Below are some questions and answers relating to the local government legislation review. If you have further questions contact the Local Government Legislation Review.

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• How does the Act show that one size doesn’t fit all?

  One of the underpinning factors of the terms of reference for the review of the Local Government Act 1993 was local government diversity and the principle that ‘one size does not fit all’.

  The Local Government Act 2009 acknowledges the diverse nature of Queensland local governments and differences in needs and capacities between urban, provincial and rural councils.

  It applies to all aspects of local government governance and operations: social, cultural, environmental, regulation, services, processes, and priorities.

  High performing local government tailors its business to meet community needs within legislative requirements, so the new legislation enables and facilitates diverse policy and operational responses.

• How has the Act reduced red tape and streamlined local government processes?

  The Act eliminates the need for compliance for the sake of compliance. By coming to terms with the spirit of the legislation, practitioners will be able to focus on outcomes that are in the best interests of the community rather than unnecessary compliance exercises.

  The Act has removed unnecessary prescription and details of processes. The language is written in plain English to make it easier to understand and use. Some examples are: local laws, changes to areas, names and boundaries, and the use of Ministerial powers and the regulations.

  During consultation, stakeholders sent a clear message about the convoluted and time-consuming statutory processes involved in making a local law. The new Act gives a local government the power to make local laws that are suitable to their particular needs and resources, and that achieve the purpose and principles of local government, without unnecessary administrative red tape. Local governments will be able to negotiate directly with the state when making local laws. As a transitional measure, the department will use its regional structure to build local government capacity to manage local law making, including the state interest check.

  Reviewable local government matters under the Local Government Act 1993 are streamlined to reflect what they actually are: changes to local government areas, names and representation. The process for a change to a local government area, name or representation now involves less administrative red tape, without compromising the original intent of a tripartite arrangement between the Minister, the Electoral Commission and local governments. The need for provision of independent advice by the Electoral Commission is also still a feature of the Act.

  Clearer powers for the Minister include the ability to suspend or revoke an unsound decision of a local government, including local laws and resolutions. The new process will allow potential issues to be rectified quickly. A show cause process precedes the exercise of this power, and specific requirements for the gazette notice will ensure transparency, such as for the Minister to state the reasons for the revocation.

  Further streamlining is evident in the regulations, which prescribe only what is necessary to supplement the new legislation. The Local Government Finance Standard 2005 will be repealed with any essential features in a new regulation, removing a layer of prescription for local government.

• How does the Act impact on any possible Commonwealth constitutional recognition of local government?

  The Act does not impact on any possible Commonwealth constitutional recognition of local government. It is entirely consistent with the state's responsibility for local government under the Constitution of Queensland 2001 and the state government's acknowledgement of the important role of local government as an elected third sphere of government.

  Under the Constitution of Queensland 2001, the system of local government cannot be abolished unless a referendum is passed by a majority of voters. Recognition in this regard was first enacted in 1989. The state also financially protects local governments by guaranteeing their borrowings and providing substantial funding through its grants and subsidies programs.

• What are the benefits of principles-based legislation?

  Principles-based legislation means that all responsibilities, decisions and outcomes must comply with the local government principles set out in the Act.

  Principles-based legislation is:

  • outcomes focused
  • provides flexibility
  • encourages innovation
  • comprehensible.

  It supports local governments to have discretion and make choices about processes to suit their size, location and administrative circumstances, as long as the processes are rational, justifiable and transparent.

  The local government principles are found in clause 4. A breach of the principles would be a breach of the Act and would be enforced accordingly.

• What’s happening with the City of Brisbane Act 1924?

  The City of Brisbane Act 1924 is currently under review to align with the Local Government Act 2009, recognise the unique functions of a capital city and update Brisbane City Council governance.

  Extensive consultation is being undertaken with Brisbane City Council and other key stakeholders.

• Has the Act changed the joint local government activities and powers?

  The Act makes the arrangements for collaboration between local governments and between the spheres of government more flexible and streamlined.

  The Act supports such collaborative arrangements by providing for the possibility of partnerships for multiple purposes such as managing a resource, providing services or operating facilities. In the current economic climate, flexibility and joint activities are essential for efficient and effective service delivery.

  Clause 10 defines joint government activities and makes it a specific local government power. A joint local government activity includes providing a service or operating a facility that involves other governments.

  Local governments may now also enter into agreements, contracts or other forms of collaboration with entities from all levels of governments, which include the entities previously known as joint local governments.

• How is the Act clearer about the responsibilities and powers of councillors and employees?

  The Act clarifies the responsibilities and powers of councillors, including the mayor, and local government staff, including the chief executive officer (CEO).

  The responsibilities of councillors reflect the strategic decision-making and leadership role of council. The responsibilities of local government staff relate to their role in implementing the strategic direction set by council and ensuring administrative functions are undertaken according to council policy.

  A key aim of the Act is to be clear about the ‘separation of powers’ principle, which operates at Commonwealth and state levels, by distinguishing between the roles and responsibilities of elected representatives and appointed staff.

  These provisions reinforce the line management authority of the CEO, who is responsible for the performance of the administrative arm of council. When recruiting and selecting staff, CEOs must follow the recruitment and selection policy, the organisational structure, the strategic direction and budget set by council. Although councillors may be involved in the recruitment and selection process for senior contract managers, the ultimate responsibility for such appointments rests with the CEO. The mayor and councillors appoint the council’s CEO. In consultation with council, the CEO appoints all staff including the next tier of senior employees.

  In order to provide flexibility, particularly in far western, remote and Indigenous council areas, the Act provides that local government staff, including the CEO, may be employed concurrently by two or more local governments.

• Only the mayor has the power to direct the chief executive officer. Why?

  The Act clarifies the distinct and separate roles of the elected and administrative arms of local government. In the tradition of effective democratic government, councillors are the executive of the local government and have no part in the administration. They must not direct or attempt to direct the CEO or other employees of the local government.

  It is clear from the Act that only the mayor has the power to direct and to manage the CEO. The mayor must also take a leadership role in establishing and managing a professional working relationship with the CEO, and providing the CEO with feedback on his or her performance.

  The mayor and the CEO are the respective conduits between the elected and administrative arms. In this way, the separation of roles is clarified and strengthened and the local government can work effectively and efficiently.

• Why has the local law process changed?

  A clear stakeholder message was to reduce the convoluted and time-consuming statutory processes involved in making a local law.

  The Act gives a local government the power to make local laws suitable to their particular needs and resources, and that achieve the purpose and principles of local government, without unnecessary administrative red tape. For example, in conducting state interest checks, local governments will now be able to negotiate directly with state agencies.

  The department’s regional structure will support and build capacity in local governments that need it to manage local law-making, including the state interest check.

  To ensure that there will be consistent quality across the state the new operations regulation will include specifications about drafting standards for local laws. A suite of model local laws is available to local governments to save time and resources if they choose to adopt the models.

  The previous requirement for local laws to be reviewed every ten years has been removed to reduce regulatory costs and in recognition that one size does not fit all. Instead, it will be the responsibility of local governments to regularly review their laws to ensure they are current and enforceable.

• How have the provisions for beneficial enterprises changed?

  The beneficial enterprise provisions in the Local Government Act 1993 are onerous and unclear. This leads to a lack of flexibility for local governments wishing to provide a wider range of services or investigate new means of revenue raising. In the new Act, these provisions have been greatly simplified to allow local governments more discretion to meet local circumstances.

  Beneficial enterprises must be conducted according to sound financial principles but can now extend to public private partnerships and other types of associations.

  A register of beneficial enterprises must be kept to ensure transparency and accountability. Where a beneficial enterprise is a public private partnership, extra accountability requirements will be triggered given the higher risk of these types of businesses.

  These provisions address stakeholder concerns about the confusion and lack of flexibility surrounding the current enterprise provisions while striking a balance between accountable business dealings and the need for local governments to be able to conduct a wide range of enterprises to service their communities.

  The Local Government (Beneficial Enterprises and Business Activities) Regulation 2009 gives more information.

• Why aren’t the definitions under business enterprises clearer?

  Clauses 39 to 42 refer to business enterprises. One of the intentions of this part of the Act is to ensure that beneficial enterprises with private sector interests comply with the requirements aimed at minimising financial risk to local governments.

  Membership of Regional Organisation of Councils (ROCs) and ‘LGAQ limited’ will be memberships in the ordinary meaning of the term. However, the beneficial enterprise provisions apply if such memberships are established through an enterprise model that triggers the beneficial enterprise requirements of the Act, such as private sector partnership with a significant investment of own source revenue.

  The definition of the commonly used term of ‘business unit’ in the Act as ‘a part of the local government that conducts a business activity of the local government’, removes any legal uncertainty about the application of the clause.

• Why are you keeping Local Government Owned Corporations when local governments don't use them?

  The Act and the Local Government (Beneficial Enterprises and Business Activities) Regulation 2009 modernises and streamlines the framework for National Competition Policy application. As this is a Commonwealth requirement, the basic operation of the provisions remains the same.

  A key obligation for local government is the application of the competitive neutrality principle, which means that publicly and privately owned businesses should compete on an equal footing. In other words, a government-owned business should not have an advantage over a private sector competitor only by reason of it being owned by government.

  Local governments have different options to comply with the competitive neutrality principles, including full-cost pricing, commercialisation and corporatisation. These options have been maintained and modernised, to make them easier to apply. An example is provision for the establishment of Local Government Owned Corporations. These are now called 'corporate entities'.

  Local governments will still be able to corporatise under Commonwealth corporations legislation. However, as the state government is not in the business of removing flexibility for local governments, the option to establish a local government corporate entity also remains.

• How have the roads and infrastructure provisions been changed?

  As local governments are the day-to-day managers of roads in their areas, these provisions clarify a local government’s power to control roads, including licensing and approval for works which do not impact on the use of the road. Changes include the power for local governments to name and number private roads.

  A number of infrastructure provisions will be included in the operations regulation. Local government will still have responsibility for the management of bathing reserves, foreshores, levee banks and other existing matters. The majority of these provisions remain unchanged from the Local Government Act 1993.

• Why are the clauses about roads included in the Act?

  Clause 71 establishes the jurisdiction of a court, meaning that cases regarding compensation for road levels could be decided by the Planning and Environment Court. Legislative remedies give more certainty to both local governments and individuals as to what compensation is payable.

  Categorisation by surface under clause 73 and the road map and register requirements under clause 74 are the minimum roads information that the state requires for a range of purposes. Local governments can use other roads categorisations for their own purposes. The Department of Transport and Main Roads (DTMR) supports these requirements being positioned in the principal Act. However the categorisation of roads is currently the subject of DTMR deliberations.

• Why are stormwater drains located in the Act and not dealt with in the regulations?

  Stormwater management (clauses 76 to 80) is part of the business of local government. There must be clear rules for the public with penalties that reflect the seriousness of an offence such as cross connecting sewerage installations to stormwater installations or stormwater drains.

  These provisions provide a head of power for local governments to manage stormwater drains and installations, and carry such high penalties that they must remain in the Act.

• What are the differences for Indigenous local governments?

  The Local Government Act 2009 recognises the uniqueness of the Torres Strait and Northern Peninsula local government areas and provides mechanisms to protect the rich customs, traditions and practices of the respective communities.

  A feature of the Act is a discretionary power for all local governments to take Aboriginal tradition and Island custom into account when making decisions.

  The Local Government Act 2009 is the culmination of several years’ work to put Indigenous local governments on a level playing field with mainstream councils. The Act is comprehensive and contemporary and applies to all Indigenous local governments.

  Relevant unique provisions have been merged into the Act, for example, the ability to charge a resident levy has been continued for those former community governments that hold unrateable deed of grant in trust land.

• Why is the requirement for community forums now discretionary?

  Community forums were introduced in 2007 to recognise and protect the Torres Strait Island customs and Aboriginal culture and traditions.

  The establishment of a community forum for each division of Torres Strait Island Regional Council and Northern Peninsula Area Regional Council was intended to provide a platform for community members to have an additional voice on matters of community importance.

  During consultation with the Indigenous regional councils, it was found that community forums are not always the desired community engagement mechanism. They are no longer mandatory in the new Act.

• What about rates, charges and fees?

  Rates and charges are a key mechanism by which local governments raise own-source revenue. The powers under this Act maintain the flexibility of the status quo, giving local governments the power to set appropriate and legitimate rates and charges for their areas and to fully access revenue. The full complement of rates, fees and charges has been retained. Under the Act and finance regulation local governments can charge general rates, differential rates, special and separate rates and charges and utility charges.

  Local governments will need to make rating decisions in accordance with the financial sustainability criteria, for example, the level or amount of rates, charges and fees must ensure financial sustainability.

  A new power has been introduced. With increasing development on land below the high-water mark, occupiers of such land are accessing local government services and using local government infrastructure. A local government has a power to charge a fee on occupiers of land below the high-water mark. To provide transparency, a local government must make the fee by resolution.

  Local governments continue to have the power to charge cost recovery fees for the administration of statutory obligations. Current powers for utility charges are also maintained. In addition, there remains a general competence power for local governments to set any other fees or charges that are necessary.

• Why have you retained the anachronistic unimproved value methodology as the basis for rates?

  Under the Act, the levying of rates will continue to be based on unimproved value under the Valuation of Land Act 1944.

  Many stakeholders advocated change to another form of valuation. Extensive consultation and research was conducted, including the Australian Productivity Commission’s 2008 report on assessing local government revenue raising capacity. It was found that implementing a new valuation system across local governments would be prohibitively expensive and unduly complex, with minimal benefit.

  Any type of rating system is not perfect and all have their own strengths and weaknesses, with winners and losers in each model. However, provisions for differential and special rating instruments that acknowledge that one size does not fit all allow local governments flexibility in levying rates at a level appropriate to the community and council revenue requirements.

  Local governments need to make rating decisions in accordance with the financial sustainability criteria. In particular they must manage financial risks prudently and formulate spending and rating policies that ensure a reasonable degree of equity, stability and predictability. For example, the rates and fees decided by a local government must ensure financial sustainability and intergenerational equity.

  In general, the state government's policy is to maintain the status quo with the rating system. This means that differential rating, concessions, and minimum general rating provisions, for example, will be continued and provided for under the finance regulation. Council’s discretion about which groups have rating relief or concessions will continue.

• Why are there new sections on financial sustainability and accountability??

  The state government believes that the future stability of Queensland's communities is not negotiable, and so the Act sets out mandatory requirements for financial sustainability and accountability.

  Local government in Queensland faces challenges in financial governance and service delivery. It has competing priorities in terms of population changes, ongoing sustainability of the council and the community, and providing significant levels of infrastructure and regional initiatives.

  In addition, local governments carry a heavy load of community expectations about the management of public infrastructure and assets for the long-term benefit and viability of the communities they represent, as well as delivery of essential services and accountability for all public moneys.

  To help local governments to manage this load, the Act has a focus on longer-term planning and high levels of accountability and transparency to the community and the Minister.

  Financial sustainability criteria must be met by local governments, to ensure the prudent management of financial risks. Local governments must:

  1. formulate spending and rating policies that ensure a reasonable degree of equity, stability and predictability and fund current services with regard to their future effects; and
  2. disclose full, accurate and timely financial information to the community and the state by publication of reports and on their website.

  The achievement of the criteria is evidence to the community of its current and future financial viability and sound governance, and ensures compliance with the National Frameworks for local government sustainability.

  Local governments will plan for future service delivery and infrastructure through longer-term planning by developing ten year financial, community and asset and infrastructure plans. These will be published and reviewed annually, ensuring accountability to the public and to the state.

• Will the new provisions in the Act regarding financial sustainability help or hinder local governments?

  The community expects local governments to manage their public infrastructure and assets for the long-term benefit and viability of the communities they represent and serve, and in the short-term to deliver essential services and account for all public moneys. A number of reports have shown financial and infrastructure sustainability is a problem in the local government sector.

  On 26 March 2007, the Local Government and Planning Ministers Council endorsed three National Frameworks, including one for financial planning and reporting.

  The integration of planning and asset management processes is one of the key components of longer-term planning and is a significant driver of the National Frameworks for sustainability, which recognise that sustainability is based on a council being able to meet its infrastructure needs on an ongoing and sustainable basis.

  The legislation of each national jurisdiction is expected to complement the National Frameworks: in Queensland’s case, as part of the broader Sustainability Evaluation and Reporting Framework.

• How does the Act fit with the National Frameworks demanded of local governments?

  The Act supports this framework and introduces:

  • a focus on longer-term planning, including financial and community planning;
    • To effectively plan for future sustainability through longer-term planning by developing 10 year plans, publishing these and reviewing progress annually. The community and the state will then have the best information available to judge progress against the plan, and local governments can make necessary adjustments.
  • expansion of own-source revenue raising;
    • While the Act sets out mandatory financial requirements, it does recognise that local governments have varying needs in relation to financial management. This is shown by the removal of the 5% limit on investment of own-source revenue in enterprises. This prescription was one example of the one size fits all thinking that hampers innovation in local government operations and does not mitigate the risk of more than the extremes. A flat percentage limit does not take into account the financial sustainability of a particular council, nor its ability to manage risk. Similarly, it does not recognise that a 5% investment by larger local governments with an expansive rate base can also be problematic.
  • transparency and accountability to the community and the minister;
    • To ensure local governments maintain a high level of expertise in financial budgeting and management, all local governments are required under the Act to have an internal audit function and process. Internal audit is an effective method of helping local government fulfil its corporate governance responsibilities and it is the responsibility of local governments to fund it. Information provided by audit should be fed back into the planning and reporting cycle to allow continuous improvement of operations.
    • In addition, as recommended by the auditor-general, larger local governments (which will be prescribed by the new finance regulation) will be required to have an audit committee to monitor and review financial integrity and effectiveness and make recommendations to the local government.
    • The power for local governments to appoint an external auditor has been maintained. This is in addition to the statutory role of the Queensland Audit Office, which has not changed.
  • penalties for non-compliance.
    • These provisions combine with earlier intervention, capacity building and performance evaluation and reporting to ensure that any risks, such as with investments, will be within the capacity of that local government to manage.

   

• How long will a community plan be for and how frequently will it be reviewed?

  The Act supports local governments to achieve best practice by including clear requirements for long-term community planning. This means transparency and accountability through development of community plans. These will be ten year plans (minimum) reviewed annually, reflecting the community’s vision for the future.

  In line with the commitment to a principles-based legislative approach, the content of the plan and the method of community engagement will be decided by individual local governments. Guidance is enshrined in the Act under the purpose, principles for local government and the financial sustainability criteria and specific financial requirements.

• Can you explain more about community engagement?

  Previously, community engagement processes were detailed in legislation. One of the Act’s principles is that any person acting under the legislation must ensure ‘democratic representation, social inclusion and meaningful community engagement.’

  Local governments will not be bound by prescribed processes such as referenda or timeframes for consultation. They will have the flexibility to use a whole range of community consultation mechanisms according to the issue, their needs and the size, culture and location of their community. For example, this could range from individual phone calls to email surveying.

  An example of this principle in action is that, as part of an assessment for an application for a change to a local government name, boundary, division or number of councillors, the local government will have to provide evidence of meaningful community consultation and engagement.

  Additionally, the change commission considering any application will need to, as part of their assessment, conduct public consultation about the proposed changes.

  Councils embarking on community engagement as a new function may request additional assistance and best practice models as guides.

• How does the Act affect financial disbursements?

  The Act assists local governments to clearly manage financial disbursements in a legitimate way and contains penalties for councillors who make either improper disbursements or loans. Councillors are given much more control over the disbursement of funds than members of State Parliament. For instance, councillors will continue to be able to have discretionary funds.

  These privileges come with a high level of responsibility. It is not appropriate for councils or councillors to work outside their yearly budgets without telling ratepayers what they are doing.

  Discretionary funds will be clearly defined and will be used in accordance with requirements prescribed under a regulation.

  A more transparent process will be required for discretionary funds, including:

  • public notification of the size of the discretionary funding pool
  • application by community groups for allocation
  • resolution by council regarding individual allocations
  • reporting and publication of the resolution, results of the applications and acquittal of the funding.
• What are the minister’s new powers under the Act?

  The Act preserves a number of ministerial powers under the Local Government Act 1993 such as the powers to suspend and dissolve a local government and appoint an administrator.

  The Act clarifies and simplifies ministerial powers. For example, the Act now empowers the minister, rather than the governor in council, to:

  • declare a local law as ceasing to have effect, either permanently or via suspension. Any action, and the reasons for the action, will be published in the government gazette to ensure transparency.
  • suspend or revoke the operation of a local government resolution by giving notice in the government gazette and directing the resolution be reconsidered or changed before re-making.

  There are a number of new ministerial powers that have been introduced. For example:

  • The minister is empowered to recommend to the governor in council that a mayor or councillor be suspended or dismissed. This power has been introduced in response to stakeholders asking to save a whole council from disrepute and dismissal.
  • The minister has the ability to direct councils, suspend councillors on full pay and recommend matters to the Regional Conduct Review Panels or the Local Government Remuneration and Discipline Tribunal.

  To reflect the gravity of these powers, the minister is not permitted to delegate powers relating to removing unsound decisions of a local government, removing or suspending a councillor or dissolving a local government and appointing an administrator. The minister’s powers under the Act reflect the constitutional and legislative responsibility the Minister has for the performance of local government.

  The minister’s powers have been scrutinised to ensure that the principles of natural justice are observed. A show cause process will precede any exercise of the more punitive powers, with any decision to dismiss a councillor or dissolve a council to be put into effect by a regulation.

• What natural justice measures are preserved for councillors in the Act?

  Natural justice is upheld during all disciplinary processes for councillors. Although judicial review and appeals to the courts are not provided for under the Act, a number of other equally robust measures are included to ensure that the principles of natural justice are observed.

  There are clear criteria for when dismissal of a councillor or dissolution of a council may take place. These processes balance the need for decisive action with the need to ensure natural justice is adhered to.

  Most disciplinary processes will go through the new Regional Conduct Review Panels or Remuneration and Discipline Tribunal, which will be independent bodies experienced in hearing local government disciplinary matters. These entities do not have the power to dismiss a councillor or dissolve a council.

  The Tribunal has the power to recommend to the Minister that a councillor be dismissed. At this point, the Minister can commence a show cause process, giving the councillor involved a second chance to have their case heard.

  If the minister then decides to recommend dismissal of the councillor or dissolution of the council, this must be done by the governor in council through a regulation. For dissolution, Parliament must ratify the regulation. For dismissal, the regulation will be tabled in Parliament.

• Why has the state increased its powers of intervention?

  The state has a direct interest in ensuring that local governments are efficient, effective and ethical in meeting their policy and service delivery obligations as a third sphere of government.

  This is because:

  • the state bears constitutional responsibility for local government
  • the state may be the guarantor for local government borrowings
  • the community expects the state will ensure that local governments deliver services effectively
  • the state has a role in establishing the Local Government Grants Commission to allocate Commonwealth funding to local governments
  • the state provides substantial funding to local governments through grants and subsidies.

  Under the Local Government Act 1993 there is no power for the state to require a local government to take positive action to avoid a detrimental situation occurring. For example, in the case of the former Johnstone Shire Council there was power to request information and conduct an inquiry but none to direct the Council to take early preventative action or appoint an adviser to a capacity building role in the council. This means that the state is open to the criticism that intervention only occurs when a local government has already reached breakdown point.

  The new Act recognises that to support local governments to resolve difficulties, the state needs a continuum of educative, preventative, monitoring and enforcement strategies, in addition to the use of punitive sanctions of dismissal and dissolution. In order to effectively manage the interaction with local governments, the Minister's power to request and receive information from local governments has been clarified.

• Why is the state tightening its grip on local government when there were promises of more independence?

  The shift to principles-based legislation gives local governments choices about processes to suit their size, location and administrative circumstances, as long as the processes are consistent with the local government principles. For example, a local government will be able to make local laws as it sees fit, so long as the law is consistent with the principles set out in the new legislation.

  The Act is broad and facilitative rather than detailed and prescriptive. It allows for discretion by local governments to better meet the particular needs of the communities they govern, balanced by clear and appropriate consequences and penalties for failure to meet the principles and other requirements of the Act.

  The state is constitutionally responsible for local government and the community rightly expects prompt state action to address instances of local government dysfunction. A continuum of graduated responses by the state to local government dysfunction enables better support and assistance.

• Does the Act really allow for greater transparency and accountability where conflict of interest and material personal interest are issues?

  A key focus of the Act is greater transparency and accountability of local government to the community. The local government principles are geared to ensure local governments are open and honest with their communities. During consultation, the community asked for greater transparency with respect to material personal interest and conflicts of interest in councillor decision-making.

  This has been met by providing a clear, practical set of rules and procedures for when a conflict of interest or material personal interest arises during council business. Transparency is maintained by recording and publishing information about these matters.

  The requirements for transparency of decision-making and the declaration of conflicts of interests are contained in the Model Code of Conduct provisions of the Local Government Act 1993 and have been a mandated requirement since 2005.

  If this provision in the new Act is misused to stifle the rights of councillors to debate matters before council, ministerial powers will be used to revoke council resolutions and this type of misconduct will be referred to the Crime and Misconduct Commission.

  The former Integrity Commissioner’s view was that the open declarations of conflicts of interest are a minimum requirement to protect all councillors from allegations of self-interest or conspiracy to provide a councillor with the benefits of office. The Act’s provisions relating to this section are simply best practice and consistent with those used in comparable domains.

  Importantly, the Act supports councillors who are unsure whether they have a conflict of interest by allowing them to refer the matter to a vote at the council meeting.

  Material personal interest (MPI) is defined in the Act and the procedures for dealing with it are clear so that individual councillors must identify and act appropriately.

  The rationale for openness about MPIs and conflicts of interest is the achievement of the local government principles, especially transparency and effective decision making processes in the public interest and fairness towards all constituents. Decisions by councillors must be made in the public interest over and above any personal and private advantage or disadvantage to an individual councillor.

   

• Why are you making councillors judge their peers on conflicts of interest? This is an inappropriate role for councillors to play and the provision is open to abuse.

  The Act contains a provision that allows a councillor who is unsure of a conflict of interest to put the matter to a vote at the council meeting. Protection and surety for councillors in dealing with the often murky area of conflicts of interest encourages a culture of openness and honesty about conflicts of interest. Because of the difficulty some councillors have in identifying and dealing with conflict of interest, it is helpful to be transparent and to discuss the conflict and collectively determine its impact on the councillor’s ability to vote.

  The issue is whether a particular conflict of interest is sufficient, in the opinion of council, to affect the councillor’s ability to make a decision which is in the public interest. This is what the council is being asked to make a decision on, and the decision must be minuted.

  This arrangement is consistent with those in similar situations, such as boards of directors. In addition, the former Integrity Commissioner was consulted during the drafting of the legislation and supports this approach.

• Why is the state government punishing contracted staff by publishing their salaries?

  Ratepayers are entitled to know how their local government is spending their money. The onus is on the local government to justify its decisions to the community.

  The requirement that a local government publish the remuneration bands of the CEO and the senior tier of contracted employees in the annual report is consistent with the fundamental principle of transparency about the use of public money and with state requirements for publishing the remuneration bands of all senior executive officers.

• What is the difference between an authorised person and a local government worker and under what circumstances can these people enter a ratepayer’s property?

  The power of entry provisions seek to uphold individual property rights by ensuring notice must always be given before entering a property, but also recognise the genuine need for local governments to take action in emergency situations.

  An authorised person is a person who has been appointed to ensure that members of the public comply with the local government Acts.

  Authorised persons have certain powers to achieve public compliance. This includes powers to enter property and to issue remedial notices and penalty infringement notices.

  The Act provides other entry powers for local government workers. A local government worker must be an employee of the local government and have an identity card. They may be required under certain circumstances to enter private property.

  The general conditions of entry for authorised persons or local government workers are with permission from an owner or occupier, in accordance with a warrant or with reasonable written notice. The criteria for these different circumstances are clearly laid out in the Act to give property owners certainty about their rights.

  Authorised persons or other persons may enter private property where written notice of intention to enter a property has been given but no permission received. The purpose of the officer must also be in accordance with the Act, for example to repair local government facilities.

  There are very limited circumstances when these people may enter private property with no notice. Generally, these are cases where there is a potentially dangerous situation (for example, a tree that has blown over in a storm) and urgent action must be taken.

• Why is the Local Government Association of Queensland Inc. not included in the Act?

  The LGAQ’s presence in a statute governing local government powers, responsibilities and obligations, which first was enacted in 1910, is an anomaly that cannot be sustained in a modern public governance statute.

  Such is the corporate strength, range and effectiveness of the LGAQ that this prescription is no longer needed today. For example, the removal of the need for LGAQ’s rules to be approved by the governor in council will reduce unnecessary red tape.

  The state has to be practical about the use of public moneys in providing assistance for the LGAQ to transition to a more suitable statute. As the LGAQ’s shareholdings are not listed on the Australian Stock Exchange, the transfer of these holdings will attract no duty and any administration costs relating to them are the private business of the LGAQ. It is wholly inappropriate for the state to provide funds for the transference related to the LGAQ’s private business interests.

  The Office of State Revenue will assess an application made by the LGAQ for ex gratia relief from stamp duty costs which could save the LGAQ and its members an estimated $900,000.

  The Act provides for the commencement of the LGAQ’s new status on 1 July 2010 to reduce audit costs in the changeover year. The change of date will reduce the cost estimated by the LGAQ from $60,000 to $10,000.

• Why are local governments not recorporatising?

  Local governments will not be recorporatised with this Act.

  The state government’s commitment is that this position will be revisited once the full implications of the Federal Government’s new industrial relations legislation, the Fair Work Act 2009, have been ascertained and negotiations carried out with the Commonwealth.

  The state government is negotiating with the Commonwealth on the application of the new system and how the state and Commonwealth systems will interact. At this stage, it is too early to assess the full implications of the new system.

• It seems unreasonable that a candidate for local government election must live in the local government area – why is this so?

  The requirement for a candidate for election to live in the local government area will be considered in the development of the proposed local government electoral Bill.

• Why does the Act disqualify candidates for State Parliament elections from being councillors rather than allowing them to stand down?

  This has been a requirement under the Local Government Act 1993 since 2001 and ensures no conflict of interest issues arise when campaigning for election at the state level.

  When ratepayers vote for candidates in local government elections, they expect them to be committed to serving the full term in council. This provision protects that expectation. Furthermore, given that local governments seek to be recognised as a legitimate third sphere of government, it is important to ensure that councillors are committed to serving at this level.

• Are the disqualifications from being a councillor consistent with those applicable to members of the Queensland Parliament?

  The disqualifications from being a councillor under the Act are aligned as far as possible with those applying to members of the Queensland Parliament, outlined under clause 64 of the Parliament of Queensland Act 2001.

  Community expectations are that representatives at both local and state level will be of high standing in the community. It is important to maintain these disqualifications in legislation so that people who have recently broken the law can not serve as elected representatives.

• When will the regulations be developed?

  The department is working closely with stakeholders to develop regulations for the Local Government Act 2009. The focus will be, as with the Act, on streamlining processes and removing red tape where possible, while remembering that one size does not always fit all. Three new regulations are proposed, each one providing certainty and clarity for local government and the community.

  The Local Government (Beneficial Enterprises and Business Activities) Regulation 2009 applies the prescription required by the Federal Government for the operation of National Competition Policy, as well as further details for the application of powers for beneficial enterprises.

  Another regulation will deal with financial matters, procurement arrangements and planning requirements, detailing any necessary process for implementation of the longer-term planning and accountability processes specified in the Act. Importantly, the Local Government Finance Standard 2005 will be removed, with essential features incorporated in the regulation.

  A third regulation will provide for general and operational matters, such as local government meeting procedures, employee matters and drafting standards for local laws.

  It is the minister’s intention to release each regulation as a draft sequentially over the next three months. This will enable consideration of stakeholder advice before the regulations commence with the new Local Government Act 2009 in December 2009.

  If your question has not been answered, please This e-mail address is being protected from spambots. You need JavaScript enabled to view it with your enquiry.

• Our council has started working on a community plan. Will it be valid under the new Local Government Act 2009?

  A community plan will be valid under the new Act if it meets the requirements of the new Act and the Local Government (Finance, Plans and Reporting) Regulation 2009 when they commence.

  A council may begin/continue developing a community plan taking into consideration the following:

  • that it meets the requirements of the new Act that are currently published though not commenced
  • that it meets the requirements of the new Finance Regulation that will be released in draft form by the end of November 2009
  • that when the Act and Finance Regulation commence during 2010, there will be a transitional period to allow local governments until 1 December 2011 to prepare and adopt a community plan that complies with the Finance Regulation.

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