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Local Government Legislation Amendment (Rating and Other
Matters) Bill 2022
Introduction Print
EXPLANATORY MEMORANDUM
General
The Local Government Legislation Amendment (Rating and Other Matters) Bill 2022 makes a range of amendments to the Local Government Act 1989, the Local Government Act 2020, the Essential Services Commission Act 2001, the Accident Compensation Act 1985, the Workplace Injury Rehabilitation and Compensation Act 2013 and the Domestic Animals Act 1994.
Clause Notes
Part 1—Preliminary
Clause 1 sets out the purposes of the Bill which are to—
• make amendments to the Local Government Act 1989 in relation to rates and charges; and
• make miscellaneous and technical amendments to the Local Government Act 2020; and
• make miscellaneous and technical amendments to the Essential Services Commission Act 2001, the Accident Compensation Act 1985 and the Workplace Injury Rehabilitation and Compensation Act 2013; and
• amend the Domestic Animals Act 1994 in relation to reuniting pets with their owners.
591192 BILL LA INTRODUCTION 7/6/2022
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Clause 2 is the commencement provision. It provides that—
• Part 1 comes into operation on the day on which the Bill receives the Royal Assent; and
• clauses 40 and 43 are taken to have come into operation on 24 October 2020. The amendment made by clause 40 will substitute references to the correct section of the Local Government Act 2020 in savings provisions in section 329 of that Act. The amendment made by clause 43 will ensure that section 82(8A)(d) of the Accident Compensation Act 1985 correctly refers to an application for misconduct or serious misconduct by a Councillor under section 81B of the Local Government Act 1989; and
• the remaining provisions of the Bill (except Part 2 and clause 42(1)) come into operation on the day after the day on which the Bill receives the Royal Assent; and
• Part 2 and clause 42(1) of the Bill come into operation on a day or days to be proclaimed but by no later than 20 June 2023.
Part 2—Amendment of Local Government Act 1989
Division 1—Service rates and service charges
Clause 3 inserts a definition of waste, recycling or resource recovery services into section 3(1) of the Local Government Act 1989. Councils will be able to declare service rates or annual service charges for those services, under clauses 4 and 5 of this Bill.
Clause 4 amends section 162 of the Local Government Act 1989 to update the description of services for which a Council may declare a service rate or an annual service charge. This clause will—
• repeal section 162(1)(a) and (c) to remove the ability of Councils to impose rates or charges for the provision of water supply or sewage services, which are services no longer provided by Councils; and
• substitute "the collection and disposal of refuse" with a reference to waste, recycling or resource recovery services (as now defined in section 3(1)) in
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section 162(1)(b), to accurately reflect the services provided by Councils.
Clause 5 amends section 221 of the Local Government Act 1989 to update the description of services for which a Council may declare an annual service charge on land which is not rateable land. This clause will—
• repeal section 221(1)(a) and (c) to remove the ability of Councils to impose an annual service charge for the provision of water supply or sewage services, which are services no longer provided by Councils; and
• substitute "the collection and disposal of refuse" with a reference to waste, recycling or resource recovery services (as now defined in section 3(1)) in section 221(1)(b), to accurately reflect the services provided by Councils.
Division 2—Special rates and special charges
Clause 6 amends section 163 of the Local Government Act 1989 to ensure timely levying of special rates or charges. This clause provides that a declaration of a special rate or charge made under section 163(1) will expire 12 months after the date of declaration if a Council does not send a levy notice to all persons that are liable to pay that rate or charge within that 12 month period.
Division 3—Rebates and concessions
Clause 7 amends section 169 of the Local Government Act 1989 to expand the circumstances in which Councils may grant a rebate or concession.
Subclause (1) will insert new subsection (1AA) to enable Councils to grant a rebate or concession in relation to any rate or charge if all of the following are satisfied—
• the land is being used for a public benefit; and
• the land is being used for the direct provision of goods or services that are available to the public, or a substantial portion of the public, free of charge or for a nominal charge; and
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• the land is not being, or will not be, used primarily for the purposes of the distribution of profit to owners, members or shareholders of the entity from the operation of the entity, the winding up the entity or the estimated annual value of the land.
Councils will continue to have the discretion to grant a rebate or concession in the circumstances set out in section 169(1) and the remaining provisions of section 169 that apply to a grant or rebate under section 169(1) will also apply to a grant or rebate under new subsection (1AA).
Subclause (4) substitutes section 169(3) of the Local Government Act 1989 to insert the definition of estimated annual value, which will have the same meaning as in the Valuation of Land Act 1960.
Division 4—Payment plans
Clause 8 amends section 3(1) of the Local Government Act 1989 to insert definitions of payment plan and payment plan instalment.
Clause 9 inserts new section 171B of the Local Government Act 1989 to enable a Council to enter into a payment plan with a person for the payment of an unpaid rate or charge (including unpaid interest under section 172), on application by the person.
New section 171B(2) clarifies that a payment plan may be for unpaid rates or charges that are being paid in instalments, or for which payment was deferred or waived in part.
New section 171B(3) enables a Council to determine the terms of a payment plan, including the duration, amount and frequency of payment plan instalments and any other terms.
New section 171B(4) requires a payment plan to specify the matters determined by the Council under subsection (3) and any prescribed matters.
New sections 171B(5) and (6) enable a payment plan to include a component for reasonable interest. However, interest cannot be charged on unpaid portions of an instalment plan under section 167 if that instalment plan included reasonable interest costs.
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New section 171B(7) enables a Council to cancel a payment plan if the person is not complying with its terms. Under new section 180A(4), as inserted by clause 13, a Council is prevented from commencing a proceeding under section 180(1) for an unpaid rate or charge that was subject to a payment plan unless it has been at least 24 months since the payment plan was cancelled.
Clause 10 amends section 172 of the Local Government Act 1989 to enable a Council to charge interest on unpaid rates and charges which have not been paid by the date specified in a payment plan. The section prohibits a Council from charging interest on an unpaid amount that is interest already charged under the Act.
Clause 11 amends section 175(1D)(a) of the Local Government Act 1989 to provide that the requirement for the new owner of a property to pay unpaid rates or charges (including by instalments) does not apply to payment plans relating to rates or charges that are in arrears.
Clause 12 amends section 180(1) of the Local Government Act 1989 to limit a Council's ability to recover an unpaid rate or charge in the Magistrates' Court or by suing for debt in the circumstances set out in new section 180A, as inserted by clause 13.
Clause 13 inserts new section 180A of the Local Government Act 1989. New section 180A sets out the circumstances in which a Council is prevented from commencing a proceeding for the recovery of an unpaid rate or charge.
New section 180A(1) prevents a Council from commencing a proceeding under section 180(1) for an unpaid rate or charge that has not been deferred under section 170 or been subject to a payment plan unless—
• the Council notifies the person in writing and advises them of available payment options, including deferrals and payment plans; and
• it has been at least 24 months since that occurred and the person has not deferred the payment, entered into a payment plan or used any other available payment option.
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New section 180A(2) prevents a Council from commencing a proceeding under section 180(1) to recover an unpaid rate or charge deferred under section 170 unless the Council has sent a notice to the person under section 170 requiring the person to make payment and the person has failed to make payment as required by that notice.
New section 180A(3) prevents a Council from commencing a proceeding under section 180(1) for an unpaid rate or charge that is subject to a payment plan. A Council will not be able to commence a proceeding for an amount subject to a payment plan unless the person is not complying with the terms of the plan and the Council has cancelled the plan.
New section 180A(4) prevents a Council from commencing a proceeding under section 180(1) for an unpaid rate or charge that was subject to a payment plan unless it has been at least 24 months since the plan was cancelled.
Clause 14 amends section 181(1)(b) of the Local Government Act 1989 to provide that a Council cannot sell land to recover unpaid rates or charges, or cause the land to be transferred to the Council, if a payment plan is in place and being complied with.
Division 5—Ministerial Guidelines
Clause 15 inserts new section 181AA of the Local Government Act 1989, to allow the Minister to make guidelines relating to the payment of rates and charges. The matters for which guidelines may be made include the meaning of hardship and financial hardship for the purposes of sections 170, 171, 171A and 172A, the content of hardship policies and financial hardship policies, the process for applying for payment plans, and the circumstances in which relief may be provided to ratepayers.
The Minister will be required to—
• consult with the Minister responsible for administering the Essential Services Commission Act 2001 and the Essential Services Commission, prior to issuing the guidelines; and
• publish the guidelines in the Government Gazette and on the Department's Internet site.
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Councils are required by new section 181AA(3) to comply with guidelines issued under the section.
Division 6—Fixing maximum interest rate chargeable on unpaid rates and charges
Clause 16 amends section 172(2)(a) of the Local Government Act 1989 to provide that interest payable on unpaid rates and charges is to be calculated at or below the rate fixed by the Minister under section 172A(1). New section 172A will require the Minister to fix the maximum interest rate on unpaid rates or charges. This will replace the requirement for interest to be calculated at the rate fixed under section 2 of the Penalty Interest Rates Act 1983.
Clause 17 inserts new section 172A of the Local Government Act 1989 to require the Minister to set a maximum interest rate chargeable on unpaid rates and charges by notice published in the Government Gazette. The new section—
• provides that the rate may be fixed from time to time;
• provides that the rate fixed by the Minister will take effect on 1 July of the next financial year following publication of the notice;
• requires the Minister to consult with the Minister responsible for administering the Essential Services Commission Act 2001 and request advice from the Essential Services Commission, and have regard to that advice, before fixing a rate; and
• requires the Essential Services Commission to provide advice to the Minister if a request is made and consider certain matters in providing that advice.
Clause 18 inserts new section 253 of the Local Government Act 1989, which provides for transitional arrangements.
The effect of subsection (1) is that the amendments made by clause 6, which provides that a declaration of a special rate or charge will expire after 12 months, will only apply to special rates and charges which are declared on or after the commencement of clause 6.
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Subsection (2) provides that where the Minister has not yet fixed a maximum interest rate under section 172A, or the first fixed rate has not yet taken effect, interest on unpaid rates and charges is to be calculated at the rate fixed under section 2 of the Penalty Interest Rates Act 1983.
Part 3—Amendment of Local Government Act 2020
Division 1—Confidential information
Clause 19 subclause (1) amends section 125(3) of the Local Government Act 2020 to provide that confidential information may be disclosed if it is information provided for the purposes of an application for internal arbitration or Councillor Conduct Panel hearing.
Subclause (2) inserts new subsections (4) and (5) into section 125 of the Local Government Act 2020, which concerns how certain kinds of confidential information are to be treated under the Freedom of Information Act 1982.
New section 125(4) provides that documents containing information described in paragraphs (a) to (g) of the definition of confidential information are not exempt documents (within the meaning of the Freedom of Information Act 1982) by virtue of section 38 of that Act. The intention is that documents containing confidential information of that kind may be disclosed, subject to any other provisions of Part IV of the Freedom of Information Act 1982 preventing disclosure. This amendment will allow freedom of information requests for documents containing such information to be processed consistently with existing exemptions in that Act.
Subsection (5) provides that if information is prescribed to be confidential information for the purposes of paragraph (k) of that definition, a document containing that information is not an exempt document (within the meaning of the Freedom of Information Act 1982) by virtue of section 38 of that Act if, for the purposes of section 125(5) of the Local Government Act 2020, the document is a prescribed non-exempt document or prescribed class of non-exempt document.
Clause 20 substitutes section 145 of the Local Government Act 2020, to provide for certain information relating to processes for misconduct against a Councillor to be confidential information,
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in addition to information provided to or produced by an arbiter for the purpose of an internal arbitration process (other than the finding and reasons).
The additional information is information in an application made under section 143 of the Local Government Act 2020 for an internal arbitration process, and information provided to the Principal Councillor Conduct Registrar or produced by the Principal Councillor Conduct Registrar for the purposes of an internal arbitration process.
Division 2—Council integrity
Clause 21 amends the definitions of misconduct and standards of conduct in section 3(1) of the Local Government Act 2020 to reflect that the Councillor Code of Conduct required under section 139 of the Act (as amended by clause 22) will automatically include standards of conduct prescribed under the regulations.
Clause 22 amends section 139(3)(a) and (b) of the Local Government Act 2020, so that the Councillor Code of Conduct developed under section 139 automatically includes the standards of conduct prescribed by the regulations and any other matters prescribed in the regulations. This will remove the need for Councils to republish the prescribed standards of conduct in the Councillor Code of Conduct.
Clause 23 subclause (1) amends section 141(1) of the Local Government Act 2020 to omit reference to the standards of conduct being prescribed, as this information is reflected in the definition of standards of conduct.
Subclauses (2) and (3) amend section 141(2)(d) and insert new section 141(2)(e) to make it clear that the rules of natural justice also apply to an internal arbitration process.
Clause 24 amends section 147(1) of the Local Government Act 2020 to omit reference to the standards of conduct being prescribed, as this information is reflected in the definition of standards of conduct.
Clause 25 inserts new section 147A into the Local Government Act 2020, to provide that an arbiter is not personally liable for anything done or omitted to be done in good faith in the exercise of a power or the discharge of a duty under the Local Government
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Act 2020 or in the reasonable belief that the act or omission was in the exercise of a power or the discharge of a duty under this Act. Any liability resulting from such an act or omission that would, but for new section 147A, attach to an arbiter will attach to the Council.
This new section will ensure that there is consistency in the immunity provided to arbiters and members of Councillor Conduct Panels, which examine applications regarding misconduct and serious misconduct by a Councillor respectively.
Clause 26 inserts new paragraphs (ca) and (cb) into section 149(1) of the Local Government Act 2020 to provide that the Principal Councillor Conduct Registrar has functions to provide general assistance to arbiters in relation to their functions and to publish any decision made by an arbiter and the statement of reasons for that decision.
Clause 27 amends section 167(1)(b) of the Local Government Act 2020 to omit reference to the standards of conduct being prescribed, as this information is reflected in the definition of standards of conduct.
Division 3—Miscellaneous and transitional
Clause 28 amends the definition of Department section 3(1) of the Local Government Act 2020 to reflect machinery of government changes which transferred responsibility for local government policy to the Department of Jobs, Precincts and Regions.
Clause 29 amends section 15(2)(b) of the Local Government Act 2020 to provide that, in determining the electoral structure of a Council, the number of voters per Councillor in a ward must not vary from the average number for all of the wards of the district by more than 10 per cent.
Clause 30 amends section 17(1) of the Local Government Act 2020 to provide that the Minister may request a ward boundary review if the Minister receives advice that the average number of voters per Councillor in a ward or wards of a Council vary from the average number for all of the wards of the district by more than 10 per cent.
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Clause 31 amends section 48(2)(c) of the Local Government Act 2020 to substitute "equity" with "equality" for consistency with other provisions of the Act which refer to "gender equality".
Clause 32 amends section 144(1) of the Local Government Act 2020, to substitute "application under" with "application made under" to make it clear that an application for internal arbitration is made under section 143 of the Local Government Act 2020.
Clause 33 amends the heading to Division 6 of Part 7 of the Local Government Act 2020, to clarify that Division 6 of Part 7 applies where a Councillor is stood down on the recommendation of the Minister.
Clause 34 amends section 228(5)(d) of the Local Government Act 2020 to correct a cross reference to the section under which a Commission of Inquiry report is tabled.
Clause 35 inserts a new Division heading before section 229 of the Local Government Act 2020, to clarify that section 229 relates to the standing down of a Councillor by VCAT.
Clause 36 subclause (1) amends section 240(8) of the Local Government Act 2020 to correct a typographical error which refers to "section 243" instead of "section 242(1)".
Subclauses (2) and (3) amend section 240(12) of the Local Government Act 2020 to clarify that it applies to the elections held on the fourth Saturday in October 2024 for the Whittlesea City Council and Casey City Council, despite the elections not being the second general elections for those Councils. The effect of this amendment will be to confirm that the same requirements in respect of notifying persons enrolled on the previous electoral roll apply to all Councils for the elections to be held on the fourth Saturday in October 2024.
Clause 37 amends section 243 of the Local Government Act 2020 to clarify that it applies to the general elections for the Whittlesea City Council and Casey City Council to be held on the fourth Saturday in October 2024. The effect of this amendment is to confirm the entitlement of persons to be enrolled without application on the voters' roll.
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Clause 38 amends section 266(2) of the of the Local Government Act 2020 to clarify that the requirement for persons enrolled on the voters' roll under Division 1 of Part 8 of the Act to vote in any election for the ward in which the person is enrolled also applies in respect of the elections held on the fourth Saturday in October 2024 for the Whittlesea City Council and Casey City Council and the subsequent elections held by those councils.
Clause 39 inserts new paragraph (ab) into section 285(4) of the Local Government Act 2020, to provide that the process for counting votes at a countback must include preferences indicated for a Councillor who was previously elected at the original election and for a Councillor elected at any subsequent countback.
Clause 40 is a statute law revision amendment to section 329(7), (8) and (9) of the Local Government Act 2020, which are savings and transitional provisions relating to the continued effect of some provisions of the Local Government Act 1989 despite their repeal. The provisions of the Local Government Act 1989 referred to in those subsections were repealed on 24 October 2020 on commencement of section 361 of the Local Government Act 2020. The amendment ensures that these subsections correctly refer to the commencement of section 361 (rather than section 362), as section 361 repealed the relevant provisions of the Local Government Act 1989. The amendments made by this clause are taken to have commenced on 24 October 2020 (see clause 2), so that the savings and transitional arrangements made by sections 329(7), (8) and (9) are appropriately preserved.
Clause 41 inserts a new transitional provision, section 330B, into the Local Government Act 2020.
New section 330B(1) provides that the expansion of the definition of confidential information in relation to an internal arbitration effected by the substitution of section 145 by clause 20 does not apply to an application made under section 143, or an internal arbitration process commenced, before the substitution of section 145.
New section 330B(2) provides that the immunity that applies to an arbiter for anything done or omitted to be done by the arbiter does not apply to anything done or omitted to be done by an arbiter before the commencement of new section 147A (as inserted by clause 25).
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Part 4—Amendment of Essential Services Commission Act 2001
Clause 42 amends the functions of the Essential Services Commission under section 10 of the Essential Services Commission Act 2001 so that they refer to the correct provisions of the Local Government Act 1989 where appropriate.
Subclause (1) amends section 10(ka) to provide that the Essential Services Commission will have functions under Part 8 of the Local Government Act 1989 relating to the Minister setting a maximum interest rate on unpaid rates or charges, in addition to its existing functions under Part 8A of that Act.
Subclause (2) repeals section 10(kb) of the Essential Services Commission Act 2001 which incorrectly provided that the Essential Services Commission had functions under section 268 of the Local Government Act 2020.
Part 5—Amendment of Accident Compensation Act 1985
Clause 43 amends section 82(2A)(d) of the Accident Compensation Act 1985 to replace a reference to section 154 of the Local Government Act 2020 with a reference to section 81B of the Local Government Act 1989. Section 82(2A)(d) was amended by item 2 of Schedule 1 to the Local Government Act 2020 on 24 October 2020. However, that amendment to change the reference to the Local Government Act 2020 was erroneous as the Accident Compensation Act 1985 does not apply to an injury to a worker that occurs on or after 1 July 2014.
The amendment made by this clause is taken to have commenced on 24 October 2020 (see clause 2) and provides that there is no entitlement to compensation in respect of a mental injury to a worker caused wholly or predominantly by an application under section 81B of the Local Government Act 1989 (as in force before its repeal) that alleges misconduct or serious misconduct by a Councillor.
Part 6—Amendment of Workplace Injury Rehabilitation and Compensation Act 2013
Clause 44 amends section 40(1)(d) of the Workplace Injury Rehabilitation and Compensation Act 2013 to provide that there is no entitlement to compensation in respect of a mental injury to a worker caused wholly or predominantly by an
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application for internal arbitration relating to alleged misconduct of a Councillor under section 143 of the Local Government Act 2020 or related proceedings. This amendment will ensure that section 40(1)(d) applies to applications for, and hearings regarding, alleged misconduct or serious misconduct by a Councillor.
Clause 45 inserts new section 624 into the Workplace Injury Rehabilitation and Compensation Act 2013. This amendment provides that the limitation on entitlement to compensation made by clause 44 only applies to a claim for compensation made on or after the commencement of that amendment.
Part 7—Amendment of Domestic Animals Act 1994
Clause 46 inserts a definition of Council land into section 3(1) of the Domestic Animals Act 1994.
Clause 47 inserts new paragraphs (fab) and (fac) into section 100(1) of the Domestic Animals Act 1994, to permit the Governor in Council to make regulations regarding—
• the reuniting of seized or found dogs and cats with their owners; and
• duties and obligations of Council authorised officers and Council contracted authorised officers in relation to deceased dogs and cats found on Council land (as defined in section 3(1)), including identifying and contacting the owners of those dogs and cats.
Part 8—Repeal of this Act
Clause 48 provides for automatic repeal of this Act on 20 June 2024. The repeal of this Act does not affect the continuing operation of the amendments made by this Act (see section 15(1) of the Interpretation of Legislation Act 1984).