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the Local Government Act 1989 (Vic) (LGA1989), which Marlene Kairouz MP labelled in her second reading speech as "outdated, incoherent and enmeshed in prescriptive detail".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 Explicitly listed financial duties in the LGA1989 have been replaced by a broad requirement for proper accounts and records.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.
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.
This publication does not deal with every important topic or change in law and is not intended to be relied upon as a substitute for legal or other advice that may be relevant to the reader's specific circumstances. If you have found this publication of interest and would like to know more or wish to obtain legal advice relevant to your circumstances please contact one of the named individuals listed.