Local Government (Miscellaneous Amendments) Bill

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1 ARTHun Local Government (Miscellaneous Amendments) Bill EXPLANATORY MEMORANDUM Clause 1 sets out the purpose of the Act. PART 1-PRELIMINARY Clause 2 sets out when different sections of the Act will come into operation. Unless otherwise specified, the sections come into operation on the day the Bill receives Royal Assent. PART 2-COUNCIL OFFICERS Clause 3 inserts new definitions into the Act for "Chief Executive Officer" and "senior officer" and repeals the definition of "designated officer". "Senior officer" means the Chief Executive Officer and any other officer whose total employment cost, a phrase which is also defined, is in excess of $ per annum or other amount that might be prescribed. Clause 4 requires a council to appoint a Chief Executive Officer and that the appointee be a person and not a company. This clause will come into operation on 1 October Clause 5 requires a council which does not currently have a Chief Executive Officer position, to authorise a member of staff to perform the statutory duties required of a Chief Executive Officer until the council creates the position. Clause 6 repeals the transitional arrangements provided for in Clause 5. It will come into operation on 1 October 1994, the date by which councils are required to have a Chief Executive Officer. Clause 7 inserts sections 95A and 95B. Section 95A requires a council to appoint a senior officer on contract. A senior officer contract is to be for a term of 1 to 5 years and must include the criteria by which the officer is to have his or her performance reviewed annually. A Chief Executive Officer's performance is to be reviewed by council and all senior officers by the Chief Executive Officer. A council must make a senior officer contract with a person, not a company. Section 95B provides that the Minister may exempt a council from complying with the requirements for senior officer contracts. Sub-clauses 2 and 3 deal with officers who are not currently on contract. For senior officers not currently on contract, the Act will deem contracts complying with the Act to be in existence until 30 September Councils will, as a result of this provision, be required to put these officers on contracts under the Act on or before 1 October Sub-clause 4 clarifies that existing contracts are not be affected by the new requirements. However, a council will be required to enter into a contract complying with the Act if it wants to continue employing a senior officer whose contract expires. 1 1-[l73J O (Rev. No. 3) (922) 1

2 Clause 8 repeals section 97 of the Local Government Act 1989 which requires a council to have certain designated officers. Clause 9 substitutes a new section 97 and inserts 2 new sections. This clause will come into operation on 1 October Section 97 lists the functions of a Chief Executive Officer. These include ensuring that staff are appointed in accordance with the organisational structure approved by the council. Section 97 A requires the performance of senior officers to be assessed annually. Section 978 requires the Chief Executive Officer to maintain, and make available for pubhc inspection, a register showing the total employment cost to council of each senior officer. Clause 10 repeals section 100 of the Local Government Act 1989 which protects certain officers against removal from office. Clause 11 abolishes the Local Government Qualifications Board and provides that members of the Board cease to hold office. Clause 12 is a new provision which prevents a council from appointing to its staff any person who, in the last 2 years, has been a councillor of the council. Clause 13 provides that a reference in any other legislation or document to a municipal clerk is to be construed as a reference to a chief executive officer. Clause 14 makes minor consequential amendments to the Local Government Act Clauses 15, 16 and 17 make amendments to the Health Act 1958 and require a council to have an environmental health officer who is, or who is eligible to be, a member of the Australian Institute of EQvironmental Health. Clauses 18 and 19 make amendments to the Building Control Act 1981 and require a council to appoint a municipal building surveyor. The person appointed need not be a member of council staff but must hold a certificate of qualification from the Building Control Qualification Board. A council may appoint an unqualified person for up to 6 months in a year and for longer with permission from the Minister. Clause 20 makes minor consequential amendments to other Acts as a result of removing designated officers. PART 3-ROADS AND TRAFFIC Clause 21 inserts a definition of "public highway" and substitutes a new definition of "road". Clause 22 substitutes new sections F. Section 203 provides that a public highway vests free of mortgages, charges, leases or subleases in the council of the municipal district in which it is located. The section specifies the time that this vesting occurs. This section also identifies those roads which do not vest in councils. 2

3 Section 204 provides that a council maydeclare, by notice in the Government Gazette, a road within its municipal district to be a public highway; declare, by resolution, that a road is reasonably required for public use to be open. A road which is declared by resolution to be reasonably required for public use does not become a public highway by virtue of the resolution. Section 205 identifies those roads for which a council has care and management. It also sets out the nature of the care and management role. Section 206 provides that the powers of a council in relation to roads within its municipal district includes the powers set out in Schedule 10. This section also provides that the exercise of particular powers under Schedule 10 does not in itself vest the land in a council. Section 207 provides that a council's powers in relation to traffic include those set out in Schedule 11. Section 207 A provides that a person may make a submission under section 223 in relation to the proposed exercise of particular powers by a council in relation to roads and traffic. Section 207B (1) provides that the following land will vest in a council (if not already vested in the council)- land acquired for a road deviation; and land in a road, or part of a road, which is discontinued. Section 207B (2) provides that if the land in the road is Crown land it will not vest in the Council. Section 207B (3) provides that the road vests free of all encumbrances, except for those set out in section 207c, on the date that notice is published in the Government Gazette. It also provides that the relevant land is brought under the operation of the Transfer of Land Act 1958, if not already under the operation of that Act on the date that the notice is published in the Government Gazette. Section 207B (4) provides that the Subdivision Act 1988 does not apply to the discontinuance of a road, or part of a road, under particular clauses of Schedule 10. Consequently, the Subdivision Act 1988 does not apply to the vesting of the land in a road in the council. Section 207c preserves the rights, powers or interest held by a public authority in a road and provides that the Registrar of Titles may record any such right, power or interest on the relevant folio. This section also provides that if the council seeks the consent of the public authority to extinguish that right, power or authority that the authority may not unreasonably withhold its consent. Section 207D (1) sets out that this section applies where as the result of the exercise of particular powers under Schedule 10 or 11 land vests in the council or the title to land is affected and where the land in the road will either be retained by the council or where the disposition of the land involves the whole of the land. If the disposition of the land involves dividing the land section 35 of the Subdivision Act 1988 will apply. 3

4 Section 2070 (2) sets out what a council must provide, if required, to the Registrar in relation to the land referred to in sub-section (1). Sections 2070 (3) and (4) set out the powers of the Registrar in relation to the registration of land which vests in the council or is affected by action taken by the council. Section 2070 (5) provides that section 54 of the Transfer of Land Act 1958 does not apply to land which can be dealt with under this section so that the council does not have to be registered as the owner to allow the land to be dealt with. Section 207E requires the Registrar, on application by the registered proprietor or mortgagee in possession, to alter titles to land involved in a "road exchange". The application must be in a form approved by the Registrar, contain all the information required by the Registrar and be accompanied by the written consent of the proprietor of any mortgage, charge, lease or sublease that applies to the land. This section also provides that the Subdivision Act 1988 does not apply when there is an exchange of land under this section. Section 207F allows a council to recover extraordinary expenses incurred in repairing a road damaged as a result of extraordinary traffic or excessive weight from the person responsible for causing the damage. Clause 23 repeals sections 163 (7) and (8) and 221 (6) of the Local Government Act The repeal of these sections will allow councils, where appropriate, to recoup the costs for repair or reconstruction works on roads which were constructed under what was known as a "private street scheme" under the Local Government Act Clause 24 inserts section 189 (4) into the Local Government Act This section has been inserted to ensure that councils need only consult on the sale of land in a discontinued road once. Councils are required under section 206 to go through a public consultation process when it discontinues a road and either sells or retains the land in the road. This section ensures that they do not have to go through a second consultation process under section 189 of the Act. Clause 25 substitutes Schedules 10 and 11 of the Local Government Act Councils' powers over roads include the powers set out in Schedule 10 and Councils' powers over traffic include those set out in Schedule 11. Clause 26 repeals sections 12 (1), (2) and (3) of the Local Government (Consequential Provisions) Act The repeal of these sections will allow Councils, where appropriate, to recoup the costs for repair and reconstruction works on roads which were constructed under what was known as a "private street scheme" or a "special improvement charge" under the Local Government Act 1958 or a special rate or charge under the Local Government Act Clause 27 repeals Part XIX of the Local Government (Miscellaneous) Act 1958 which relates to roads. It also provides that if any act matter or thing, such as a road discontinuance or "road exchange", has been commenced under the 1958 Act it may be completed under that Act. 4

5 PART 4-MISCEILANEOUS AMENDMENTS Clause 28 (1) repeals paragraph (d) of section 114 to avoid confusion over the question of who may enforce local laws. This will be done by authorised officers under section 224. Sub-clause (2) clarifies that authorised officers are appointed to both administer and enforce local laws. Sub-clause (3) requires councils to keep a register of authorised officers. Sub-clause (4) extends the powers of an authorised officer to demand a name and address to instances where the authorised officer reasonably suspects an offence has or is about to be committed. Sub-clause (5) inserts a new sub-section (6A) in section 224 (6) to require an authorised officer to inform the person of the grounds on which a demand for name and address is made. Clause 29 repeals section 140 (1) which is inconsistent with new financial reporting obligations. Clause 30 inserts a new sub-section 144 (4) to require councils to provide the Minister with prescribed details of a budget or revised budget within the prescribed time. Clause 31 provides councils with the choice of using a pre-registration tendering system. Clause 32 repeals section 197 which provided for financial guarantees by Councils. The provision is not workable and with its repeal councils can use their general powers. Clause 33 inserts a new sub-section (4) in section 219 to allow an administrator of a council to represent or appoint another person to represent the council on committees and boards. Clause 34 includes the Local Government Act 1989 in the Schedule of the Planning Appeals Act 1980 to clarify that the procedures of the Planning Appeals Act apply to the consideration of matters under the Local Government Act Clause 35 amends the Chinatown Historic Precincts Act 1984 to update references to various Acts and repeal old provisions. Clause 36 preserves by-laws made in relation to the Chinatown Historic Precinct Act 1984 for 3 years until replaced by local laws. Clause 37 amends section 15 of the Planning and Environment Act 1987 to update references from the Local Government (Miscellaneous) Act 1958 to the Local Government Act Clause 38 repeals spent Acts. Clause 39 makes various statutory law amendments of a typographical or minor nature. By Authority L. V. North, Government Printer Melbourne 5

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