Local Governments undergoing amalgamation that are members of
Regional Local Governments are going to have to look at the
consequences the amalgamation will have on the Regional Local
Government and its operation.
The term Commencement in this update means the day of
commencement of any amalgamation order made by the Governor on the
recommendation of the Minister pursuant to section 2.1 of the
Local Government Act 1995 (WA) (the
References to an Establishment Agreement in this paper are a
reference to an establishment agreement made pursuant to Part 3,
Division 4 of the Act.
The position of a Local Government and its status as a member of
a Regional Local Government is going to depend on the nature of the
order made under section 2.1 of the Act. We have set out below some
Where a Local Government takes over the whole of the area of an
This scenario is where the order has the effect of a Local
Government remaining but taking over the whole of the area of an
abolished District by boundary change. Alternatively it will also
apply where a new District is created that takes over the whole of
the area of an abolished District.
In this case the rights and liabilities under a section 3.64
Establishment Agreement entered into by the abolished Local
Government will likely become rights and liabilities of the
remaining or newly created Local Government pursuant to Regulation
6 (4) (a) of the Local Government (Constitution ) Regulations
1998 (WA)(the Constitution Regulations).
However, it would be advisable for the new or reformed Local
Government to review the appropriateness of continuing to be a
member of the Regional Local Government given the new or changed
environment it finds itself in.
The terms of the Establishment Agreement itself may provide some
guidance on these issues. There may also be terms contained in the
Establishment Agreement that trigger rights by reason of the
amalgamation. These rights will be effective and may bind the new
Where a Local Government takes over part only of the area of an
This scenario is where the order has the effect of abolishing a
Local Government with 2 or more other Local Governments each taking
over parts of the area either by boundary change or the creation of
a new Local Government.
In this scenario the Constitution Regulations do not alter any
rights including rights under an Establishment Agreement.
However, there is an obligation under clause 11 (2) of Schedule
2.1 to the Act on all Local Governments affected by an amalgamation
to negotiate as to any adjustment or transfer of rights. If the
Local Governments do not agree on what should happen and they
cannot resolve the matter by negotiation then the Minister has
power to resolve those disputes under section 9.63 of the Act.
Consequently the Governor has power under clause 11 (3) of
Schedule 2.1 to the Act to give effect to the Minister's
Where a Local Government is not abolished but loses area
Where a Local Government, let's call them (A) is
not abolished but say loses part of its area to another local
government, let's call them (B) then rights and
liabilities as a member of a Regional Local Government will still
remain with Local Government (A) after Commencement.
Care will need to be taken as it may no longer be appropriate
for Local Government A to remain a member of its Regional Local
Government given the area that it has now lost.
In any event it will be important for the affected Local
Government to carefully review the terms of the Establishment
Agreement as this should contain procedures for the winding up of
the Regional Local Government and for the division of its
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.
Kott Gunning is a proud member of
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
Because of the high costs, royal commissions should only be convened to address issues of substantial public importance.
Some comments from our readers… “The articles are extremely timely and highly applicable” “I often find critical information not available elsewhere” “As in-house counsel, Mondaq’s service is of great value”
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).