGA1989), which Marlene Kairouz MP labelled in her second reading speech as “outdated, incoherent and enmeshed in prescriptive detail”.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:

  • Part 2 Councils – sections 44 to 46 and 48 to 52
  • Part 3 Council decision making – sections 71 to 86
  • Part 4 Planning and financial management – sections 102 to 105
  • Part 5 Council operations – sections 107 to 122
  • Part 10 Savings and transitional – section 330
  • Part 11 Amendments and repeals – section 362.

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 Explicitly listed financial duties in the LGA1989 have been replaced by a broad requirement for proper accounts and records.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.

For an in-depth discussion on these changes, please refer to our expert guide. The Victorian Government has also provided resources for councils to implement the new requirements in the LGA2020.

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.

Authors: Joseph Monaghan, Rachel Foo & Christopher Watt

In the media

Commonwealth

Local government to call for more support for locally-led COVID recovery and solutions
Municipal leaders from across Australia are expected to press the Federal Government to increase financial assistance to local government to ensure councils can respond more effectively to the social and economic impacts of COVID-19 (18 June 2021).  More...

Act now to ward off ransomware threats, ACSC warns
The Australian Cyber Security Centre has begun promoting ransomware advice to local governments as part of its “act now, stay secure” campaign. The centre’s online resources and material are designed to help organisations prevent a ransomware attack and to respond appropriately if held to ransom (18 June 2021).  More...

New inquiry into government-funded infrastructure procurement
A new federal parliamentary inquiry will examine procurement practices for infrastructure funded by governments at all levels (18 June 2021).  More...

‘Council payroll teams need to prepare for super rate rise’
Local governments will need to ensure their payroll and accounting systems are updated to incorporate the increased super rate, the Australian Tax Office has said (18 June 2021).  More...

No quick fix to regional housing affordability crisis: RAI
The current accommodation shortage in many regional towns and cities will take time to reverse, the Regional Australia Institute has said. Twenty regions ranging from Port Hedland to Ballina and Townsville to Burnie have residential vacancy rates of 0.5 per cent or lower (04 June 2021).  More...

Victoria

Improving women’s safety at night in the CBD
An innovative partnership in Melbourne to improve safety for women and gender diverse people travelling into the city at night will be supported by the Victorian Government. Lord Mayor Sally Capp announces a $193,000 grant from the Crime Prevention Innovation Fund to support Melbourne City Council’s Night Justice project (18 June 2021).  More...

Flammable cladding on apartment complexes leaves painful legacy in Victoria months after ban
The VBA said more than 3,200 private and public buildings have been inspected as part of ongoing the statewide cladding audit. Buyers can also contact their local council's planning department or municipal building surveyor and ask if the building has any cladding or fire safety issues (19 June 2021).  More...

Queen Victoria Market apartment tower wins approval
Plans for a 21-storey tower rising from the shell of a heritage building in the Queen Victoria Market precinct have been approved by the City of Melbourne Council (16 June 2021).  More...

Local Government Community Satisfaction Survey results are in
The Local Government Community Satisfaction Survey results are in, and Surf Coast Shire Council has again rated above the average for the state and comparison councils (15 June 2021).  More...

Contractor duped council out of $1.6m
An investigation has found oversight failings at a Melbourne council that allowed itself to be scammed by an IT contractor. A Victorian local government was duped for almost two years by a former IT contractor who exploited lack of oversight to direct $1.6 million of council money into his own companies (09 June 2021).  More...

Queensland

Review to strengthen Queensland’s war on waste
The Palaszczuk Government has reaffirmed its commitment that Queensland households should bear no extra costs for putting out their wheelie bins as it looks to strengthen its successful waste levy program. That includes continuing our arrangement with councils to provide a 105 per cent rebate – or $160 million – through to 2021-22 (16 June 2021).  More...

State Budget delivers funding boost for local water supplies
The Palaszczuk Government will support regional councils to improve water supply and security across the state by committing $70 million to a new round of Building our Regions funding in the State Budget (15 June 2021).  More...

In practice and courts

Commonwealth

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).

Victoria

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. 

MAV: Dial Before You Dig – protecting assets, saving lives 
Most Victorian Councils are Members of Dial Before You Dig (DBYD). The DBYD referral service is a fundamental service, as outlined in the Worksafe Excavation Compliance Code. If you're not yet a DBYD Member, it’s easy to join via our microsite to protect council’s assets, workers, and the community without increasing any demand on Council resources. The new DBYD referral service launches on 1 July 2021. Find out more about our range of Before You Dig solutions here (17 June 2021).

Local Government (Land Information) Regulations 2021
To align with the commencement of sections 121 and 122 of the Local Government Act 2020 on 1 July 2021, new regulations are in preparation on ‘Land Information’. The Government will not be making substantial changes to the current prescribed requirements, however the proposed Local Government (Land Information) Regulations 2021 will replicate the current regulatory requirements for Land Information covered in the Local Government (General) Regulations 2015. Note: After review and consideration of the public comments the Regulations will be made and in force for 1 July 2021. Read more here.

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.

Queensland

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.

Cases

Victoria

Schneider v Warrnambool City Council [2021] 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) [2021] 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.

Legislation

Commonwealth

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.

Disclaimer
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.

Published by:

Christopher Watt

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