Australia: Forcing local council amalgamations in Western Australia – Update 5

Last Updated: 9 October 2014
Article by Anne Wood

Correct as at 8 September 2014

On 2 December 2013, Kott Gunning released "Forcing Amalgamations – Update 3". This update – "Update 5" has been prompted by the recent publicity about the National Party's position on forced amalgamations in the metropolitan area.

Update 5 provides both a reminder of the provisions that the Government was seeking to move through the Parliament on 2 December 2013 (when Update 3 was released) and some proposed changes which have occurred to the Bill in the meantime.

We anticipate this Bill is unlikely to make it through both Houses of Parliament however for the sake of interest, we provide the following summary of the Bill and the changes that it proposed to make to the Local Government Act 2005. The membership of the Local Government Advisory Board will expand to include two people nominated by the Minister and an additional two to be nominated by WALGA. This will change the membership of the board from:

  1. 5 members of whom:
    1. 2 are appointed and nominated by the Minister;
    2. 2 are appointed by the Minister from a list of nine nominations from WALGA; and
    3. 1 is appointed by the Minister from a list of nominations from LGMA; to
  1. 9 members of whom:
    1. 4 are appointed and nominated by the Minister;
    2. 4 are appointed by the Minister from a list of twelve nine nominations from WALGA; and
    3. ( 1 is appointed by the Minister from a list of nominations from LGMA;
  1. The quorum for the meeting will change from 3 to 5 4.

This change, as it is currently drafted, will affect country and metropolitan proposals.

The Local Government Advisory Board will no longer be required to have regard to government policy. A new section will be inserted to enable the Minister to advise the Local Government Advisory Board in writing of relevant government policy. However the proposed section now states that the Local Government Advisory Board does not have to act in accordance with the Government Policy. (This change, as it is currently drafted, will affect country and metropolitan proposals).

There will be a new category of proposals to the Local Government Advisory Board which will be known as a "metropolitan proposal". The Local Government Advisory Board will be given a new power to hold a combined inquiry into one or more proposals and those proposals will be dealt with as one. (This change, as it is currently drafted, will affect country and metropolitan proposals).

In relation to metropolitan proposals only, the current requirement to allow a minimum of 6 weeks for submissions to be made by affected local governments, affected electors and electors of other districts directly affected by the proposal will be removed enabling (for metropolitan proposals where a notice and report has been given after these amendments come into effect and before 31 December 2016 (or such later date as set by the Governor) only) the Local Government Advisory Board to:

  1. Revise the scope of the inquiry and not advise that submissions on the revised scope of the inquiry can be made;
  2. Not call for submissions about the proposal or the scope or the revised scope.

There will be a removal of the current prohibition on the Local Government Advisory Board on making a recommendation to the Minister of an order that is significantly different from the proposal that it inquired into without providing an opportunity for submissions on the new proposal (This change applies to metropolitan proposals where a notice and report are given between the date these amendments come into force and the 16 December 2016 (or such later date as set by the Governor) only.) This means that an inquiry on a particular proposal could be made and a recommendation to the Minister made to implement a different proposal made by the Local Government Advisory Board without any opportunity for the affected local governments or electors to make submissions about the new proposal.

The Local Government Advisory Board will be given a new power to defer consideration of a proposal if it knows or reasonably suspects that another proposal has or will be submitted to the Board and that deferral is necessary or desirable to be considered as part of one combined inquiry. (This change, as it is currently drafted, will affect country and metropolitan proposals).

There is no limit on the time for which consideration of a proposal can be deferred for and the Local Government Advisory Board may chose to vary or rescind that deferral at any time. (This change, as it is currently drafted, will affect country and metropolitan proposals).

A new clause 11(5A) would be inserted in Schedule 2.1 that limits compensation (in accordance with regulation 19A of the Local Government (Administration) Regulations 1996):

  1. for a CEO or Senior Employee whose contract is terminated to that figure or the maximum amount their contract would have allowed them to obtain in any event;
  2. for any other local government employee who accepts voluntary severance by resigning as an employee, compensation is limited to the value of 12 months of remuneration of that employee or
  3. in any other case $5,000.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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