Local Government Act 2009

An Act to provide a system of local government in Queensland, and for related purposes

1Short title

This Act may be cited as the Local Government Act 2009.

Editor’s note—

Uncommenced amendments to the following provisions have been included in this indicative reprint—

•amendment of sections 5, 15, 16, 17, 150C, 150D, 150L, 150P, 150R, 150AG, 150AR, 150AY, 162, 169, 234, 235, schedules 1, 4

•insertion of new sections 113A, 150CAA, 172–173, 204G

•replacement of chapter 2, part 2, heading.

See 2019 Act No. 30 pt 3 div 3 sdivs 1 (other than ss 134–136), 2 (other than ss 141, 142, 147, 151).

2Commencement

(1)Amendments 20 and 21 of the Local Government Act 1993 in schedule 1 commence on assent.

(2)The following provisions commence immediately before the repeal of the Local Government Act 1993 under section 289—

(a)section 284;

(b)the remaining amendments of the Local Government Act 1993 in schedule 1;

(c)schedule 2.

(3)Chapter 9, part 1 commences on 1 July 2009.

(4)The remaining provisions of the Act commence on a day to be fixed by proclamation.

3Purpose of this Act

The purpose of this Act is to provide for—

(a)the way in which a local government is constituted and the nature and extent of its responsibilities and powers; and

(b)a system of local government in Queensland that is accountable, effective, efficient and sustainable.

Note—

The system of local government consists of a number of local governments. See the Constitution of Queensland 2001, section 70 (System of local government).

4Local government principles underpin this Act

(1)To ensure the system of local government is accountable, effective, efficient and sustainable, Parliament requires—

(a)anyone who is performing a responsibility under this Act to do so in accordance with the local government principles; and

(b)any action that is taken under this Act to be taken in a way that—

(i)is consistent with the local government principles; and

(ii)provides results that are consistent with the local government principles, in as far as the results are within the control of the person who is taking the action.

(2)The local government principles are—

(a)transparent and effective processes, and decision-making in the public interest; and

(b)sustainable development and management of assets and infrastructure, and delivery of effective services; and

(c)democratic representation, social inclusion and meaningful community engagement; and

(d)good governance of, and by, local government; and

(e)ethical and legal behaviour of councillors and, local government employees and councillor advisors.

5Relationship with City of Brisbane Act 2010

Although the Brisbane City Council is a local government, the City of Brisbane Act 2010, rather than this Act, provides for—

(a)the way in which the Brisbane City Council is constituted and the nature and extent of its responsibilities and powers; and

(b)a system of local government in Brisbane; and.

(c)the way in which the conduct of councillors of the Brisbane City Council in meetings of the council and its committees is to be dealt with; and

(d)the way complaints about councillors of the Brisbane City Council are to be dealt with.

Note—

See the City of Brisbane Act 2010, section 5.

6Definitions

The dictionary in schedule 4 defines particular words used in this Act.

7What this part is about

This part explains—

(a)what a local government is; and

(b)what a local government area is; and

(c)the responsibilities and powers of a local government, its councillors and its employees.

8Local government’s responsibility for local government areas

(1)A local government is an elected body that is responsible for the good rule and local government of a part of Queensland.

Note—

This is provided for in the Constitution of Queensland 2001, section 71 (Requirements for a local government).

(2)A part of Queensland that is governed by a local government is called a local government area.

Note—

The Brisbane City Council is the local government for the City of Brisbane. For the local government area of the Brisbane City Council, see the City of Brisbane Act 2010, section 7.

(3)A local government area may be divided into areas called divisions.

(4)A regulation may—

(a)describe the boundaries of a local government area; or

(b)describe the boundaries of any divisions; or

(c)fix the number of councillors for a local government and any divisions of the local government area; or

(d)name a local government area; or

(e)classify a local government area as a city, town, shire or region.

9Powers of local governments generally

(1)A local government has the power to do anything that is necessary or convenient for the good rule and local government of its local government area.

Note—

Also, see section 262 (Powers in support of responsibilities) for more information about powers.

(2)However, a local government can only do something that the State can validly do.

(3)When exercising a power, a local government may take account of Aboriginal tradition and Island custom.

(4)A local government may exercise its powers—

(a)inside the local government area; or

(b)outside the local government area (including outside Queensland)—

(i)with the written approval of the Minister; or

(ii)as provided in section 10(5).

(5)When a local government is exercising a power in a place that is outside its local government area, the local government has the same jurisdiction in the place as if the place were inside its local government area.

(6)Subsections (7) and (8) apply if a local government is a component local government for a joint local government.

(7)Despite subsection (1), a local government may not, within the joint local government’s area, exercise a power for which the joint local government has jurisdiction.

(8)However, the local government may exercise the power as a delegate of the joint local government.

10Power includes power to conduct joint government activities

(1)A local government may exercise its powers by cooperating with 1 or more other local, State or Commonwealth governments to conduct a joint government activity.

(2)A joint government activity includes providing a service, or operating a facility, that involves the other governments.

(3)The cooperation with another government may take any form, including for example—

(a)entering into an agreement; or

(b)creating a joint local government entity, or joint government entity, to oversee the joint government activity.

(4)A joint government activity may be set up for more than 1 purpose.

Example—

Three local governments may create a joint local government entity to manage an aerodrome that services each of their local government areas, and may also enter into an agreement to sell water in bulk to 1 of the local governments.

(5)A local government may exercise a power in another government’s area for the purposes of a joint government activity, in the way agreed by the governments.

(6)However, if the power is to be exercised under a local law, the local law must expressly state that it applies to the other government’s area.

Note—

See section 29 for more information about making local laws.

11Local governments are bodies corporate etc.

A local government—

(a)is a body corporate with perpetual succession; and

(b)has a common seal; and

(c)may sue and be sued in its name.

12Responsibilities of councillors

(1)A councillor must represent the current and future interests of the residents of the local government area.

(2)All councillors of a local government have the same responsibilities, but the mayor has some extra responsibilities.

(3)All councillors have the following responsibilities—

(a)ensuring the local government—

(i)discharges its responsibilities under this Act; and

(ii)achieves its corporate plan; and

(iii)complies with all laws that apply to local governments;

(b)providing high quality leadership to the local government and the community;

(c)participating in council meetings, policy development, and decision-making, for the benefit of the local government area;

(d)being accountable to the community for the local government’s performance.

(4)The mayor has the following extra responsibilities—

(a)leading and managing meetings of the local government at which the mayor is the chairperson, including managing the conduct of the participants at the meetings;

(b)leading, managing, and providing strategic direction to, the chief executive officer in order to achieve the high quality administration of the local government;

(c)directing the chief executive officer of the local government under section 170;

(c)directing the chief executive officer in accordance with a resolution, or a document adopted by resolution, of the local government;

(d)conducting a performance appraisal of the chief executive officer, at least annually, in the way that is decided by the local government (including as a member of a committee, for example);

(e)ensuring that the local government promptly provides the Minister with the information about the local government area, or the local government, that is requested by the Minister;

(f)being a member of each standing committee of the local government;

(g)representing the local government at ceremonial or civic functions.

(5)A councillor who is not the mayor may perform the mayor’s extra responsibilities only if the mayor delegates the responsibility to the councillor.

(6)When performing a responsibility, a councillor must serve the overall public interest of the whole local government area.

13Responsibilities of local government employees

(1)All employees of a local government have the same responsibilities, but the chief executive officer has some extra responsibilities.

(2)All employees have the following responsibilities—

(a)implementing the policies and priorities of the local government in a way that promotes—

(i)the effective, efficient and economical management of public resources; and

(ii)excellence in service delivery; and

(iii)continual improvement;

(b)carrying out their duties in a way that ensures the local government—

(i)discharges its responsibilities under this Act; and

(ii)complies with all laws that apply to local governments; and

(iii)achieves its corporate plan;

(c)providing sound and impartial advice to the local government;

(d)carrying out their duties impartially and with integrity;

(e)ensuring the employee’s personal conduct does not reflect adversely on the reputation of the local government;

(f)improving all aspects of the employee’s work performance;

(g)observing all laws relating to their employment;

(h)observing the ethics principles under the Public Sector Ethics Act 1994, section 4;

(i)complying with a code of conduct under the Public Sector Ethics Act 1994.

(3)The chief executive officer has the following extra responsibilities—

(a)managing the local government in a way that promotes—

(i)the effective, efficient and economical management of public resources; and

(ii)excellence in service delivery; and

(iii)continual improvement;

(b)managing the other local government employees through management practices that—

(i)promote equal employment opportunities; and

(ii)are responsive to the local government’s policies and priorities;

(c)establishing and implementing goals and practices in accordance with the policies and priorities of the local government;

(d)establishing and implementing practices about access and equity to ensure that members of the community have access to—

(i)local government programs; and

(ii)appropriate avenues for reviewing local government decisions;

(e)the safe custody of—

(i)all records about the proceedings, accounts or transactions of the local government or its committees; and

(ii)all documents owned or held by the local government;

(f)complying with requests from councillors under section 170A—

(i)for advice to assist the councillor carry out his or her role as a councillor; or

(ii)for information, that the local government has access to, relating to the local government.

14What this part is about

(1)This part is about the number of electors that are to be in each division of a local government area, to ensure democratic representation.

(2)This part does not apply to an indigenous regional council.

15DivisionNumber of local government areascouncillors for divisions

(1)Each division of a local government area must have a reasonable proportion of electors for each councillor elected, or to be elected, for the division.

(2)A reasonable proportion of electors for a councillor of a division is the number of electors that is worked out by dividing the total number of electors in the local government area (as nearly as can be found out) by the total number of councillors (other than the mayor) currently elected, or to be elected, for the local government, plus or minus—

(a)for a local government area with more than 10,000 electors—10%; or

(b)for any other local government area—20%.

Examples—

1If the total number of electors in the local government area is 15,000, and the number of councillors (other than the mayor) is 5, the reasonable proportion of electors is 3,000 (i.e. 15,000 divided by 5) plus or minus 10%, i.e. between 2,700 and 3,300 electors.

2If the total number of electors in the local government area is 5,000, and the number of councillors (other than the mayor) is 5, the reasonable proportion of electors is 1,000 (i.e. 5,000 divided by 5) plus or minus 20%, i.e. between 800 and 1,200 electors.

(3)When changing the divisions of a local government area, the reasonable proportion of electors must be worked out as near as practicable to the time when the change is to happen.

(3)When changing a division, including changing the number of councillors elected, or to be elected, for the division, the reasonable proportion of electors for a councillor of a division must be worked out as near as practicable to the time when the change is to happen.

16Review of divisions of local government areasand councillors

A local government must, no later than 1 March in the year before the year of the quadrennial elections—

(a)review whether each division of its local government area has a reasonable proportion of electors for each councillor elected for the division; and

(a)review whether each of its divisions has a reasonable proportion of electors; and

(b)give the electoral commissioner and the Minister notice of the results of the review.

17What this part is about

(1)This part is about making a local government change.

(2)A local government change is a change of—

(a)the boundaries of a local government area; or

(b)any divisions of a local government area, other than the City of Brisbane; or

(c)the number of councillors for a local government or divisions of a local government area; or

(d)the name of a local government area; or

(e)the classification of a local government area (from a town to a city, for example).

(3)In summary, the process for making a local government change is as follows—

•assessment—the change commission assesses whether a proposed local government change is in the public interest

•implementation—the Governor in Council implements the local government change under a regulation.

(4)The change commission, which conducts the assessment phase of the process, is an independent body that is created under this Act.

Note—

See division 3 for the creation of the change commission.

18Who may start the change process

Only the Minister may propose a local government change to the change commission.

19Assessment

(1)The change commission is responsible for assessing whether a local government change proposed by the Minister is in the public interest.

(2)In doing so, the change commission must consider—

(a)whether the proposed local government change is consistent with a Local Government Act; and

(b)the views of the Minister about the proposed local government change; and

(c)any other matters prescribed under a regulation.

(3)The change commission may conduct its assessment in any way that it considers appropriate, including, for example, by—

(a)asking for submissions from any local government that would be affected by the proposed local government change; or

(b)holding a public hearing (in the way set out in chapter 7, part 1) to ask the public for its views about the proposed local government change.

(4)However, the Minister may direct the change commission in writing to conduct its assessment of the proposed local government change in a particular way.

(5)Despite subsection (3), the change commission must comply with the Minister’s direction.

(6)The change commission must let the public know the results of its assessment and the reasons for the results, by publishing notice of the results—

(a)in a newspaper that is circulating generally in the local government area; and

(b)in the gazette; and

(c)on the electoral commission’s website.

(7)The change commission must also give the results of its assessment to the Minister.

(8)The change commission may recommend that the Governor in Council implement the change commission’s assessment.

20Implementation

(1)The Governor in Council may implement the change commission’s recommendation under a regulation.

(2)The regulation may provide for anything that is necessary or convenient to facilitate the implementation of the local government change.

(3)For example, the regulation may provide for—

(a)holding, postponing or cancelling a local government election; or

(b)the transfer of assets and liabilities from a local government to another local government.

(4)A local government is not liable to pay a State tax in relation to a transfer or other arrangement made to implement a local government change.

(5)A State tax is a tax, charge, fee or levy imposed under an Act, other than a duty under the Duties Act 2001.

21Decisions under this division are not subject to appeal

A decision of the change commission under this division is not subject to appeal.

Note—

See section 244 for more information.

22Change commission is established

(1)The Local Government Change Commission (the change commission) is established.

(2)The change commission is made up of—

(a)the electoral commissioner; or

(b)any combination of the following persons that the electoral commissioner nominates—

(i)the electoral commissioner;

(ii)the deputy electoral commissioner;

(iii)a casual commissioner.

23Casual commissioners

(1)The Governor in Council may appoint the number of casual commissioners that the Governor in Council considers appropriate.

(2)The Governor in Council must appoint a qualified person to be a casual commissioner.

(3)A person is qualified to be a casual commissioner if the person—

(a)has—

(i)extensive knowledge of and experience in local government, public administration, law, public finance or community affairs; or

(ii)other qualifications and experience that the Governor in Council considers appropriate; but

(b)is not—

(i)a member of an Australian Parliament; or

(ii)a nominee for election as a member of an Australian Parliament; or

(iii)a councillor; or

(iv)a nominee for election as a councillor; or

(v)a person who has accepted an appointment as a councillor; or

(vi)a member of a political party; or

(vii)a person who has a conviction for an indictable offence that is not an expired conviction.

(4)A casual commissioner may be appointed for a term of not longer than 3 years.

(5)A casual commissioner holds office on the conditions (including about fees and allowances, for example) that the Governor in Council decides.

(6)A casual commissioner may resign by a signed notice of resignation given to the Minister.

24Conflict of interests

(1)This section applies if—

(a)a person on the change commission has a direct or indirect financial interest in a matter being considered, or about to be considered, by the change commission; and

(b)the interest could conflict with the proper performance of the person’s responsibilities for the matter.

(2)The person must not take part, or take any further part, in the consideration of the matter.

Maximum penalty—35 penalty units.

(3)As soon as practicable after the person becomes aware that this section applies to the matter, the person must—

(a)if the person is the electoral commissioner—direct the deputy electoral commissioner to constitute the change commission in the electoral commissioner’s place; or

(b)otherwise—inform the electoral commissioner.

Maximum penalty—35 penalty units.

(4)If subsection (3)(b) applies, the electoral commissioner must take the person’s place.

25Annual report of change commission

(1)The electoral commissioner must prepare a report about the change commission’s operations during each financial year.

(2)The report must include details of the following directions given to the change commission by the Minister during the financial year for which the report is prepared—

(a)a direction given under section 19(4);

(b)a direction given under the City of Brisbane Act 2010, section 21(4).

(3)The electoral commissioner must give a copy of the report to the Minister, before the end of the first October after the financial year.

(4)The electoral commissioner must include the report in the annual report of the electoral commission (that is prepared under the Electoral Act, section 18).

(5)The electoral commissioner must ensure that the public can inspect copies of the report—

(a)at the electoral commission’s office in Brisbane; and

(b)on the electoral commission’s website.

25AWhat this chapter is about

(1)This chapter explains what a joint local government is and its responsibilities and powers.

Note—

For other flexible forms of cooperation between local governments, see section 10.

(2)A joint local government is an entity that, within a joint local government area, takes over particular responsibilities from its component local governments.

(3)A joint local government area is a part of the State that consists of the whole or parts of 2 or more local government areas of component local governments.

(4)A component local government is a local government entitled to be represented on a joint local government, either in its own right or as a member of a group of local governments.

(5)In this chapter local government includes the Brisbane City Council.

25BConstitution of joint local governments

(1)Before establishing a joint local government, the proposed component local governments must reach agreement about the constitution of the joint local government.

(2)The constitution of a joint local government is a document setting out the following—

(a)the name of the joint local government;

(b)the responsibilities to be transferred to the joint local government from its component local governments;

(c)the boundaries of the joint local government area;

(d)the number of members of the joint local government to which each component local government is entitled;

(e)the process for appointing members;

(f)the proportion of the cost of the operations of the joint local government that must be contributed by each of its component local governments;

(g)the recovery of the cost of the operations of the joint local government;

(h)another matter—

(i)for which it is necessary or convenient to provide for the joint local government’s establishment or operation; but

(ii)for which this Act does not make provision or adequate provision.

(3)The boundaries of a joint local government area may not be beyond the boundaries of its component local governments.

(4)Only a councillor of a component local government may be a member of a joint local government.

(5)The members of a joint local government are not entitled to any additional remuneration or allowances for being members of the joint local government.

25CEstablishment of joint local governments

(1)A joint local government is established for an area if 2 or more local governments approve, by resolution, the constitution for the joint local government.

(2)Two or more joint local governments may be established for the same joint local government area, or part of a joint local government area, if the joint local governments are to have different functions.

(3)Each component local government must ensure the public may inspect or purchase a copy of an approved constitution for the joint local government at the component local government’s public office.

25DJoint local governments are bodies corporate etc.

A joint local government—

(a)is a body corporate with perpetual succession; and

(b)has a common seal; and

(c)may sue and be sued in its name.

25EPowers of joint local governments generally

(1)A joint local government has the same powers as a local government to do anything that is necessary or convenient for performing its responsibilities.

Notes—

1For the powers of a local government, see sections 9 and 262.

2A joint local government only has the responsibilities given to it by its component local governments under its constitution. See section 25B(2).

(2)In exercising a power under subsection (1), a joint local government has the same limitations and obligations that its component local governments would have under this or another Act in exercising the power.

Example—

If a component local government must comply with particular requirements before exercising a power under an Act, a joint local government must also comply with the requirements before exercising the same power.

(3)For the purpose of subsections (1) and (2), a reference to a local government in this or another Act is taken to include a reference to a joint local government.

(4)A joint local government may exercise its powers in its own name.

25FRestriction on power to make or levy rates and charges

(1)A joint local government can not make or levy any rates or charges on land.

(2)A component local government of a joint local government may make or levy rates and charges on land for a matter within its jurisdiction, even though—

(a)the land is within the joint local government’s area; and

(b)the purpose for the rates or charges relates to a matter within the joint local government’s jurisdiction.

25GLimitation on powers of a component local government

(1)A component local government may not, within a joint local government area, exercise a power for which the joint local government has jurisdiction.

(2)However, the component local government may exercise the power as a delegate of the joint local government.

25HChairperson and deputy chairperson

A joint local government must appoint a chairperson and deputy chairperson from its members, by resolution, at—

(a)the first meeting of the joint local government; and

(b)at its first meeting after each quadrennial election after the meeting mentioned in paragraph (a).

25IDisbursement from operating fund of joint local government for purposes other than exclusive jurisdiction

(1)A joint local government may make a disbursement from its operating fund for any purpose that—

(a)is not within the exclusive jurisdiction of the joint local government; but

(b)is within the jurisdiction of its component local governments.

(2)However, the disbursement may be made only if—

(a)the joint local government has, by resolution, decided the amount of the disbursement is not required for exercising its exclusive jurisdiction; and

(b)the component local governments approve the purpose for which the disbursement is to be made.

(3)The approval may be given for the purpose for disbursements in more than 1 financial year.

(4)A disbursement under this section may be made—

(a)to a component local government or another entity; or

(b)directly by the joint local government.

25JWinding up joint local governments

(1)A joint local government may, by resolution, decide to wind up the joint local government.

(2)If a joint local government acts under subsection (1), the joint local government must cease to carry out activities except so far as is required for winding up the joint local government.

26What this part is about

(1)This part is about local laws.

(2)A local law is a law made by a local government.

(3)Unless there is a contrary intention, a reference in this Act to a local law includes a reference to—

(a)an interim local law; and

(b)a subordinate local law; and

(c)a local law that incorporates a model local law.

(4)An interim local law is a local law that has effect for 6 months or less.

(5)A subordinate local law is a local law that—

(a)is made under a power contained in a local law; and

(b)provides for the detailed implementation of the broader principles contained in the local law.

(6)A subordinate local law is called that because it is subordinate to the local law under which it is made, so that if there is any inconsistency between the subordinate local law and the local law, the local law prevails to the extent of the inconsistency.

(7)The Minister may approve, by gazette notice, a local law as being suitable for incorporation by all local governments into their local laws.

(8)This type of local law is a model local law.

27Interaction with State laws

If there is any inconsistency between a local law and a law made by the State, the law made by the State prevails to the extent of the inconsistency.

28Power to make a local law

(1)A local government may make and enforce any local law that is necessary or convenient for the good rule and local government of its local government area.

(2)However, a local government must not make a local law—

(a)that sets a penalty of more than 850 penalty units for each conviction of failing to comply with a local law, including each conviction when there is more than 1 conviction for a continuing offence or repeat offence; or

(b)that purports to stop a local law being amended or repealed in the future; or

(c)about a subject that is prohibited under division 3.

29Local law making process

(1)A local government may decide its own process for making a local law to the extent that the process is not inconsistent with this part.

(2)A local government makes a local law by passing a resolution to make the local law.

(3)If a local government proposes to make a local law about a matter (the new local law) and there is an existing local law about the same matter that would be inconsistent with the new local law, the local government must amend or repeal the existing local law so that there is no inconsistency.

Note—

The new local law may include the amendment or repeal of the inconsistent law in the same instrument.

(4)An interim local law must include a provision stating when the law expires.

(5)A local government must ensure its local laws are drafted in compliance with the guidelines issued by the Parliamentary Counsel under the Legislative Standards Act 1992, section 9 for local laws and subordinate local laws.

(6)To remove any doubt, it is declared that a local government does not have to carry out any public consultation before making either of the following—

(a)an interim local law;

(b)a local law that only incorporates a model local law and does not contain an anti-competitive provision.

29AState interest check

(1)This section applies if a local government proposes to make a local law other than the following—

(a)a local law that incorporates a model local law;

(b)a subordinate local law.

(2)However, this section also applies to a local law that incorporates a model local law if the local law includes more than—

(a)the model local law; or

(b)any amendment or repeal of an existing local law that would be inconsistent with the model local law.

(3)A local government must consult with relevant government entities about the overall State interest in the proposed local law before making the local law.

29BPublication of local laws

(1)A local government must let the public know that a local law has been made by the local government, by publishing a notice of making the local law—

(a)in the gazette; and

(b)on the local government’s website.

(2)The notice must be published within 1 month after the day when the local government made the resolution to make the local law.

(3)The notice in the gazette must state—

(a)the name of the local government; and

(b)the date when the local government made the resolution to make the local law; and

(c)the name of the local law; and

(d)the name of any existing local law that was amended or repealed by the new local law.

(4)The notice on the local government’s website must state—

(a)the name of the local government; and

(b)the date when the local government made the resolution to make the local law; and

(c)the name of the local law; and

(d)the name of any existing local law that was amended or repealed by the new local law; and

(e)if the local law incorporates a model local law—that fact; and

(f)if the local law is an interim local law—that fact, and the date on which the interim local law expires; and

(g)if the local law is a subordinate local law—the name of the local law that authorises the subordinate local law to be made; and

(h)the purpose and general effect of the local law; and

(i)if the local law contains an anti-competitive provision—that fact; and

(j)that a copy of the local law may be—

(i)inspected and purchased at the local government’s public office; and

(ii)viewed by the public on the department’s website.

(5)As soon as practicable after the notice is published in the gazette, the local government must ensure a copy of the local law may be inspected and purchased by the public at the local government’s public office.

(6)A copy of a local law must cost no more than the cost to the local government of making the copy available for purchase.

(7)Within 14 days after the notice is published in the gazette, the local government must give the Minister—

(a)a copy of the notice; and

(b)a copy of the local law in electronic form.

30Expiry of interim local law revives previous law

(1)This section applies if—

(a)an interim local law amends or repeals a local law; and

(b)the interim local law expires; and

(c)the interim local law is not made (either with or without change) as a local law.

(2)When the interim local law expires—

(a)the local law is revived in its previous form; and

(b)any subordinate local law or provision of a subordinate local law, that stopped having effect because the local law was amended or repealed, is revived in its previous form.

(3)The previous form of a local law, subordinate local law, or provision of a subordinate local law is the form it was in immediately before the interim local law commenced.

(4)This section does not affect anything that was done or suffered under the interim local law before it expired.

(5)This section applies despite the Acts Interpretation Act 1954, section 19.

31Local law register

(1)A local government must keep a register of its local laws, in the way that is required under a regulation.

(2)The public may inspect the register at the local government’s public office.

(3)The department’s chief executive must keep a database of all local governments’ local laws and ensure a copy of the database may be viewed by the public on its website.

32Consolidated versions of local laws

(1)A local government may prepare and adopt a consolidated version of a local law.

(2)A consolidated version of a local law is a document that accurately combines a local government’s local law, as it was originally made, with all the amendments made to the local law since the local law was originally made.

(3)When the local government adopts the consolidated version of the local law, the consolidated version is taken to be the local law, in the absence of evidence to the contrary.

(4)Within 7 days after the local government adopts the consolidated version of the local law, the local government must give a copy of the consolidated version to the Minister.

34What this division is about

This division specifies the subjects that a local government must not make a local law about.

35Network connections

(1)A local government must not make a local law that regulates network connections.

(2)A network connection is an installation that has the sole purpose of connecting a home or other structure to an existing telecommunications network.

(3)A local law, to the extent that it is contrary to this section, has no effect.

36Election advertising

(1)A local government must not make a local law that—

(a)prohibits or regulates the distribution of how-to-vote cards; or

(b)prohibits the placement of election signs or posters.

(2)A how-to-vote card includes a how-to-vote card under the Electoral Act.

(3)An election sign or poster is a sign or poster that is able, or is intended, to—

(a)influence a person about voting at any government election; or

(b)affect the result of any government election.

(4)A government election is an election for a local, State or Commonwealth government.

(5)A local law, to the extent that it is contrary to this section, has no effect.

37Development processes

(1)A local government must not make a local law that establishes an alternative development process.

(2)An alternative development process is a process that is similar to or duplicates all or part of the development assessment process under the Planning Act.

(3)However, if a local law already contains a provision that establishes an alternative development process, the council may amend or repeal the provision at any time.

(4)A local law has no effect to the extent that it is contrary to this section.

(5)This section does not apply to a local government’s local law about any of the following matters unless the matter is covered by the local government’s planning scheme, the Planning Act or another instrument made under that Act—

(a)advertising devices;

(b)gates and grids;

(c)roadside dining.

38Anti-competitive provisions

(1)A local government must not make a local law that contains an anti-competitive provision unless the local government has complied with the procedures prescribed under a regulation for the review of anti-competitive provisions.

(2)A local law, to the extent that it is contrary to this section, has no effect.

(3)This section does not apply to an interim local law.

38AASwimming pool safety

(1)A local government must not make a local law that regulates—

(a)the construction or maintenance of barriers for a regulated pool; or

(b)a matter for ensuring the safety of persons using a regulated pool and prescribed under the Building Act, section 231D(1), definition pool safety standard, paragraph (b).

(2)If a local law that is in force before the commencement of this section contains a provision that regulates a matter mentioned in subsection (1), the local government—

(a)must not amend the provision after the commencement; and

(b)must repeal the provision by 1 January 2017.

(3)A local law, to the extent that it is contrary to this section, has no effect.

(4)In this section—

barriers, for a regulated pool, includes any of the following—

(a)the fencing for the pool;

(b)the walls of a building enclosing the pool;

(c)another form of barrier mentioned or provided for in the pool safety standard under the Building Act.

38ABSuspending or revoking particular local laws

(1)This section applies if the Minister reasonably believes a local law—

(a)is contrary to any other law; or

(b)is inconsistent with the local government principles; or

(c)does not satisfactorily deal with the overall State interest.

(2)The Minister, by gazette notice, may—

(a)suspend the local law, for a stated period or indefinitely; or

(b)revoke the local law.

(3)The gazette notice must state—

(a)how the local law is contrary to another law, is inconsistent with the local government principles or does not satisfactorily deal with the overall State interest; and

(b)if the local law has been suspended—how the local law may be amended so that it—

(i)is no longer contrary to the other law; or

(ii)is no longer inconsistent with the local government principles; or

(iii)satisfactorily deals with the overall State interest.

(4)If the Minister suspends a local law, the local law stops having effect for the period stated in the gazette notice.

(5)If the Minister revokes the local law—

(a)the local law stops having effect on the day stated in the gazette notice; or

(b)if no day is stated in the gazette notice—the local law is taken to never have had effect.

(6)The State is not liable for any loss or expense incurred by a person because a local law is suspended or revoked under this section.

(7)A decision of the Minister under this section is not subject to appeal.

Note—

See section 244 for more information.

38ALocal law about seizing and disposing of personal property

(1)This section applies if—

(a)a local government has made a local law about seizing and disposing of personal property; and

(b)personal property is seized under the local law.

(2)If the personal property is sold or disposed of, the proceeds of sale or disposal must be applied in the following order—

(a)in payment of the reasonable expenses incurred in selling or disposing of the property;

(b)in payment of the prescribed fee for seizing and holding the property;

(c)if there is an amount owing to an entity under a security interest registered for the property under the Personal Property Securities Act 2009 (Cwlth)—in payment of the amount owing under the security interest;

(d)the balance to the owner of the property.

(3)A secured party can not enforce any security interest in the proceeds of sale or disposal against an entity to whom an amount is payable under subsection (2)(a) or (b).

(4)In this section—

personal property has the meaning given by the Personal Property Securities Act 2009 (Cwlth), section 10.

secured party has the meaning given by the Personal Property Securities Act 2009 (Cwlth), section 10.

38BOwners’ liability for party houses

(1)A local government may make a local law that makes the owner of a residential property liable to a penalty because of excessive noise regularly emitted from the property.

(2)The owner of a residential property includes a tenant if the tenant has a right of exclusive occupation of the property under a lease.

(3)A residential property is a property of a type that would ordinarily be used, or is intended to be used, as a place of residence or mainly as a place of residence.

(4)To remove any doubt, it is declared that—

(a)the local law may fix the number of times that excessive noise must be emitted from a property before the owner becomes liable to the penalty; and

(b)a property is not precluded from being a residential property merely because the property is rented on a short-term basis.

(5)In a proceeding about a contravention of the local law—

(a)a noise abatement direction given to a person at a property is evidence of excessive noise being emitted from the property; and

(b)a copy of information recorded in the register of enforcement acts under the Police Powers and Responsibilities Act 2000 about the giving of a noise abatement direction is evidence of the matters stated in it.

(6)A noise abatement direction is a direction given to a person by a police officer under the Police Powers and Responsibilities Act 2000, section 581(3).

(7)Despite subsection (5), a defendant may, with the leave of the court, require the prosecution to call any person involved in the giving of the noise abatement direction to give evidence at the hearing.

(8)The court may give leave only if the court is satisfied that—

(a)an irregularity may exist in relation to the information or the giving of the noise abatement direction; or

(b)it is in the interests of justice that the person be called to give evidence.

(9)The chief executive officer may ask the police commissioner to give the chief executive officer information about noise abatement directions given to persons in the local government area.

(10)The police commissioner must comply with the request.

39What this division is about

(1)This division is about beneficial enterprises that are conducted by a local government.

(2)This division does not apply to a business unit of a local government.

(3)A beneficial enterprise is an enterprise that a local government considers is directed to benefiting, and can reasonably be expected to benefit, the whole or part of its local government area.

(4)A local government is conducting a beneficial enterprise if the local government is engaging in, or helping, the beneficial enterprise.

40Conducting beneficial enterprises

(1)A local government may conduct a beneficial enterprise.

(2)To conduct the beneficial enterprise, the local government—

(a)may participate with an association, other than by being an unlimited partner of a partnership; and

(b)must not, either directly or by participating with an association, participate with an unlimited corporation; and

(c)must not enter into an agreement that does not limit the liability of the local government, as between the parties to the agreement, to the amount committed by the local government under the agreement.

Note—

Under the Statutory Bodies Financial Arrangements Act 1982, a local government may need the Treasurer’s approval before entering into particular financial arrangements.

(3)An association is—

(a)a partnership; or

(b)a corporation limited by shares but not listed on a stock exchange; or

(c)a corporation limited by guarantee but not listed on a stock exchange; or

(d)another association of persons that is not a corporation.

(4)An unlimited corporation means a corporation whose members have no limit placed on their liability.

(5)A local government participates with an association or unlimited corporation if the local government—

(a)forms, or takes part in forming, an association or unlimited corporation; or

(b)becomes a member of an association or unlimited corporation; or

(c)takes part in the management of an association or unlimited corporation; or

(d)acquires or disposes of shares, debentures or securities of an association or unlimited corporation.

41Identifying beneficial enterprises

A local government’s annual report for each financial year must contain a list of all the beneficial enterprises that the local government conducted during the financial year.

43What this division is about

(1)This division is about the application of the National Competition Policy Agreements in relation to the significant business activities of a local government.

(2)This includes the application of the competitive neutrality principle if, in the circumstances, the public benefit (in terms of service quality and cost) outweighs the costs of implementation.

(3)Under the competitive neutrality principle, an entity that is conducting a business activity in competition with the private sector should not enjoy a net advantage over competitors only because the entity is in the public sector.

(4)A significant business activity is a business activity of a local government that—

(a)is conducted in competition, or potential competition, with the private sector (including off-street parking, quarries, sporting facilities, for example); and

(b)meets the threshold prescribed under a regulation.

(5)However, a significant business activity does not include a business activity that is—

(a)a building certifying activity; or

(b)a roads activity; or

(c)related to the provision of library services.

Note—

A building certifying activity or roads activity is dealt with under section 47.

44Ways to apply the competitive neutrality principle

(1)The competitive neutrality principle may be applied by—

(a)commercialisation of a significant business activity; or

(b)full cost pricing of a significant business activity.

(2)Commercialisation involves creating a new business unit, that is part of the local government, to conduct the significant business activity on a commercial basis.

(3)Full cost pricing involves pricing the significant business activity on a commercial basis, but without creating a new business unit.

(4)A regulation may provide for—

(a)matters relating to commercialisation or full cost pricing; or

(b)any other matter relating to the application of the competitive neutrality principle to the significant business activities of a local government.

45Identifying significant business activities

A local government’s annual report for each financial year must—

(a)contain a list of all the business activities that the local government conducted during the financial year; and

(b)identify the business activities that are significant business activities; and

(c)state whether or not the competitive neutrality principle was applied to the significant business activities, and if the principle was not applied, the reason why it was not applied; and

(d)state whether any of the significant business activities were not conducted in the preceding financial year, i.e. whether there are any new significant business activities.

46Assessing public benefit

(1)This section applies to a new significant business activity that is identified in the annual report of a local government.

(2)The local government must conduct a public benefit assessment of the new significant business activity.

(3)A public benefit assessment is an assessment of whether the benefit to the public (in terms of service quality and cost) of applying the competitive neutrality principle in relation to a significant business activity outweighs the costs of applying the competitive neutrality principle.

(4)The local government must conduct the public benefit assessment before the end of the financial year in which the significant business activity is first identified in the annual report.

(5)The local government must prepare a report on the public benefit assessment that contains its recommendations about the application of the competitive neutrality principle in relation to the significant business activity.

(6)At a meeting of the local government, the local government must—

(a)consider the report; and

(b)decide, by resolution, whether or not to apply the competitive neutrality principle in relation to the significant business activity.

(7)Any resolution that the competitive neutrality principle should not be applied must include a statement of the reasons why it should not be applied.

(8)The local government must give the Minister a copy of—

(a)the report; and

(b)all resolutions made in relation to the report.

(9)If the local government decides not to apply the competitive neutrality principle in relation to the significant business activity, the local government must, within 3 years after making the decision, repeat the process in this section.

(10)Subsection (9) also applies to a decision that was made before the commencement of this section.

47Code of competitive conduct

(1)This section is about the code of competitive conduct.

(2)The code of competitive conduct is the code of competitive conduct prescribed under a regulation.

(3)A local government must apply the code of competitive conduct to the conduct of the following business activities of the local government—

(a)a building certifying activity;

(b)a roads activity, other than a roads activity for which business is conducted only through a sole supplier arrangement.

(4)A building certifying activity is a business activity that—

(a)involves performing building certifying functions (within the meaning of the Building Act, section 10); and

(b)is prescribed under a regulation.

(5)A roads activity is a business activity (other than a business activity prescribed under a regulation) that involves—

(a)constructing or maintaining a State-controlled road, that the State put out to competitive tender; or

(b)submitting a competitive tender in relation to—

(i)constructing or maintaining a road in the local government area, that the local government put out to competitive tender; or

(ii)constructing or maintaining a road in another local government area, that the other local government put out to competitive tender.

(6)The local government must start to apply the code of competitive conduct—

(a)for a building certifying activity—from the start of the financial year after the financial year in which the building certifying activity is first conducted; or

(b)for a roads activity—from when the roads activity is first conducted.

(7)A local government must decide each financial year, by resolution, whether or not to apply the code of competitive conduct to a business activity prescribed under a regulation.

(8)If the local government decides not to apply the code of competitive conduct to the business activity, the resolution must state reasons for not doing so.

(9)Subsection (7) does not prevent the local government from applying the code of competitive conduct to any other business activities.

48Competitive neutrality complaints

(1)A local government must adopt a process for resolving competitive neutrality complaints.

(2)A competitive neutrality complaint is a complaint that—

(a)relates to the failure of a local government to conduct a business activity in accordance with the competitive neutrality principle; and

(b)is made by an affected person.

(3)An affected person is—

(a)a person who—

(i)competes with the local government in relation to the business activity; and

(ii)claims to be adversely affected by a competitive advantage that the person alleges is enjoyed by the local government; or

(b)a person who—

(i)wants to compete with the local government in relation to the business activity; and

(ii)claims to be hindered from doing so by a competitive advantage that the person alleges is enjoyed by the local government.

(4)A regulation may provide for the process for resolving competitive neutrality complaints.

(5)A local government does not have to resolve a competitive neutrality complaint relating to a business activity prescribed under a regulation.

59What this division is about

(1)This division is about roads.

(2)A road is—

(a)an area of land that is dedicated to public use as a road; or

(b)an area of land that—

(i)is developed for, or has as 1 of its main uses, the driving or riding of motor vehicles; and

(ii)is open to, or used by, the public; or

(c)a footpath or bicycle path; or

(d)a bridge, culvert, ford, tunnel or viaduct.

(3)However, a road does not include—

(a)a State-controlled road; or

(b)a public thoroughfare easement.

60Control of roads

(1)A local government has control of all roads in its local government area.

(2)This control includes being able to—

(a)survey and resurvey roads; and

(b)construct, maintain and improve roads; and

(c)approve the naming and numbering of private roads; and

(d)name and number other roads; and

(e)make a local law to regulate the use of roads, including—

(i)the movement of traffic on roads, subject to the Transport Operations (Road Use Management) Act 1995; and

(ii)the parking of vehicles on roads, subject to the Transport Operations (Road Use Management) Act 1995 (including the maximum time that a vehicle may be parked in a designated rest area that adjoins a road, for example); and

(iii)by imposing obligations on the owner of land that adjoins a road (including an obligation to fence the land to prevent animals going on the road, for example); and

(f)make a local law to regulate the construction, maintenance and use of—

(i)public utilities along, in, over or under roads; and

(ii)ancillary works and encroachments along, in, over or under roads; and

(g)realign a road in order to widen the road; and

(h)acquire land for use as a road.

(3)Nothing in subsection (1) makes a local government liable for the construction, maintenance or improvement of a private road.

(4)A private road is a road over land that is owned by a person who may lawfully exclude other persons from using the road.

61Notice of intention to acquire land to widen a road

(1)If a local government wants to acquire land in order to widen a road, the local government must give the owner of the land a notice of intention to acquire land.

(2)A notice of intention to acquire land informs the owner in general terms of this section and section 62.

(3)However, a local government can not, without the consent of the Planning and Environment Court, serve notice of intention to acquire land on an owner of land after the owner has applied to the local government—

(a)for approval to subdivide the land; or

(b)for approval, consent or permission—

(i)to erect or use a structure on the land; or

(ii)to use the land for any other purpose.

(4)The court may consent to the notice of intention to acquire land being served only if the court is satisfied that the purpose of the notice is to enable the local government to make, in good faith, a reasonable widening of the road.

(5)After a local government gives an owner a notice of intention to acquire land, the owner must not erect, place, re-erect, replace or repair any structure, or part of a structure, on the land without the local government’s permission.

(6)The local government must lodge a copy of a notice of intention to acquire land with the registrar of titles for registration on the instrument of title to the land.

(7)The registrar of titles may register the notice of intention to acquire land even if the instrument of title is not produced.

62Compensation for a notice of intention to acquire land

(1)This section applies to a person who is served with a notice of intention to acquire land, if the person would be entitled to claim compensation for the acquisition of land.

(2)The person is entitled to compensation from the local government for injurious affection to the person’s interest in the land because of the notice of intention to acquire land.

(3)However, the compensation is not payable until—

(a)the land is sold for the first time after the notice of intention to acquire land was served; or

(b)after being served with the notice of intention to acquire land, the owner of the land offers the land for sale in good faith, but can not sell the land for a fair and reasonable price.

(4)The compensation must be assessed in accordance with the following principles—

(a)the amount of compensation must represent the difference between—

(i)the market value of the interest in the land immediately after service of the notice of intention to acquire land; and

(ii)what would be the market value of the interest in the land, at that time, if the notice had not been served;

(b)any benefit that may accrue, because of the realignment of the road, to land adjacent to the land that is affected by the realignment of the road, and in which the claimant has an interest, must be taken into account;

(c)the amount of compensation must not be increased because the land that is affected by the realignment of the road has, since the service of the notice of intention to acquire land, become or ceased to be separate from other land.

(5)A claim for compensation must be made—

(a)within 3 years after the entitlement to compensation arose; and

(b)to the chief executive officer in the approved form.

(6)The claim is taken to have been properly made when the claimant has given the local government all the information that the local government reasonably requires to decide the claim.

(7)If, within 30 days after the claim is made, the local government has not given the claimant notice of its decision on the claim, the local government is taken to have refused compensation on the 31st day after the claim is made.

63Appeal on a claim for compensation

(1)A person who is aggrieved by the decision of a local government on a claim for compensation may appeal against the decision to the Land Court.

(2)The appeal must be started within 30 days after—

(a)notice of the decision is given to the claimant; or

(b)the decision is taken to have been made.

(3)However, the Land Court may extend the period if satisfied in all the circumstances that it is reasonable to do so.

(4)In order to award compensation, the Land Court must be satisfied—

(a)if the land has been sold—

(i)the seller took reasonable steps to obtain a reasonable price for the land; and

(ii)the seller sold the land in good faith; and

(iii)the sale price is less than the seller might reasonably have expected to receive had there been no notice of intention to acquire land; or

(b)if a local government refused the owner permission to erect, place, re-erect, replace or repair any structure, or part of a structure, on the land—the permission was applied for in good faith.

64Acquisition of land instead of compensation

(1)After a notice of intention to acquire land is served, but before the land is sold, the local government may acquire the land instead of paying compensation for injurious affection.

(2)If, after a notice of intention to acquire land is served, the land is cleared of all structures—

(a)the local government may acquire the land; and

(b)if required by the owner of the land, the local government must acquire the land.

(3)The acquired land must be dedicated for public use as a road within 3 months after its acquisition.

(4)Compensation for the acquisition of the land, if not agreed between the parties, must be assessed as at the date of the acquisition.

65What is to happen if a realignment is not carried out

(1)This section applies if a local government decides not to proceed with the realignment of a road or part of a road after giving a notice of intention to acquire land.

(2)This section does not apply to a realignment of road that is necessary to comply with the requirements of a local government under a planning scheme in its application to particular developments in the local government area.

(3)The local government must serve notice of its decision not to proceed on all owners of land who were served with a notice of intention to acquire land in connection with that road or part of that road.

(4)With regard to any of the notices of intention to acquire land that were lodged with the registrar of titles in connection with that road or part of that road, the local government must—

(a)for any notice of intention to acquire land that has not been registered—withdraw the notice of intention to acquire land; and

(b)for any notice of intention to acquire land that has been registered—lodge with the registrar of titles for registration a notice of its decision not to proceed with the realignment of the road, or part of the road.

(5)The notice of the local government’s decision must inform the owners in general terms of this section and section 66.

66Compensation if realignment not carried out

(1)This section applies if—

(a)a local government decides not to proceed with the realignment of a road or part of a road after giving a notice of intention to acquire land; and

(b)structural improvements have been made on land that adjoins the road on the basis of the proposed realignment being effected.

(2)The local government must pay the owner of the land reasonable compensation for the decrease in value of the land because of the decision.

(3)The amount of compensation is the difference between the value of the land before and after the decision.

(4)If the local government and the owner fail to agree on the amount of compensation, the amount is to be decided by the Land Court.

(5)The provisions of the Acquisition of Land Act 1967 about the making, hearing and deciding of claims for compensation for land taken under that Act apply, with any necessary changes and any changes prescribed under a regulation, to claims for compensation under this section.

(6)The local government’s decision not to proceed with the realignment of a road, or part of a road, does not give rise to an entitlement to compensation to, or a cause of action by, any owner or occupier of land or other person other than under this section.

67Acquiring land for use as a footpath

(1)A local government may acquire land that adjoins a road for use as a footpath.

(2)The acquisition of land may be subject to a reservation, in favour of the owner of the land, of any of the following rights that the local government decides (at or before the acquisition) is appropriate—

(a)a right to the ownership, possession, occupation and use of any existing structure, room or cellar—

(i)at a specified height above the level of the new footpath; or

(ii)at a specified depth below the level of the new footpath;

(b)a right—

(i)to erect a structure (in accordance with law) at a specified height above the new footpath; and

(ii)to the ownership, possession, occupation and use of the structure;

(c)a right of support for a structure mentioned in paragraph (a) or (b).

(3)The right mentioned in subsection (2)(a) is subject to the local government’s right to enter, and make structural alterations to, the structure, room or cellar that the local government considers necessary.

68Notice to local government of opening or closing of roads

(1)This section applies if an application is made under the Land Act for the opening or closing of a road in a local government area by someone other than the local government.

(2)The Land Act Minister, or the applicant for the application, must give notice of the application to the local government.

(3)The Land Act Minister is the Minister administering the Land Act.

(4)The notice must specify a date (no earlier than 1 month or later than 2 months after the local government is given the notice) on or before which the local government may object to the opening or closing of the road.

(5)An objection must fully state the reasons for the objection.

(6)The Land Act Minister must have regard to any objections properly made by the local government.

(7)If the Land Act Minister decides the road should be opened or closed, the Land Act Minister must give notice to the local government—

(a)of the decision; and

(b)if the decision is contrary to the local government’s objection, the reasons for the decision.

69Closing roads

(1)A local government may close a road (permanently or temporarily) to all traffic, or traffic of a particular class, if there is another road or route reasonably available for use by the traffic.

(2)Also, the local government may close a road to all traffic or traffic of a particular class—

(a)during a temporary obstruction to traffic; or

(b)if it is in the interests of public safety; or

(c)if it is necessary or desirable to close the road for a temporary purpose (including a fair, for example).

(3)The local government must publish notice of the closing of the road, in the way that the local government considers appropriate (including on its website, for example).

(4)The local government may do everything necessary to stop traffic using the road after it is closed.

(5)If a road is closed to traffic for a temporary purpose, the local government may permit the use of any part of the road (including for the erection of any structure, for example) on the conditions the local government considers appropriate.

70Temporary roads

(1)This section applies if—

(a)a local government wants to remake or repair a road; and

(b)it is not reasonably practicable to temporarily close the road to traffic while the roadworks are conducted.

(2)The local government may make a temporary road, through land that adjoins the road, to be used while the road is being remade or repaired.

(3)However, a local government employee or contractor may enter the land only if—

(a)the owner or occupier of the land has agreed, in writing, that the local government employee or contractor may enter the land; or

(b)the local government has given the owner or occupier of the land at least 3 days notice that states—

(i)the nature of the roadworks that are to be conducted; and

(ii)the proposed route of the temporary road; and

(iii)an approximate period when the temporary road is expected to remain on the land.

(4)Subsection (3) does not apply if the roadworks must be urgently conducted, but the local government must give the owner or occupier of the land oral notice of the matters mentioned in subsection (3)(b).

(5)The owner of the land may give the chief executive officer a notice that claims compensation for physical damage caused by the local government entering, occupying or using the land under this section.

(6)Compensation is not payable unless the chief executive officer receives the claim—

(a)within 1 year after the occupation or use has ended; or

(b)at a later time allowed by the chief executive officer.

(7)The compensation equals—

(a)the amount agreed between the person and local government; or

(b)if the person and local government can not agree, the amount that is decided by a court.

(8)However, the compensation must not be more than the compensation that would have been awarded if the land had been acquired.

71Road levels

(1)The owner or occupier of land that adjoins a road may give notice to the local government requiring it to advise the owner or occupier of the permanent level that is fixed or to be fixed for the road.

(2)If the local government has not, within 6 months after receiving the notice, given the owner or occupier written advice about the permanent level of the road, the local government is taken to have fixed the apparent level of the road when the notice was given as the permanent level of the road.

(3)If—

(a)after a local government has fixed the permanent level of a road, the local government changes the level of the road; and

(b)the owner or occupier of land that adjoins the road is injuriously affected by the change;

the local government must pay the owner or occupier, or their successor in title, compensation.

(4)The compensation equals—

(a)the amount that is agreed between the owner or occupier, or their successor in title, and the local government; or

(b)if the owner or occupier, or their successor in title, and the local government can not agree—the amount that is decided by the Planning and Environment Court.

72Assessment of impacts on roads from certain activities

(1)This section applies if—

(a)a regulation prescribes an activity for this section; and

(b)a local government considers that the conduct of the activity is having, or will have, a significant adverse impact on a road in the local government area; and

(c)the activity is not for—

(i)a coordinated project under the State Development and Public Works Organisation Act 1971; or

(ii)development categorised under the local government’s planning scheme as assessable development for the Planning Act; or

(iii)a road being built under the Land Act, section 110.

(2)The local government may require the entity that is conducting the activity to provide information, within a reasonable time, that will enable the local government to assess the impact of the activity on the road.

(3)After assessing the impact of the activity on the road, the local government may decide to do 1 or more of the following—

(a)give the entity a direction about the use of the road to lessen the impact;

(b)require the entity—

(i)to carry out works to lessen the impact; or

(ii)to pay an amount as compensation for the impact.

(4)The local government may require the works to be carried out or the amount to be paid before the impact commences or intensifies.

(5)The amount of compensation is a debt payable to the local government and may be recovered in a court.

(6)A regulation for this section—

(a)must contain a process under which the local government’s decision may be reviewed; and

(b)may contain a process for enforcing the decision.

73Categorisation of roads

A local government must categorise the roads in its local government area according to the surface of the road.

74Roads map and register

(1)A local government must prepare and keep up-to-date—

(a)a map of every road, including private roads, in its local government area; and

(b)a register of the roads that shows—

(i)the category of every road; and

(ii)the level of every road that has a fixed level; and

(iii)other particulars prescribed under a regulation.

(2)The register of roads may also show other particulars that the local government considers appropriate.

(3)The public may inspect the map and register at the local government’s public office.

(4)On application and payment of a reasonable fee fixed under a resolution or local law, a person may obtain—

(a)a copy of a map or register of roads; or

(b)a certificate signed by an employee of the local government who is authorised for the purpose—

(i)about the category, alignment and levels of roads in its area; or

(ii)about the fact that the alignment or level of a road in its area has not been fixed.

75Unauthorised works on roads

(1)This section applies to a road in a local government area.

(2)A person must not, without lawful excuse (including under another Act, for example), or the written approval of the local government—

(a)carry out works on a road; or

(b)interfere with a road or its operation.

Maximum penalty—200 penalty units.

(3)Works do not include the maintenance of ancillary works and encroachments, or landscaping, that does not interfere with the road or its operation.

(4)An approval may be subject to the conditions decided by the local government.

(5)A person must not contravene a condition that applies to a person under subsection (4).

Maximum penalty—40 penalty units.

(6)If a person carries out works in contravention of this section, the local government may—

(a)dismantle or alter the works; or

(b)fix any damage caused by the works.

(7)If the local government dismantles or alters the works, or fixes any damage caused by the works, the person must pay the local government the reasonable costs incurred by the local government in doing so.

76What this division is about

(1)This division is about stormwater drains and stormwater installations.

(2)A stormwater drain is a drain, channel, pipe, chamber, structure, outfall or other works used to receive, store, transport or treat stormwater.

(3)A stormwater installation for a property—

(a)is any roof gutters, downpipes, subsoil drains or stormwater drain for the property; but

(b)does not include any part of a local government’s stormwater drain.

77Connecting stormwater installation to stormwater drain

(1)A local government may, by notice, require the owner of a property to connect a stormwater installation for the property to the local government’s stormwater drain in the way, under the conditions and within the time stated in the notice.

(2)The way, condition and time stated in the notice must be reasonable in the circumstances.

(3)A person must not connect a stormwater installation for a property to a local government’s stormwater drain unless—

(a)the local government has required the owner of the property to do so by a notice under subsection (1); or

(b)the local government has given its approval for the connection.

Maximum penalty—165 penalty units.

(4)The local government may impose conditions on its approval for the connection, including conditions about the way the connection must be made.

(5)If a person connects a stormwater installation under a requirement or approval of the local government, the person must comply with the requirement or approval, unless the owner has a reasonable excuse.

Maximum penalty for subsection (5)—165 penalty units.

78No connecting sewerage to stormwater drain

(1)The owner of a property must not connect the sewerage installation for property, or allow the sewerage installation for the property to be connected, to any part of—

(a)the stormwater installation for the property; or

(b)the stormwater drain of the local government.

Maximum penalty—165 penalty units.

(2)A sewerage installation is any of the following—

(a)an on-site sewage facility within the meaning given in the Plumbing and Drainage Act;

(b)a sewer for a property or building unit;

(c)sanitary plumbing i.e. any apparatus, fittings, fixtures or pipes that carry sewage to a sanitary drain;

(d)sanitary drainage i.e. any apparatus, fittings or pipes for collecting and carrying discharges—

(i)from fixtures (that are directly connected to a sanitary drain) to an on-site sewerage facility or a sewerage treatment system; or

(ii)from sanitary plumbing to an on-site sewerage facility or a sewerage treatment system.

Examples of apparatus, fittings or pipes for sanitary drainage—

•disconnector gullies

•bends at the foot of stacks or below ground level

•pipes above ground level that are installed using drainage principles

•for an on-site sewerage facility—a pipe (other than a soil or waste pipe) used to carry sewage to or from the facility

(3)The owner of a property who becomes aware that the sewerage installation for the property is connected to any part of—

(a)the stormwater installation for the property; or

(b)the stormwater drain of the local government;

must, as soon as reasonably practicable, take all necessary steps to disconnect the facility, drainage or sewer from the stormwater installation or drain.

Maximum penalty—165 penalty units.

(4)If the sewerage installation for property is connected to any part of—

(a)the stormwater installation on the property; or

(b)the stormwater drain of the local government;

the local government may, by notice, require the owner of the property to perform the work stated in the notice, within the time stated in the notice.

(5)The time stated in the notice must—

(a)be a time that is reasonable in the circumstances; and

(b)be at least 1 month after the notice is given to the owner.

(6)However, the time stated in the notice may be less than 1 month but must not be less than 48 hours if the work stated in the notice—

(a)is required to stop a serious health risk continuing; or

(b)relates to a connection that is causing damage to the local government’s stormwater drain.

(7)The work stated in the notice must be work that is reasonably necessary for fixing or otherwise dealing with the sewerage installation, including for example—

(a)work to remedy a contravention of this Act; or

(b)work to disconnect something that was connected to a stormwater drain without the local government’s approval.

(8)The owner must comply with the notice, unless the owner has a reasonable excuse.

Maximum penalty for subsection (8)—165 penalty units.

79No trade waste or prohibited substances in stormwater drain

(1)A person must not put trade waste into a stormwater drain.

Maximum penalty—1,000 penalty units.

(2)Trade waste is waterborne waste from business, trade or manufacturing property, other than—

(a)stormwater; and

(b)a prohibited substance.

(3)A person must not put a prohibited substance into a stormwater drain.

Maximum penalty—1,000 penalty units.

(4)A prohibited substance is—

(a)a solid or viscous substance in a quantity, or of a size, that can obstruct, or interfere with the operation of, a stormwater drain; or

Examples for paragraph (a)—

•ash, cinders, sand, mud, straw and shavings

•metal, glass and plastics

•paper and plastic dishes, cups and milk containers

•rags, feathers, tar and wood

•whole blood, paunch manure, hair and entrails

•oil and grease

•cement-laden wastewater, including wash down from exposed aggregate concrete surfaces

(b)a flammable or explosive solid, liquid or gaseous substance; or

(c)sewage, including human waste; or

(d)a substance that, given its quantity, is capable alone, or by interaction with another substance put into a stormwater drain, of—

(i)inhibiting or interfering with the stormwater drain; or

(ii)causing damage or a hazard to the stormwater drain; or

(iii)causing a hazard for humans or animals; or

(iv)creating a public nuisance; or

(v)creating a hazard in waters; or

(vi)contaminating the environment in places where stormwater is discharged or reused; or

Example for paragraph (d)—

a substance with a pH lower than 6.0 or greater than 10.0, or having another corrosive property

(e)a substance that has a temperature of more than—

(i)if the local government has approved a maximum temperature for the substance—the approved maximum temperature; or

(ii)otherwise—38ºC.

(5)If—

(a)a person puts a prohibited substance in a local government’s stormwater drain; and

(b)the prohibited substance causes damage to the stormwater drain;

the local government may perform work to fix the damage, and may recover the reasonable costs for the work from the person who put the prohibited substance in the stormwater drain.

(6)The costs for the work are in addition to any penalty imposed for the offence.

80Interference with path of stormwater

(1)A person must not restrict or redirect the flow of stormwater over land in a way that may cause the water to collect and become stagnant.

Maximum penalty—165 penalty units.

(2)However, this section does not apply to water collected in a dam, wetland, tank or pond, if no offensive material is allowed to accumulate.

80AMalls

(1)A local government may establish a mall in its local government area.

(2)The local government must comply with the procedures prescribed under a regulation for establishing a mall.

(3)The regulation may also provide for any other matter connected with managing, promoting or using a mall, including, for example—

(a)removal of vehicles from a mall; and

(b)review of a decision relating to the removal of a vehicle from a mall; and

(c)matters relating to an advisory committee for a mall.

(4)A person is not entitled to compensation on account of injurious affection to any right or interest of a business, commercial or industrial nature because of the establishment, modification or closing of a mall by a local government.

(5)However, the local government may, by resolution, decide to pay compensation to the person.

(6)The Land Act, chapter 4, part 4 does not apply to a road that is a mall.

80BFerry services

(1)A local government has the exclusive right to provide a ferry service across a watercourse if the land that forms both banks of the watercourse is in its local government area.

(2)A watercourse is a river, creek or channel where water flows naturally.

(3)A local government may—

(a)lease the right to provide a ferry service across a watercourse that it has the exclusive right to provide a ferry service across; and

(b)make local laws for managing and regulating the use of ferries operated or leased by it.

(4)A regulation may—

(a)declare another watercourse that a local government has the exclusive right to provide a ferry service across; and

(b)provide for any other matter connected with the provision of ferry services (including declaring the approaches to a ferry as being under the control of a local government, for example).

81What this part is about

This part contains provisions that relate only to the following local governments—

(a)Aurukun Shire Council;

(b)Mornington Shire Council;

(c)an indigenous local government.

82What this division is about

(1)This division contains provisions that apply to a trustee council.

(2)A trustee council is any of the following local governments if the local government is a trustee of trust land—

(a)Aurukun Shire Council;

(b)Mornington Shire Council;

(c)an indigenous local government.

(3)Trust land is the land described in a deed of grant in trust that is issued under the Land Act.

(4)The provisions of this division—

(a)do not affect the status that any land has under the Aboriginal Land Act 1991 or the Torres Strait Islander Land Act 1991; and

(b)are additional to the provisions that apply to the land under the Land Act and any other law.

83Trustee business must be conducted separately

(1)A trustee council must conduct its trustee business separately from its other local government business.

(2)Trustee business is any business that relates to trust land.

(3)So, the trustee council must—

(a)maintain separate accounts and records for trustee business; and

(b)in its capacity as trustee council, formally advise itself, in its capacity as indigenous regional council, of matters relating to trustee business; and

(c)hold separate meetings for trustee business from meetings for other local government business.

84Meetings about trust land generally open to the public

(1)All meetings relating to trust land must be open to the public, unless the trustee council decides, by resolution, that the meeting be closed to the public.

(2)The trustee council may do so only to allow the trustee council to discuss business for which public discussion would be likely to—

(a)prejudice the interests of the trustee council or someone else; or

(b)enable a person to gain a financial advantage.

(3)For example, a meeting may be closed to the public to allow the trustee council to discuss—

(a)the appointment, discipline or dismissal of local government employees; or

(b)industrial matters affecting local government employees; or

(c)starting or defending legal proceedings; or

(d)that part of the budget that relates to the trust land; or

(e)contracts proposed to be made by the trustee council.

(4)A resolution to close a meeting to the public must specify the general nature of the matters to be discussed while the meeting is closed to the public.

(5)The trustee council must not make a resolution (other than a procedural resolution) in a meeting that is closed to the public.

85Community forum input on trust change proposals

(1)This section applies if—

(a)a trustee council is an indigenous regional council; and

(b)the trustee council wants to consider a trust change proposal; and

(c)a community forum has been established for the division of the local government where the trust land is located.

(2)A trust change proposal is a proposal to make a decision—

(a)to put an improvement (including a structure, for example) on trust land; or

(b)to create an interest in trust land (including a lease or mortgage, for example); or

(c)that the trustee council has decided, by resolution, must be dealt with as a trust change proposal.

(3)The trustee council must give the community forum an opportunity to give input about the trust change proposal.

Note—

See division 3 for more information about community forums.

(4)The trustee council must give the community forum a notice that gives the community forum—

(a)reasonably sufficient information about the trust change proposal; and

(b)reasonably sufficient time;

to allow the community forum to give input about the trust change proposal.

(5)The trustee council must have regard to any input that is received from the community forum within the time specified in the notice.

(6)If the trustee council proposes to make a decision that is contrary to the community forum’s input, the trustee council must give notice of the reasons for the proposed decision to the community forum.

(7)If the community forum advises the trustee council that it does not support the trustee council’s proposed decision, the trustee council must take reasonable steps to let the community know.

(8)If the trustee council proposes to make a decision that is contrary to the community forum’s input, the decision has effect only if—

(a)the decision is approved by a majority of the councillors (other than the mayor), regardless of how many councillors take part in any meeting about the decision; and

(b)the councillor for the division of the local government area in which the trust land is situated does not vote against approving the decision.

85ATrust change decisions if no community forum

(1)This section applies if—

(a)a trustee council, that is an indigenous regional council, proposes to make a trust change decision; and

(b)a community forum has not been established for the division of the local government where the trust land is located.

(2)A trust change decision is a decision—

(a)to put an improvement (including a structure, for example) on trust land; or

(b)to create an interest in trust land (including a lease or mortgage, for example); or

(c)that the trustee council has decided, by resolution, must be dealt with as a trust change proposal within the meaning of section 85(2).

(3)The trust change decision has effect only if—

(a)the decision is approved by a majority of the councillors (other than the mayor), regardless of how many councillors take part in any meeting about the decision; and

(b)the councillor for the division of the local government area in which the trust land is located does not vote against approving the decision.

86Grouping of trust land not available

The chief executive under the Land Act must not approve the grouping of trust land under the Land Act, section 62, if any of the trust land is the subject of a community deed of grant in trust.

87Community forums

(1)This section applies if an indigenous regional council establishes a community forum for the council or, if the council is divided, any of its divisions.

(2)A community forum is a body established by an indigenous regional council to be responsible for meeting with the local community to discuss issues relating to—

(a)trust land; and

(b)planning; and

(c)the delivery of services; and

(d)culture.

(3)The local community is the community living in the local government area or division for which the community forum is established.

(4)A community forum is made up of—

(a)a chairperson, who is the councillor for the division; and

(b)at least 3, but not more than 7, appointed members.

(5)The indigenous regional council must publish the following information in a newspaper circulating generally in its local government area—

(a)the name of the community forum;

(b)the names of the members of the community forum.

(6)The indigenous regional council must decide all matters necessary for the operation of its community forums.

88Members of a community forum

(1)This section is about the members of a community forum.

(2)A person is appointed as a member of a community forum (other than as chairperson)—

(a)by a resolution of the indigenous regional council for the forum; and

(b)under a merits based selection process conducted by the indigenous regional council for the forum after a call for expressions of interest in appointment is advertised in a newspaper circulating generally in the council’s local government area.

(3)A person is not qualified to be appointed as a member if the person is the mayor of the indigenous regional council.

(4)A person stops being a member if the person—

(a)resigns by signed notice of resignation given to the indigenous regional council for the community forum; or

(b)completes a term of office and is not re-appointed.

89Payments to appointed members of a community forum

(1)An appointed member of a community forum is not entitled to be paid any remuneration.

(2)However, an indigenous regional council may authorise—

(a)the payment of the expenses incurred, or to be incurred, by the appointed members of a community forum; or

(b)the provision of facilities to the appointed members of a community forum.

90ACaretaker period

(1)The caretaker period for a local government is the period during an election for the local government that—

(a)starts on the day when public notice of the holding of the election is given under the Local Government Electoral Act, section 25(1); and

(b)ends at the conclusion of the election.

(2)There is no caretaker period during a by-election or fresh election.

90BProhibition on major policy decision in caretaker period

(1)A local government must not make a major policy decision during a caretaker period for the local government.

(2)However, if the local government considers that, having regard to exceptional circumstances that apply, it is necessary to make the major policy decision in the public interest, the local government may apply to the Minister for approval to make the decision.

(3)The Minister may give the approval if the Minister is satisfied that, having regard to exceptional circumstances that apply, it is necessary for the local government to make the major policy decision in the public interest.

(4)The Minister’s approval may be given on conditions with which the local government must comply.

90CInvalidity of major policy decision in caretaker period without approval

(1)A major policy decision made by a local government during a caretaker period for the local government is invalid to the extent the local government—

(a)does not have the Minister’s approval under section 90B to make the decision; or

(b)does not comply with any conditions of the Minister’s approval under section 90B(4).

(2)A contract is void if it is the subject of a major policy decision that is invalid.

(3)A person who acts in good faith in relation to a major policy decision of a local government, or in relation to a contract that is the subject of a major policy decision, but who suffers loss or damage because of any invalidity of the decision under subsection (1) or because the contract is void under subsection (2), has a right to be compensated by the local government for the loss or damage.

(4)The person may bring a proceeding to recover the compensation in a court of competent jurisdiction.

90DProhibition on election material in caretaker period

(1)A local government or a controlled entity of a local government must not, during a caretaker period for the local government, publish or distribute election material.

(2)Election material is anything able to, or intended to—

(a)influence an elector about voting at an election; or

(b)affect the result of an election.

Examples—

a fact sheet or newsletter that raises the profile of a councillor

(3)The prohibition under subsection (1) does not apply to making a how-to-vote card available under the Local Government Electoral Act 2011, section 179(6).

(4)In this section—

control means the capacity of an entity to dominate decision-making, directly or indirectly, in relation to the financial and operating policies of another entity so as to enable the other entity to operate with the first entity in pursuing the first entity’s objectives.

controlled entity, of a local government, means an entity subject to the control of either or both of the following—

(a)the local government;

(b)another entity subject to the control of the local government.

91What this part is about

(1)This part is about rates and charges.

(2)Rates and charges are levies that a local government imposes—

(a)on land; and

(b)for a service, facility or activity that is supplied or undertaken by—

(i)the local government; or

(ii)someone on behalf of the local government (including a garbage collection contractor, for example).

92Types of rates and charges

(1)There are 4 types of rates and charges—

(a)general rates (including differential rates); and

(b)special rates and charges; and

(c)utility charges; and

(d)separate rates and charges.

(2)General rates are for services, facilities and activities that are supplied or undertaken for the benefit of the community in general (rather than a particular person).

Example—

General rates contribute to the cost of roads and library services that benefit the community in general.

(3)Special rates and charges are for services, facilities and activities that have a special association with particular land because—

(a)the land or its occupier—

(i)specially benefits from the service, facility or activity; or

(ii)has or will have special access to the service, facility or activity; or

(b)the land is or will be used in a way that specially contributes to the need for the service, facility or activity; or

(c)the occupier of the land specially contributes to the need for the service, facility or activity.

Examples—

Special rates and charges could be levied—

•for the cost of maintaining a road in an industrial area that is regularly used by heavy vehicles

•for the cost of replacing the drainage system in only part of the local government area

•on land that is used only by businesses that would benefit from the promotion of tourism in the local government area.

(4)Utility charges are for a service, facility or activity for any of the following utilities—

(a)waste management;

(b)gas;

(c)sewerage;

(d)water.

(5)Separate rates and charges are for any other service, facility or activity.

93Land on which rates are levied

(1)Rates may be levied on rateable land.

(2)Rateable land is any land or building unit, in the local government area, that is not exempted from rates.

(3)The following land is exempted from rates—

(a)unallocated State land within the meaning of the Land Act;

(b)land that is occupied by the State or a government entity, unless—

(i)the government entity is a GOC or its subsidiary (within the meaning of the Government Owned Corporations Act 1993) and the government entity is not exempt from paying rates; or

(ii)the land is leased to the State or a government entity by someone who is not the State or a government entity;

(c)land in a state forest or timber reserve, other than land occupied under—

(i)an occupation permit or stock grazing permit under the Forestry Act; or

(ii)a lease under the Land Act;

(d)Aboriginal land under the Aboriginal Land Act 1991, or Torres Strait Islander land under the Torres Strait Islander Land Act 1991, other than a part of the land that is used for commercial or residential purposes;

(e)the following land under the Transport Infrastructure Act—

(i)strategic port land that is occupied by a port authority, the State, or a government entity;

(ii)strategic port land that is occupied by a wholly owned subsidiary of a port authority, and is used in connection with the Cairns International Airport or Mackay Airport;

(iii)existing or new rail corridor land;

(iv)commercial corridor land that is not subject to a lease;

(f)airport land, within the meaning of the Airport Assets (Restructuring and Disposal) Act 2008, that is used for a runway, taxiway, apron, road, vacant land, buffer zone or grass verge;

(g)land that is owned or held by a local government unless the land is leased by the local government to someone other than another local government;

(h)land that is—

(i)primarily used for showgrounds or horseracing; and

(ii)exempted from rating by resolution of a local government;

(i)land that is exempted from rating, by resolution of a local government, for charitable purposes;

(j)land that is exempted from rating under—

(i)another Act; or

(ii)a regulation, for religious, charitable, educational or other public purposes.

(4)The land mentioned in subsection (3)(f) stops being exempted land when either of the following events first happens—

(a)a development permit under the Planning Act comes into force for the land for a use that is not mentioned in subsection (3)(f);

(b)development within the meaning of the Planning Act (other than reconfiguring a lot) starts for a use that is not mentioned in subsection (3)(f).

94Power to levy rates and charges

(1)Each local government—

(a)must levy general rates on all rateable land within the local government area; and

(b)may levy—

(i)special rates and charges; and

(ii)utility charges; and

(iii)separate rates and charges.

(1A)Without limiting subsection (1), a local government may categorise rateable land, and decide differential rates for rateable land, according to whether or not the land is the principal place of residence of the owner.

(2)A local government must decide, by resolution at the local government’s budget meeting for a financial year, what rates and charges are to be levied for that financial year.

95Overdue rates and charges are a charge over rateable land

(1)This section applies if the owner of rateable land owes a local government for overdue rates and charges.

(2)The overdue rates and charges are a charge on the land.

(3)The local government may register the charge over the land by lodging the following documents with the registrar of titles—

(a)a request to register the charge over the land, in the appropriate form;

(b)a certificate signed by the chief executive officer that states there is a charge over the land for overdue rates and charges.

(4)After the charge is registered over the land, the charge has priority over any other encumbrances over the land, other than encumbrances in favour of—

(a)the State; or

(b)a government entity.

(5)If the overdue rates and charges are paid, the local government must lodge the following documents with the registrar of titles—

(a)a request to release the charge over the land, in the appropriate form;

(b)a certificate signed by the chief executive officer that states the overdue rates and charges have been paid.

(6)This section does not limit any other remedy that the local government has to recover the overdue rates and charges (including selling the land, for example).

96Regulations for rates and charges

A regulation may provide for any matter connected with rates and charges, including for example—

(a)concessions; and

(b)the categorisation of land for rates and charges; and

(c)the process for recovering overdue rates and charges, including by the sale of the land to which the rates and charges relate.

97Cost-recovery fees

(1)A local government may, under a local law or a resolution, fix a cost-recovery fee.

(2)A cost-recovery fee is a fee for—

(a)an application for the issue or renewal of a licence, permit, registration or other approval under a Local Government Act (an application fee); or

(b)recording a change of ownership of land; or

(c)giving information kept under a Local Government Act; or

(d)seizing property or animals under a Local Government Act; or

(e)the performance of another responsibility imposed on the local government under the Building Act or the Plumbing and Drainage Act.

(3)A local law or resolution for subsection (2)(d) or (e) must state—

(a)the person liable to pay the cost-recovery fee; and

(b)the time within which the fee must be paid.

(4)A cost-recovery fee must not be more than the cost to the local government of taking the action for which the fee is charged.

(5)However, an application fee may also include a tax—

(a)in the circumstances and for a purpose prescribed under a regulation; and

(b)if the local government decides, by resolution, that the purpose of the tax benefits its local government area.

(6)The local law or resolution that fixes an application fee that includes a tax must state the amount, and the purpose, of the tax.

(7)If an application fee that includes a tax is payable in relation to land, the tax applies only in relation to land that is rateable land.

(8)A local government may fix a cost-recovery fee by resolution even if the fee had previously been fixed by a local law.

98Register of cost-recovery fees

(1)A local government must keep a register of its cost-recovery fees.

(2)The register must state the paragraph of section 97(2) under which the cost-recovery fee is fixed.

(3)Also, the register must state—

(a)for a cost-recovery fee under section 97(2)(a)—the provision of the Local Government Act under which the licence, permit, registration or other approval is issued or renewed; or

(b)for a cost-recovery fee under section 97(2)(c)—the provision of the Local Government Act under which the information is kept; or

(c)for a cost-recovery fee under section 97(2)(d)—the provision of the Local Government Act under which the property or animals are seized; or

(d)for a cost-recovery fee under section 97(2)(e)—the provision of the Building Act or the Plumbing and Drainage Act under which the responsibility is imposed.

(4)The public may inspect the register at the local government’s public office.

99Fees on occupiers of land below the high-water mark

(1)This section applies to the occupier (other than the State or a government entity) of a structure that is on land that—

(a)is not rateable land, and therefore not subject to rates; and

(b)is in, or is adjoining, a local government area; and

(c)is below the high-water mark.

(2)The high-water mark is the ordinary high-water mark at spring tides.

(3)The local government for the local government area may, by resolution, levy a fee on the occupier of the structure for the use of the local government’s roads and other infrastructure.

(4)For subsection (3), fee includes a tax.

100Fees on residents of particular local government areas

(1)This section applies to the following local governments—

(a)Aurukun Shire Council;

(b)Mornington Shire Council;

(c)an indigenous local government.

(2)A local government may, by resolution, levy a fee on residents of its local government area.

(3)The local government may exempt a resident from paying the fee, if another amount is payable to the local government in relation to the property in which the resident resides.

101Statutory Bodies Financial Arrangements Act applies to local governments

(1)A local government is a statutory body for the Statutory Bodies Financial Arrangements Act.

(2)Part 2B of that Act sets out the way in which that Act affects a local government’s powers.

104Financial management systems

(1)To ensure it is financially sustainable, a local government must establish a system of financial management that—

(a)ensures regard is had to the sound contracting principles when entering into a contract for—

(i)the supply of goods or services; or

(ii)the disposal of assets; and

(b)complies with subsections (5) to (7).

(2)A local government is financially sustainable if the local government is able to maintain its financial capital and infrastructure capital over the long term.

(3)The sound contracting principles are—

(a)value for money; and

(b)open and effective competition; and

(c)the development of competitive local business and industry; and

(d)environmental protection; and

(e)ethical behaviour and fair dealing.

(4)A contract for the supply of goods or services includes a contract about carrying out work.

(5)The system of financial management established by a local government must include—

(a)the following financial planning documents prepared for the local government—

(i)a 5-year corporate plan that incorporates community engagement;

(ii)a long-term asset management plan;

(iii)a long-term financial forecast;

(iv)an annual budget including revenue statement;

(v)an annual operational plan; and

(b)the following financial accountability documents prepared for the local government—

(i)general purpose financial statements;

(ii)asset registers;

(iii)an annual report;

(iv)a report on the results of an annual review of the implementation of the annual operational plan; and

(c)the following financial policies of the local government—

(i)investment policy;

(ii)debt policy;

(iii)revenue policy.

(6)A local government must ensure the financial policies of the local government are regularly reviewed and updated as necessary.

(7)A local government must carry out a review of the implementation of the annual operational plan annually.

(8)To remove any doubt, it is declared that subsection (1)(a) does not require equal consideration to be given to each of the sound contracting principles.

105Auditing, including internal auditing

(1)Each local government must establish an efficient and effective internal audit function.

(2)Each large local government must also establish an audit committee.

(3)A large local government is a local government that belongs to a class prescribed under a regulation.

(4)An audit committee is a committee that—

(a)monitors and reviews—

(i)the integrity of financial documents; and

(ii)the internal audit function; and

(iii)the effectiveness and objectivity of the local government’s internal auditors; and

(b)makes recommendations to the local government about any matters that the audit committee considers need action or improvement.

107Insurance

(1)A local government must maintain the following insurance—

(a)public liability insurance;

(b)professional indemnity insurance.

(2)The insurance must be for at least the amount required under a regulation.

(3)A local government may enter into a contract of insurance with WorkCover Queensland, or another insurer, to cover its councillors.

(4)For that purpose, a councillor’s role includes attending—

(a)meetings of the local government or its committees that the councillor is entitled or asked to attend; and

(b)meetings for a resident of the local government area; and

(c)conferences, deputations, inspections and meetings at which the councillor’s attendance is permitted by the local government; and

(d)official functions organised for the local government.

108What this part is about

This part is about councillors’ financial accountability.

109Councillor’s discretionary funds

(1)A councillor must ensure that the councillor’s discretionary funds are used in accordance with the requirements prescribed under a regulation.

(2)Discretionary funds are funds in the local government’s operating fund that are—

(a)budgeted for community purposes; and

(b)allocated by a councillor at the councillor’s discretion.

110Councillors liable for improper disbursements

(1)This section applies if—

(a)a local government disburses local government funds in a financial year; and

(b)the disbursement—

(i)is not provided for in the local government’s budget for the financial year; and

(ii)is made without the approval of the local government by resolution.

(2)The local government must give the public notice of the disbursement in a newspaper that is circulating generally in the local government area, within 14 days after the disbursement is made.

(3)If the disbursement is not made for a genuine emergency or hardship, the councillors who knowingly agree to the disbursement are jointly and severally liable to pay the local government—

(a)the amount of the disbursement; and

(b)interest on the amount of the disbursement, at the rate at which interest accrues on overdue rates, calculated from the day of the disbursement to the day of repayment; and

(c)any fees, charges, penalties or other expenses incurred by the local government in relation to the disbursement.

(4)Those amounts may be recovered as a debt payable to the local government.

111Councillors liable for loans to individuals

(1)A local government must not, either directly or indirectly, make or guarantee a loan to an individual.

(2)Guarantee a loan includes provide a security in connection with a loan.

(3)The councillors who knowingly agree to loan the money are jointly and severally liable to pay the local government—

(a)the amount of the loan; and

(b)interest on the amount of the loan, at the rate at which interest accrues on overdue rates, calculated from the day of the borrowing to the day of repayment; and

(c)any fees, charges, penalties or other expenses incurred by the local government in relation to the loan.

(4)Those amounts may be recovered as a debt payable to the local government.

112Councillors liable for improper borrowings

(1)This section applies if a local government borrows money—

(a)for a purpose that is not for the good rule and government of the local government area; or

(b)in contravention of this Act or the Statutory Bodies Financial Arrangements Act.

(2)The councillors who knowingly agree to borrow the money are jointly and severally liable to pay the local government—

(a)the amount borrowed; and

(b)interest on the amount borrowed, at the rate at which interest accrues on overdue rates, calculated from the day of the borrowing to the day of repayment; and

(c)any fees, charges, penalties or other expenses incurred by the local government in relation to the borrowing.

(3)Those amounts may be recovered as a debt payable to the local government.

(4)This section applies despite—

(a)the fact that a security was issued for the borrowing; or

(b)the Statutory Bodies Financial Arrangements Act.

113What this part is about

(1)The purpose of this part is to allow the Minister or the department’s chief executive, on behalf of the State—

(a)to gather information, including under a direction, to monitor and evaluate whether—

(i)a local government or councillor is performing their responsibilities properly; or

(ii)a local government or councillor is complying with laws applying to the local government or councillor, including the Local Government Acts; or

(iii)it is otherwise in the public interest for the Minister or the department’s chief executive to take remedial action under this part; and

(b)to take remedial action.

(2)Remedial action is action to improve a local government’s or councillor’s performance or compliance, or that is in the public interest, taken under division 2A or 3.

114Decisions under this part are not subject to appeal

A decision of the Minister under this part is not subject to appeal.

Note—

See section 244 for more information.

115Gathering information

To monitor and evaluate a local government’s or councillor’s performance and compliance, or whether it is in the public interest to take remedial action in relation to the local government or councillor, the department’s chief executive may—

(a)examine the information contained in the local government’s records and operations; or

(b)otherwise carry out an investigation into—

(i)the local government’s or councillor’s performance and compliance; or

(ii)whether it is in the public interest to take the remedial action.

116Recommendation to Minister

(1)This section applies if the department’s chief executive believes—

(a)a local government or councillor is not performing their responsibilities properly; or

(b)a local government or councillor is not complying with laws applying to the local government or councillor, including the Local Government Acts; or

(c)it is otherwise in the public interest for the Minister to take remedial action.

(2)The department’s chief executive may make recommendations to the Minister about what remedial action to take.

(3)The Minister may take the remedial action the Minister considers appropriate in the circumstances.

(4)If the Minister takes remedial action, the Minister may publish the following information—

(a)the way in which the local government or councillor—

(i)is not performing their responsibilities properly; or

(ii)is not complying with laws applying to the local government or councillor, including the Local Government Acts;

(b)the reason it is in the public interest for the Minister to take remedial action;

(c)the remedial action the Minister has taken.

(5)The Minister may—

(a)publish the information in a newspaper circulating generally in the local government area; or

(b)direct the local government to publish the information on the local government’s website.

117Advisors

(1)This section applies if the department’s chief executive believes—

(a)a local government is not performing its responsibilities properly; or

(b)a local government is not complying with laws applying to the local government, including the Local Government Acts; or

(c)it is otherwise in the public interest for the department’s chief executive to appoint an advisor for a local government.

(2)The department’s chief executive may, by gazette notice, appoint an advisor for the local government.

(3)An advisor is responsible for—

(a)helping the local government to build its capacity—

(i)to perform its responsibilities properly; or

(ii)to comply with laws applying to the local government, including the Local Government Acts; and

(b)performing other related duties as directed by the department’s chief executive.

(4)The local government must cooperate fully with the advisor.

118Financial controllers

(1)This section applies if the department’s chief executive believes—

(a)a local government is not performing its responsibilities properly; or

(b)a local government is not complying with laws applying to the local government, including the Local Government Acts; or

(c)it is otherwise in the public interest for the department’s chief executive to appoint a financial controller for a local government.

(2)The department’s chief executive may, by gazette notice, appoint a financial controller for the local government.

(3)A financial controller is responsible for—

(a)implementing financial controls as directed by the department’s chief executive; and

(b)performing other related duties as directed by the department’s chief executive.

(4)The local government must cooperate fully with the financial controller.

(5)If a financial controller is appointed, a payment from an account kept by the local government with a financial institution may be made only by—

(a)a cheque countersigned by the financial controller; or

(b)an electronic funds transfer authorised by the financial controller.

(6)If the financial controller reasonably believes a decision, resolution or order to make a payment is financially unsound, the financial controller must—

(a)refuse to make a payment; and

(b)advise the department’s chief executive about why the decision, resolution or order is financially unsound.

(7)A decision, resolution or order is financially unsound if the decision, resolution or order—

(a)may cause the local government to become insolvent; or

(b)will result in unlawful expenditure by the local government; or

(c)will result in a disbursement from a fund that is not provided for in the local government’s budget; or

(d)will result in expenditure from grant moneys for a purpose other than the purpose for which the grant was given.

119Costs and expenses of advisors and financial controllers

(1)The department’s chief executive may direct a local government for which an advisor or financial controller is appointed to pay the Minister a stated amount for—

(a)the salary and allowances payable to the advisor or financial controller; and

(b)the costs and expenses of the advisor or financial controller.

(2)The direction may state a time for payment.

(3)The stated amount is a debt payable to the State.

120Precondition to remedial action

(1)This section applies if the Minister proposes to exercise a power under this division.

(2)The Minister must give the local government or councillor in question a notice of the proposal to exercise the power, before the power is exercised, unless—

(a)the local government or councillor asked the Minister to exercise the power; or

(b)if the Minister proposes to exercise a power under section 122 or 123—the conduct tribunal has made a recommendation under section 150AR to suspend or dismiss a councillor; or

(c)the Minister considers that giving notice—

(i)is likely to defeat the purpose of the exercise of the power; or

(ii)would serve no useful purpose.

(3)The notice must state—

(a)the power that the Minister proposes to exercise; and

(b)the reasons for exercising the power; and

(c)any remedial action that the local government or councillor should take; and

(d)a reasonable time within which the local government or councillor may make submissions to the Minister about the proposal to exercise the power.

(4)The reasons stated in the notice are the only reasons that can be relied on in support of the exercise of the power.

(5)The Minister must have regard to all submissions that are made by the local government or councillor within the time specified in the notice.

(6)If—

(a)the Minister receives no submissions from the local government or councillor within the time specified in the notice; or

(b)the submissions from the local government or councillor do not contain reasonable grounds to persuade the Minister not to exercise the power;

the Minister may exercise the power without further notice to the local government or councillor.

121Removing unsound decisions

(1)This section applies if the Minister believes—

(a)a decision of the local government is contrary to any law or inconsistent with the local government principles; or

(b)it is otherwise in the public interest to suspend or revoke a decision of the local government.

(2)A decision is—

(a)a resolution; or

(b)an order to give effect to a resolution; or

(c)a planning scheme; or

(d)a part of a decision mentioned in paragraphs (a) to (c).

(3)The Minister, by a gazette notice, may—

(a)suspend the decision, for a specified period or indefinitely; or

(b)revoke the decision.

(4)The gazette notice must state—

(a)either—

(i)how the decision is contrary to a law or inconsistent with the local government principles; or

(ii)why it is otherwise in the public interest to suspend or revoke the decision; and

(b)if the decision has been suspended, how the decision may be amended so it is no longer—

(i)contrary to the law or inconsistent with the local government principles; or

(ii)in the public interest to suspend the decision.

(5)If the Minister suspends the decision, the decision stops having effect for the period specified in the gazette notice.

(6)If the Minister revokes the decision—

(a)the decision stops having effect on the day specified in the gazette notice; or

(b)if no day is specified in the gazette notice—the decision is taken to never have had effect.

(7)The State is not liable for any loss or expense incurred by a person because a local government’s decision is suspended or revoked under this section.

122Removing a councillor

(1)This section applies if—

(a)the conduct tribunal recommends under section 150AR that a councillor be suspended or dismissed; or

(b)the Minister reasonably believes that a councillor has seriously or continuously breached the local government principles; or

(c)the Minister reasonably believes that a councillor is incapable of performing their responsibilities; or

(d)the Minister reasonably believes it is otherwise in the public interest that a councillor be suspended or dismissed.

(2)The Minister may recommend that the Governor in Council—

(a)if the conduct tribunal recommends that a councillor be suspended or dismissed—suspend or dismiss the councillor; or

(b)if the proposal in the Minister’s notice under section 120 was to suspend the councillor for a stated period—suspend the councillor for a period that is no longer than the stated period; or

(c)if the proposal in the Minister’s notice under section 120 was to dismiss the councillor or dissolve the local government—suspend or dismiss the councillor.

(3)The Governor in Council may give effect to the Minister’s recommendation under a regulation.

123Suspending or dissolving a local government

(1)This section applies if—

(a)the conduct tribunal recommends under section 150AR that every councillor be suspended or dismissed; or

(b)the Minister reasonably believes that a local government has seriously or continuously breached the local government principles; or

(c)the Minister reasonably believes that a local government is incapable of performing its responsibilities; or

(d)the Minister reasonably believes it is otherwise in the public interest that every councillor be suspended or dismissed.

(2)If the proposal in the Minister’s notice under section 120 was to suspend every councillor for a stated period, the Minister may recommend that the Governor in Council—

(a)suspend every councillor for a period that is no longer than the stated period; and

(b)appoint an interim administrator to act in place of the councillors until the stated period ends.

(3)Also, the Minister may recommend that the Governor in Council—

(a)dissolve the local government; and

(b)appoint an interim administrator to act in place of the councillors until the conclusion of a fresh electionearlier of councillors.—

(i)the conclusion of a fresh election of councillors to be held on a stated date; or

(ii)the conclusion of the next quadrennial election.

(4)The Governor in Council may give effect to the Minister’s recommendation under a regulation.

(5)A regulation dissolving a local government has effect in accordance with the requirements of the Constitution of Queensland 2001, chapter 7, part 2.

(6)It is Parliament’s intention that a fresh election of the councillors of the local government should be held as soon as practicable after the Legislative Assembly ratifies the dissolution of the local government.

124Interim administrator acts for the councillors temporarily

(1)This section applies if an interim administrator is appointed to act in place of the councillors of a local government.

(2)The interim administrator has all the responsibilities and powers of—

(a)the local government; and

(b)the mayor.

(3)However, a regulation may limit the responsibilities and powers of the interim administrator.

(4)The interim administrator must exercise power under the name of ‘interim administrator of the (name of the local government)’.

(5)This Act and other Acts apply to the interim administrator, with all necessary changes, and any changes prescribed under a regulation, as if the interim administrator were the local government.

(6)The Governor in Council may direct a local government for which an interim administrator is appointed to pay to the Minister an amount specified in the direction for the costs and expenses of the interim administrator.—

(a)the interim administrator; and

(b)an advisory committee mentioned in subsection (10); and

(c)a committee appointed for the interim administrator under chapter 6, part 7.

(7)The specified amount may include the salary and allowances payable to an officer of the public service who is appointed as interim administrator.

(8)The direction may specify a time for payment.

(9)The specified amount is a debt payable to the State.

(10)The Minister may create an advisory committee to give the interim administrator advice about the performance of the local government’s responsibilities.

125What this division is about

(1)This division is about the powers that may be used by an authorised person.

(2)An authorised person is a person who is appointed under this Act to ensure that members of the public comply with the Local Government Acts.

Note—

See chapter 6, part 6 for more information about the appointment of authorised persons.

(3)The powers of an authorised person include the power, in certain circumstances—

(a)to ask a person for their name and address; and

(b)to enter a property, including private property.

(4)Private property is a property that is not a public place.

(5)A public place is a place, or that part of a place, that—

(a)is open to the public; or

(b)is used by the public; or

(c)the public is entitled to use;

whether or not on payment of money.

Example—

A person uses a room at the front of their home as a business office. While the business office is open to the public it is a public place. However, the home is private property and not part of the public place.

(6)An occupier of a property includes a person who reasonably appears to be the occupier of, or in charge of, the property.

(7)Force must not be used to enter a property under this division, other than when the property is entered under a warrant that authorises that use of force.

126Producing authorised person’s identity card

(1)An authorised person may exercise a power under this division, in relation to a person, only if the authorised person—

(a)first produces his or her identity card for the person to inspect; or

(b)has his or her identity card displayed so it is clearly visible to the person.

(2)However, if for any reason it is not practicable to comply with subsection (1), the authorised person must produce the identity card for the person’s inspection at the first reasonable opportunity.

127Power to require a person’s name and address

(1)This section applies if an authorised person—

(a)finds a person committing an infringement notice offence; or

(b)finds a person in circumstances that lead the authorised person to suspect, on reasonable grounds, that the person has just committed an infringement notice offence; or

(c)has information that leads the authorised person to suspect, on reasonable grounds, that a person has just committed an infringement notice offence.

(2)An infringement notice offence is an offence prescribed under the State Penalties Enforcement Act 1999 to be an infringement notice offence.

(3)The authorised person may require the person to state the person’s name and address.

(4)If the authorised person does so, the authorised person must also warn the person that it is an offence to fail to state the person’s name and address, unless the person has a reasonable excuse.

(5)The authorised person may require the person to give evidence of the person’s name or address if the authorised person suspects, on reasonable grounds, that the person has given a false name or address.

(6)The person must comply with an authorised person’s requirement under subsection (3) or (5), unless the person has a reasonable excuse.

Maximum penalty—35 penalty units.

(7)However, the person does not commit an offence under subsection (6), if the person is not proved to have committed the infringement notice offence.

128Entering a public place that is open without the need for permission

(1)This section applies if an authorised person wants to enter a public place to ensure that the public place complies with the Local Government Acts.

(2)The authorised person may enter the public place, without the permission of the occupier of the place, if the place is not closed to the public (by a locked gate, for example).

129Entering private property with, and in accordance with, the occupier’s permission

(1)An authorised person may enter private property, that is not closed to entry by the public (by a locked gate, for example), in order to ask the occupier of the property for permission to stay on the property and exercise powers under a Local Government Act.

(2)When asking the occupier for permission, the authorised person must inform the occupier—

(a)of the purpose of entering the property; and

(b)that any thing or information that the authorised person finds on the property may be used as evidence in court; and

(c)that the occupier is not obliged to give permission.

(3)If the occupier gives permission, the authorised person may ask the occupier to sign a document that confirms that the occupier has given permission.

(4)The document must state—

(a)that the authorised person informed the occupier—

(i)of the purpose of entering the property; and

(ii)that any thing or information that the authorised person finds on the property may be used as evidence in court; and

(iii)that the occupier was not obliged to give the permission; and

(b)that the occupier gave the authorised person permission to enter the property and exercise powers under a Local Government Act; and

(c)the date and time when the occupier gave the permission.

(5)If the occupier signs the document, the authorised person must immediately give a copy of the document to the occupier.

(6)If, in any proceedings—

(a)a question arises as to whether the occupier of a property gave permission to allow an authorised person to stay on the property under this Act; and

(b)a document that confirms the occupier gave permission is not produced in evidence;

the court may assume that the occupier did not give the permission, unless the contrary is proved.

(7)If the occupier gives permission, the authorised person may stay on the property and exercise the powers that the occupier has agreed to be exercised on the property.

(8)However, the right to stay on the property—

(a)is subject to any conditions that the occupier imposes (including about the times when the property may be entered, for example); and

(b)may be cancelled by the occupier at any time.

130Entering private property with, and in accordance with, a warrant

(1)An authorised person may enter private property with, and in accordance with, a warrant.

(2)An authorised person must apply to a magistrate for a warrant.

(3)The application for the warrant must—

(a)be in the form approved by the department’s chief executive; and

(b)be sworn; and

(c)state the grounds on which the warrant is sought.

(4)The magistrate may refuse to consider the application until the authorised person gives the magistrate all the information that the magistrate requires about the application, in the way that the magistrate requires.

Example—

The magistrate may require additional information in support of the application to be given by statutory declaration.

(5)The magistrate may issue the warrant only if the magistrate is satisfied that there are reasonable grounds for suspecting—

(a)there is a particular thing or activity that may provide evidence of an offence against a Local Government Act (the evidence); and

(b)the evidence is at the place, or may be at the place within the next 7 days.

(6)The warrant must state—

(a)the evidence for which the warrant is issued; and

(b)that the authorised person may, with necessary and reasonable help and force, enter the property and exercise an authorised person’s powers under this Act; and

(c)the hours of the day or night when the property may be entered; and

(d)the day (within 14 days after the warrant’s issue) when the warrant ends.

(7)The magistrate must keep a record of the reasons for issuing the warrant.

(8)A warrant is not invalidated by a defect in the warrant, or in compliance with section 131, unless the defect affects the substance of the warrant in a material particular.

(9)As soon as an authorised person enters private property under a warrant, the authorised person must do, or make a reasonable attempt to do, the following things—

(a)inform any occupier of the property—

(i)of the reason for entering the property; and

(ii)that the warrant authorises the authorised person to enter the property without the permission of the occupier;

(b)give any occupier a reasonable opportunity to allow the authorised person to immediately enter the property without using force.

(10)However, the authorised person does not need to comply with subsection (9) if the authorised person believes that immediate entry to the property is required to ensure the warrant is effectively executed.

131Warrants—applications made electronically

(1)An authorised person may make an electronic application for a warrant if the authorised person considers it necessary because of—

(a)urgent circumstances; or

(b)special circumstances (including the authorised person’s remote location, for example).

(2)An electronic application is an application made by phone, fax, radio, email, videoconferencing or another form of electronic communication.

(3)The authorised person must prepare an application for the warrant that states the grounds on which the warrant is sought, before applying for the warrant.

(4)However, the authorised person may apply for the warrant before the application is sworn.

(5)The magistrate may issue the warrant only if the magistrate is satisfied that—

(a)it was necessary to make the application electronically; and

(b)the way that the application was made was appropriate in the circumstances.

(6)If the magistrate issues the warrant, and it is reasonably practicable to send a copy of the warrant to the authorised person (by fax or email, for example), the magistrate must immediately do so.

(7)If it is not reasonably practicable to send a copy of the warrant to the authorised person—

(a)the magistrate must—

(i)inform the authorised person of the date and time when the magistrate signed the warrant; and

(ii)inform the authorised person of the terms of the warrant; and

(b)the authorised person must write on a warrant form—

(i)the magistrate’s name; and

(ii)the date and time when the magistrate signed the warrant; and

(iii)the terms of the warrant.

(8)The copy of the warrant sent to the authorised person, or the warrant form properly completed by the authorised person, authorises the authorised person to enter the property, and to exercise the powers, mentioned in the warrant that was signed by the magistrate.

(9)The authorised person must, at the first reasonable opportunity, send the magistrate—

(a)the sworn application; and

(b)if the authorised person completed a warrant form—the completed warrant form.

(10)When the magistrate receives those documents, the magistrate must attach them to the warrant that was signed by the magistrate, and give the warrant to the clerk of the court.

(11)Unless the contrary is proven, a court must presume that a power exercised by an authorised person was not authorised by a warrant issued under this section if—

(a)a question arises, in any proceedings before the court, whether the exercise of power was authorised by a warrant; and

(b)the warrant is not produced in evidence.

132Entering under an application, permit or notice

(1)This section applies if an authorised person wants to enter a property—

(a)to inspect the property in order to process an application made under any Local Government Act; or

(b)to inspect a record that is required to be kept for a budget accommodation building under the Building Act, chapter 7; or

(c)to find out whether the conditions on which a permit or notice was issued have been complied with; or

(d)to inspect work that is the subject of, or was carried out under, a permit or notice.

(2)A permit is an approval, authorisation, consent, licence, permission, registration or other authority issued under any Local Government Act.

(3)A notice is a notice issued under any Local Government Act.

(4)The authorised person may enter the property without the permission of the occupier of the property—

(a)at any reasonable time during the day; or

(b)at night, if—

(i)the occupier of the property asks the authorised person to enter the property at that time; or

(ii)the conditions of the permit allow the authorised person to enter the property at that time; or

(iii)the property is a public place and is not closed to the public.

(5)However, the authorised person—

(a)must, as soon as the authorised person enters the property, inform any occupier of the property—

(i)of the reason for entering the property; and

(ii)that the authorised person is authorised under this Act to enter the property without the permission of the occupier; and

(b)may enter a home that is on the property only if the occupier of the relevant part of the property accompanies the authorised person.

133Entering property under an approved inspection program

(1)An authorised person may enter a property (other than a home on the property) without the permission of the occupier of the property, at any reasonable time of the day or night, under an approved inspection program.

(2)An approved inspection program is a program, approved by a local government, under which an authorised person may enter and inspect properties in the local government area to ensure the Local Government Acts are being complied with.

Example of an approved inspection program—

a program to ensure that swimming pools are fenced in accordance with a local law

(3)The local government must give, or must make a reasonable attempt to give, the occupier of the property a notice that informs the occupier of the following—

(a)the local government’s intention to enter the property;

(b)the reason for entering the property;

(c)an estimation of when the property will be entered.

Example—

A local government may give the notice to an occupier of a property by dropping a flyer in the letterbox for the property.

(4)The local government must give, or make a reasonable attempt to give, the notice to the occupier within a reasonable time before the property is to be entered.

(5)The authorised person—

(a)must, as soon as the authorised person enters the property, inform any occupier of the property—

(i)of the reason for entering the property; and

(ii)that the authorised person is authorised under this Act to enter the property without the permission of the occupier; and

(b)may enter a budget accommodation building on the property only to monitor compliance with the Building Act, chapter 7.

134Approving an inspection program

(1)A local government may, by resolution, approve the following types of inspection programs—

(a)a systematic inspection program;

(b)a selective inspection program.

(2)A systematic inspection program allows an authorised person to enter and inspect all properties, or all properties of a certain type, in the local government area.

(3)A selective inspection program allows an authorised person to enter and inspect those properties in the local government area that have been selected in accordance with objective criteria specified in the resolution.

(4)The resolution must state—

(a)the purpose of the program; and

(b)when the program starts; and

(c)for a systematic inspection program that allows a type of property to be entered and inspected—a description of the type of property; and

(d)for a selective inspection program—the objective criteria for selecting the properties to be entered and inspected; and

(e)the period (of not more than 3 months or another period prescribed under a regulation) over which the program is to be carried out.

(5)The local government must give the public notice of the approval of an inspection program, at least 14 days, but not more than 28 days, before the approved inspection program starts.

(6)The notice must be published—

(a)in a newspaper that is circulating generally in the local government area; and

(b)on the local government’s website.

(7)The notice must state the following—

(a)the name of the local government;

(b)the purpose and scope of the program, in general terms;

(c)when the program starts;

(d)the period over which the program is to be carried out;

(e)that the public may inspect a copy of the resolution that approved the program at the local government’s public office until the end of the program;

(f)that a copy of the resolution that approved the program may be purchased at the local government’s public office until the end of the program;

(g)the price of a copy of the resolution that approved the program.

(8)The price of a copy of the resolution that approved the program must be no more than the cost to the local government of making the copy available for purchase.

(9)From the time when the notice is published in the newspaper until the end of the program—

(a)the public may inspect a copy of the resolution that approved the program at the local government’s public office; and

(b)copies of the resolution that approved the program must be available for purchase at the local government’s public office at the price stated in the notice.

134AEntry by authorised person, at reasonable times, to inspect regulated pools

(1)At all reasonable times, an authorised person may enter a property (other than a home on the property) without permission of the occupier of the property to inspect a regulated pool, and barriers or fencing for the pool, for compliance with—

(a)if, under the Building Act, the owner of the pool must ensure the pool complies with the pool safety standard or a part of the standard—the pool safety standard or part; or

(b)if paragraph (a) does not apply—a provision of a law that regulates—

(i)the construction or maintenance of barriers or fencing for the pool; or

(ii)another matter relating to the safety of persons using the pool.

(2)However, the authorised person must, as soon as the authorised person enters the property—

(a)inform any occupier of the property—

(i)of the reason for entering the property; and

(ii)that the authorised person is authorised under this Act to enter the property without the permission of the occupier; and

(b)produce his or her identity card for the occupier of the property to inspect.

(3)In this section—

pool safety standard see the Building Act, section 231D.

135General powers after entering a property

(1)This section explains the powers that an authorised person has after entering a property, other than entering a property—

(a)to ask the occupier of the property for permission to stay on the property; or

(b)under section 132, 133 or 134A.

(2)The authorised person may—

(a)search any part of the property; or

(b)inspect, test, photograph or film anything that is in or on the property; or

(c)copy a document that is in or on the property; or

(d)take samples of or from anything that is in or on the property; or

(e)take into or onto the property any persons, equipment and materials that the authorised person reasonably requires for exercising the authorised person’s powers; or

(f)require the occupier of the property, or a person in or on the property, to give the authorised person reasonable help to exercise the authorised person’s powers under paragraphs (a) to (e).

(3)An authorised person may exercise a power under subsection (2) only if exercising the power is necessary for the purpose related to the entry of the property.

(4)If a person is required to give reasonable help under subsection (2)(f), the person must comply with the requirement, unless the person has a reasonable excuse.

Maximum penalty—8 penalty units.

(5)If the requirement is to be complied with by the person giving information or producing a document, it is a reasonable excuse for the person to fail to comply with the requirement if complying with the requirement might incriminate the person.

136Authorised person to give notice of damage

(1)This section applies if—

(a)something is damaged by—

(i)an authorised person, when the authorised person exercises a power under this division; or

(ii)a person who is authorised by an authorised person to take action under this division, when the person takes the action; or

(b)the authorised person considers, on reasonable grounds, that the damage is more than trivial damage.

(2)The authorised person must immediately give notice of the particulars of the damage to the person who appears to be the owner of the thing that was damaged.

(3)However, if for any reason it is not practicable to do so, the authorised person must leave the notice, in a reasonably secure way and in a conspicuous position, at the place where the thing was damaged.

(4)The owner of a thing includes a person in possession or control of the thing.

(5)If the authorised person believes the damage was caused by a latent defect in the thing, or other circumstances beyond the authorised person’s control, the authorised person may state that in the notice.

137Compensation for damage or loss caused after entry

(1)If a person incurs damage or loss because of the exercise, or purported exercise, of a power under this division, the local government must pay the person compensation.

(2)The compensation equals—

(a)the amount agreed between the person and local government; or

(b)if the person and local government can not agree, the amount that is decided by a court.

(3)The person may claim the compensation in—

(a)any proceedings for compensation; or

(b)any proceedings brought against the person for an offence against any Local Government Act.

(4)A court may order compensation to be paid only if the court is satisfied it is just to do so in all the circumstances.

(5)A regulation may prescribe matters that may, or must, be taken into account by the court when considering whether it is just to make the order.

(6)The court may make any order about costs that the court considers just.

138What this division is about

(1)This division is about the powers that may be used—

(a)to enable a local government to perform its responsibilities; or

(b)to ensure that a person complies with this Act, and the other Local Government Acts, including by complying with a remedial notice.

(2)This division explains the circumstances in which a person is authorised to enter a property under this division, namely—

(a)in a potentially dangerous situation, to take urgent action; or

(b)to take action in relation to local government facilities on the property (including water or sewerage pipes, for example); or

(c)with (and in accordance with) the permission of the occupier of the property; or

(d)with (and in accordance with) a court order; or

(e)with (and in accordance with) a reasonable entry notice.

(3)The following persons may enter a property under this division—

(a)if the occupier of the property is not the owner of the property—the owner or the owner’s employee;

(b)a local government worker.

(4)A local government worker is an employee, or agent, of the local government who is authorised by the local government to act under this division.

Note—

Not every employee or agent of the local government would ordinarily be authorised to act under this division.

(5)However, the local government may authorise an employee or agent to act under this division only if the employee or agent is appropriately qualified or trained to exercise a power or perform a responsibility under this division.

(6)Force must not be used to enter a property under this division, unless the property is entered under a court order that specifically authorises the use of that force.

138AA Notices for this division

(1)A remedial notice is a notice that requires the owner or occupier of a property to take action under a Local Government Act in relation to the property (including fencing a pool, for example).

(2)A remedial notice may only be given by a local government to the person who, under a Local Government Act, is required to take the action stated in the notice.

(3)A reasonable entry notice is a notice about a proposed entry of a property that—

(a)informs the owner or occupier of the property of—

(i)who is to enter the property; and

(ii)the reason for entering the property; and

(iii)the days and times when the property is to be entered; and

(b)is given to the owner or occupier of the property at least 7 days before the property is proposed to be entered.

(4)A remedial notice and a reasonable entry notice may not be combined unless—

(a)the owner of the property is also the occupier of the property; or

(b)the occupier of the property is the person who, under a Local Government Act, is required to take the action stated in the remedial notice.

(5)A notice given under this division in contravention of this section is of no effect.

138AIdentity card for use under this division

(1)A local government is not required to give a local government worker an identity card unless the worker is exercising a power of entry under this division.

(2)This section does not stop a single identity card being issued to a person for this Act and for another purpose.

(3)A person who stops being a local government worker must return the person’s identity card to the local government within 21 days after stopping being a local government worker, unless the person has a reasonable excuse.

Maximum penalty for subsection (3)—10 penalty units.

139Entry with, and in accordance with, permission of occupier

(1)Any person may enter a property with the permission of the occupier of the property.

(2)However, the right to enter the property—

(a)is subject to any conditions that the occupier imposes (including about the times when the property may be entered, for example); and

(b)may be cancelled by the occupier at any time.

140Entry by an owner, with reasonable entry notice, under a remedial notice

(1)This section applies if—

(a)a local government gives a remedial notice to the owner of a property; and

(b)the owner is not the occupier of the property.

(2)After the owner gives a reasonable entry notice to the occupier of the property, the owner or the owner’s agent may—

(a)enter the property at the times stated in the reasonable entry notice; and

(b)take the action that is required under the remedial notice.

(3)If the occupier asks to inspect the remedial notice, the owner must allow the occupier to inspect the remedial notice.

(4)This section does not affect any rights that the owner has apart from this section.

141Occupier may discharge owner’s obligations

(1)This section applies if—

(a)the owner of a property fails—

(i)to take the action in relation to the property that is required under a remedial notice; or

(ii)to pay money that is payable in relation to the property under a Local Government Act (including rates, for example); and

(b)the occupier of the property is not the owner of the property.

(2)The occupier of the property may—

(a)take the action that is required, and recover the amount that the occupier properly and reasonably incurs in taking the action as a debt payable by the owner; or

(b)pay the money that is payable, and recover the money as a debt payable by the owner.

(3)For example, if the occupier is the owner’s tenant, the occupier may deduct the money from any rent that the occupier owes the owner, without being in breach of the tenancy agreement.

142Entry by a local government worker, with reasonable entry notice, under a remedial notice

(1)This section applies if—

(a)a local government gives a remedial notice to the owner or the occupier of a property (the responsible person); and

(b)the responsible person fails to take the action required under the remedial notice.

(2)After giving a reasonable entry notice to the occupier of the property, a local government worker may—

(a)enter the property (other than a home on the property) without the permission of the occupier; and

(b)take the action that is required under the remedial notice.

(3)However, the local government worker must, as soon as the local government worker enters the property—

(a)inform any occupier of the property—

(i)of the reason for entering the property; and

(ii)that the local government worker is authorised under this Act to enter the property without the permission of the occupier; and

(b)produce his or her identity card for the occupier of the property to inspect.

(4)The local government may recover the amount that the local government properly and reasonably incurs in taking the action as a debt payable by the person who failed to take the action.

(5)Interest is payable on the debt at the same rate that interest is payable on overdue rates levied by the local government.

(6)The local government must give the person who failed to take the action notice of the amount of the debt.

(7)Subsection (8) applies if the person who failed to take the action is the owner of the property.

(8)If the debt is not paid within 30 days after the date of the notice, the local government may recover the debt as if the debt were overdue rates.

143Entry by a local government worker, with reasonable entry notice, to take materials

(1)This section applies if, in the circumstances, a local government has no other reasonably practicable way of obtaining materials other than by removing the materials from relevant land.

(2)Relevant land means land, other than protected land, that is—

(a)within the local government area; or

(b)if the local government has the written approval of the Minister, under section 9(4)(b)(i), to exercise its powers outside its local government area—outside its local government area; or

(c)if the local government may exercise a power in another local government’s area for the purpose of a joint government activity—within the other local government’s area.

(3)Protected land is land that is—

(a)the site of, or curtilage around, a home or other structure; or

(b)a court, lawn, park, planted walk or avenue or yard; or

(c)under cultivation (including a garden, nursery or plantation, for example); or

(d)a state forest or timber reserve under the Forestry Act; or

(e)a protected area under the Nature Conservation Act 1992; or

(f)the wet tropics area under the Wet Tropics World Heritage Protection and Management Act 1993.

(4)After giving a reasonable entry notice to the owner and the occupier of the rateable land, a local government worker may—

(a)enter the land without the permission of the occupier of the land; and

(b)search for materials that the local government requires to perform its responsibilities; and

(c)remove the materials from the land.

Example—

A local government may remove dirt from the land for use in mopping up an oil spill on a neighbouring road to prevent the oil entering a stormwater drain.

(5)However, the local government worker must, as soon as the local government worker enters the property—

(a)inform any occupier of the property—

(i)of the reason for entering the property; and

(ii)that the local government worker is authorised under this Act to enter the property without the permission of the occupier; and

(b)produce his or her identity card for the occupier of the property to inspect.

(6)The local government worker must not search for, or remove materials from, within 50m of any structure or works on the land (including a home, bridge, dam or wharf, for example).

144Entry by a local government worker, at reasonable times, to repair etc. facilities

(1)At all reasonable times, a local government worker may enter a property (other than a home on the property) without the permission of the occupier of the property—

(a)to investigate the future installation of local government facilities on, over or under the property; or

(b)to install local government facilities on, over or under the property; or

(c)to inspect, maintain, operate, repair, replace or remove local government facilities, that are on, over or under the property, for their routine operations.

(2)Local government facilities are facilities that are installed by a local government (including sewerage pipes, for example).

(3)However, the local government worker must, as soon as the local government worker enters the property—

(a)inform any occupier of the property—

(i)of the reason for entering the property; and

(ii)that the local government worker is authorised under this Act to enter the property without the permission of the occupier; and

(b)produce his or her identity card for the occupier of the property to inspect.

145Entry by a local government worker, at any time, for urgent action

(1)A local government worker may enter a property (other than a home on the property), at any time without the permission of the occupier of the property, in a potentially dangerous situation to take urgent action for local government purposes.

Example—

A local government worker may enter a property to cut down a tree that was blown over in a storm and is in danger of falling and injuring someone or damaging property.

(2)However, the local government worker must, as soon as reasonably practicable after the local government worker enters the property—

(a)inform any occupier of the property—

(i)of the reason for entering the property; and

(ii)that the local government worker is authorised under this Act to enter the property without the permission of the occupier; and

(b)produce his or her identity card for the occupier of the property to inspect.

146Entry with, and in accordance with, a court order

(1)A person may enter a property with, and in accordance with, a court order made under this section.

(2)The person must apply to a magistrate for the court order.

(3)The application must—

(a)be in the form approved by the department’s chief executive; and

(b)be sworn; and

(c)state the grounds on which the court order is sought.

(4)The person must, as soon as practicable, give a copy of the application to—

(a)if the person is not the owner of the property—the owner of the property; and

(b)the occupier of the property.

(5)The magistrate may refuse to consider the application until the person gives the magistrate all the information that the magistrate requires about the application in the way that the magistrate requires.

Example—

The magistrate may require additional information supporting the application to be given by statutory declaration.

(6)If the magistrate is satisfied that entry to the property is necessary to allow the person to take action under any of the Local Government Acts, the magistrate may make the court order.

(7)The court order must—

(a)direct the occupier of the property to allow the person to enter the property and take all action that is necessary under any Local Government Act; and

(b)state the hours of the day or night when the property may be entered; and

(c)state the day (within 14 days after the court order is made) when the court order ends.

(8)If the person who applied for the court order is a local government worker, the court order may authorise the local government worker to use necessary and reasonable help and force to enter the property.

(9)The magistrate must record the reasons for making the court order.

(10)As soon as the person enters the property under the court order, the person must do, or make a reasonable attempt to do, the following things—

(a)inform any occupier of the property—

(i)of the reason for entering the property; and

(ii)that the person is authorised under the court order to enter the property without the permission of the occupier;

(b)if the court order authorises the person to use force to enter the property—give the occupier a reasonable opportunity to allow the person to immediately enter the property without using force.

147Compensation for damage or loss caused

(1)A local government worker who enters a property—

(a)must not cause, or contribute to, damage to any structure or works on the property; and

(b)must take all reasonable steps to ensure that the worker causes as little inconvenience, and does as little other damage, as is practicable in the circumstances.

(2)If a person incurs damage or loss because of the exercise, or purported exercise, of a power under this division (including the loss of the value of materials removed from a property, or the reduction in the value of the property, for example), the local government must pay the person compensation.

(3)The compensation equals—

(a)the amount agreed between the person and local government; or

(b)if the person and local government can not agree, the amount that is decided by a court.

(4)The court may make any order about costs that the court considers just.

148Limitation of time in absence of notice of work done

(1)This section applies if work is done on a property without an approval that is required under a Local Government Act.

(2)For the purposes of any limitation of time for taking any proceedings or doing anything else about the work, the work is taken to have been done when a local government worker first finds out about the work.

148AWhat this part is about

This part is about investigations conducted by the department or a local government into the accuracy of the local government’s registers or records that are required to be kept under this Act.

148BProducing authorised officer’s identity card

(1)This section applies if the department’s chief executive directs an authorised officer to exercise a power under this division.

(2)The authorised officer may exercise the power, in relation to a person, only if the officer—

(a)first produces his or her identity card for the person to inspect; or

(b)has his or her identity card displayed so it is clearly visible to the person.

148CMaking of inquiries for department

(1)This section applies if the department’s chief executive suspects or believes, on reasonable grounds, that information included in a register or record of a local government is incorrect because of an error or omission.

(2)An authorised officer, if directed by the department’s chief executive, may make all inquiries the chief executive considers to be reasonable to find out whether and to what extent the register or record is incorrect.

148DPower to require information or document for department investigation

(1)This section applies if the department’s chief executive suspects or believes, on reasonable grounds, that—

(a)either or both of the following apply—

(i)information included in a register or record of a local government is incorrect because of an error or omission;

(ii)an offence against this Act has been committed relating to a register or record; and

(b)a person—

(i)is able to give information about the error, omission or offence; or

(ii)holds a document relating to the error, omission or offence.

(2)The department’s chief executive or, if directed by the chief executive, an authorised officer may require the person to give the information or produce the document.

(3)When making the requirement, the department’s chief executive or authorised officer must warn the person it is an offence to fail to comply with the requirement unless the person has a reasonable excuse.

(4)The person must comply with the requirement unless the person has a reasonable excuse.

Maximum penalty—40 penalty units.

(5)If the person is an individual, it is a reasonable excuse for failing to comply with the requirement that giving the information or producing the document might tend to incriminate the person.

(6)It is a defence in a prosecution under subsection (4) that the information or document sought by the department’s chief executive or authorised officer is not relevant to the error, omission or offence.

(7)If the person produces the document to the department’s chief executive or authorised officer, the chief executive or officer—

(a)may keep the document to take an extract from it or make a copy of it; and

(b)must return the document to the person as soon as practicable after taking the extract or making the copy.

148EProducing authorised person’s identity card

(1)This section applies if the chief executive officer directs an authorised person to exercise a power under this division.

(2)The authorised person may exercise the power, in relation to another person, only if the authorised person—

(a)first produces his or her identity card for the other person to inspect; or

(b)has his or her identity card displayed so it is clearly visible to the other person.

148FMaking of inquiries for local government

(1)This section applies if the chief executive officer suspects or believes, on reasonable grounds, that information included in a register or record of the local government is incorrect because of an error or omission.

(2)The chief executive officer or, if directed by the chief executive officer, an authorised person may make all inquiries the chief executive officer considers to be reasonable to find out whether and to what extent the register or record is incorrect.

148GPower to require information or document for local government investigation

(1)This section applies if the chief executive officer suspects or believes, on reasonable grounds, that—

(a)either or both of the following apply—

(i)information included in a register or record of the local government is incorrect because of an error or omission;

(ii)an offence against this Act has been committed relating to a register or record; and

(b)a person—

(i)is able to give information about the error, omission or offence; or

(ii)holds a document relating to the error, omission or offence.

(2)The chief executive officer or, if directed by the chief executive officer, an authorised person may require the person to give the information or produce the document.

(3)When making the requirement, the chief executive officer or authorised person must warn the person it is an offence to fail to comply with the requirement unless the person has a reasonable excuse.

(4)The person must comply with the requirement unless the person has a reasonable excuse.

Maximum penalty—40 penalty units.

(5)If the person is an individual, it is a reasonable excuse for failing to comply with the requirement that giving the information or producing the document might tend to incriminate the person.

(6)It is a defence in a prosecution under subsection (4) that the information or document sought by the chief executive officer or authorised person is not relevant to the error, omission or offence.

(7)If the person produces the document to the chief executive officer or authorised person, the chief executive or authorised person—

(a)may keep the document to take an extract from it or make a copy of it; and

(b)must return the document to the person as soon as practicable after taking the extract or making the copy.

148HReferral to department

(1)This section applies if, because of inquiries made under this division, the chief executive officer concludes on reasonable grounds that an offence has been committed under this Act relating to a register or record.

(2)The chief executive officer must report the chief executive officer’s conclusion, including the reasons for the conclusion, to the department’s chief executive.

(3)Subsection (2) does not limit any duty the chief executive officer may have under the Crime and Corruption Act 2001 to notify the Crime and Corruption Commission of any complaint, information or matter that the chief executive officer reasonably suspects involves, or may involve, corrupt conduct under that Act.

148IChief executive officer not subject to direction

The chief executive officer is not subject to direction by the mayor in acting under this division.

149Obstructing local government officials

(1)A person must not obstruct a local government official in the exercise of a power under this Act or a local law, unless the person has a reasonable excuse.

Maximum penalty—50 penalty units.

(2)A local government official is any of the following persons—

(a)the mayor;

(b)the chief executive officer;

(c)an authorised person.

(3)A person must not obstruct a local government worker in the exercise of a power under part 2, division 2, unless the person has a reasonable excuse.

Maximum penalty—50 penalty units.

Notes—

1Local government workers are only those employees and agents of a local government who are authorised to act under chapter 5, part 2, division 2.

2In particular circumstances a local government worker may enter a property and carry out work or obtain materials in compliance with chapter 5, part 2, division 2.

(4)If a person has obstructed a local government official or local government worker and the official or worker decides to proceed with the exercise of the power, the official or worker must warn the person that—

(a)it is an offence to obstruct the official or worker, unless the person has a reasonable excuse; and

(b)the official or worker considers the person’s conduct an obstruction.

(5)A person must not pull down, damage, deface or destroy a board or anything else that is displaying a local law, order, notice or other matter authorised by a local government.

Maximum penalty for subsection (5)—35 penalty units.

150Impersonating authorised persons

A person must not pretend to be an authorised person.

Maximum penalty—50 penalty units.

150ADuty to make documents available

A person who has charge of a document owned or held by a local government must not obstruct the viewing or copying of the document by another person who is authorised to view or copy the document under this Act.

Maximum penalty—10 penalty units.

150B Overview of chapter

(1)This chapter is about—

(a)setting appropriate standards for the behaviour of councillors; and

(b)dealing with the conduct of councillors at local government meetings that does not meet the standards; and

(c)investigating and dealing with complaints about the conduct of councillors; and

(d)disciplinary action that may be taken against councillors who engage in inappropriate conduct or misconduct; and

(e)the entities that investigate and deal with complaints about the conduct of councillors.

(2)This chapter provides—

(a)that the conduct of councillors at local government meetings that does not meet appropriate standards of behaviour is generally to be dealt with by the chairperson of the meeting; and

(b)that complaints about the conduct of councillors are to be made, or referred, to the assessor for investigation; and

(c)that the assessor, after investigating a councillor’s conduct—

(i)may refer the suspected inappropriate conduct of a councillor to the local government to be dealt with; or

(ii)may apply to the conduct tribunal to decide—

(A)whether the councillor engaged in misconduct, or inappropriate conduct that is connected to misconduct; and

(B)if the conduct tribunal decides the councillor engaged in misconduct or inappropriate conduct, the action to be taken to discipline the councillor; and

(d)that the assessor is to notify the Crime and Corruption Commission about suspected corrupt conduct as required under the Crime and Corruption Act 2001.

150C Definitions for chapter

In this chapter—

assessor means the Independent Assessor appointed under section 150CV.

behavioural standard means a standard of behaviour for councillors set out in the code of conduct approved under section 150E.

conduct includes—

(a)failing to act; and

(b)a conspiracy, or attempt, to engage in conduct.

inappropriate conduct see section 150K.

investigation policy, of a local government, see section 150AE(1).

local government includes the Brisbane City Council.

local government meeting means a meeting of—

(a)a local government; or

(b)a committee of a local government.

misconduct see section 150L.

model procedures see section 150F.

referral notice see section 150AC.

unsuitable meeting conduct see section 150H.

150D Minister to make code of conduct

(1)The Minister must make a code of conduct that sets out the standards of behaviour for councillors in performing their functions as councillors under this Act or the City of Brisbane Act 2010.

Notes—

1See section 4 which requires the Minister, in making a code of conduct under this section, to do so in a way that is consistent with, and provides results that are consistent with, the local government principles. See also section 150CAA in relation to the application of the local government principles.

2Also, see the obligations imposed on councillors under chapter 6, part 2, division 5 which apply to councillors in performing their functions as councillors under this Act.

2Also, see the obligations imposed on councillors under chapter 6, part 2, division 5 or the City of Brisbane Act 2010, chapter 6, part 2, division 5 which apply to councillors in performing their functions as councillors under this Act or the City of Brisbane Act 2010.

(2)The code of conduct may also contain anything the Minister considers necessary for, or incidental to, the standards of behaviour.

150E Approval and publication of code of conduct

(1)The code of conduct does not take effect until it is approved by a regulation.

(2)The approved code of conduct must be—

(a)tabled in the Legislative Assembly with the regulation approving the code; and

(b)published on the department’s website.

150F Department’s chief executive to make model procedures

(1)The department’s chief executive must make procedures (the model procedures) for the conduct of meetings of a local government and its committees.

(2)Without limiting subsection (1), the model procedures must state—

(a)how the chairperson of a local government meeting may deal with a councillor’s unsuitable meeting conduct; and

(b)how the suspected inappropriate conduct of a councillor referred to the local government by the assessor must be dealt with at a local government meeting.

(3)The department’s chief executive must publish the model procedures on the department’s website.

150G Adopting meeting procedures

(1)A local government must either—

(a)adopt the model procedures; or

(b)prepare and adopt other procedures for the conduct of its meetings and meetings of its committees.

(2)If the local government prepares and adopts procedures under subsection (1)(b)—

(a)the procedures must not be inconsistent with the model procedures; and

(b)if there is an inconsistency, the local government is taken to have adopted the model procedures to the extent of the inconsistency.

150H What is unsuitable meeting conduct

The conduct of a councillor is unsuitable meeting conduct if the conduct—

(a)happens during a local government meeting; and

(b)contravenes a behavioural standard.

150I Chairperson may deal with unsuitable meeting conduct

(1)This section applies if, at a local government meeting, the chairperson of the meeting reasonably believes the conduct of a councillor during the meeting is unsuitable meeting conduct.

(2)The chairperson may make 1 or more of the following orders—

(a)an order reprimanding the councillor for the conduct;

(b)an order requiring the councillor to leave the place at which the meeting is being held, including any area set aside for the public, and stay away from the place for the rest of the meeting;

(c)if the councillor fails to comply with an order to leave and stay away from the place—an order that the councillor be removed from the place.

(3)If the chairperson makes an order under subsection (2), the chairperson must ensure details of the order are recorded in the minutes of the meeting or, if minutes are not required for the meeting, in another way prescribed by regulation.

Note—

See also sections 150DX and 150DY about recording orders made by the chairperson of a local government meeting under this section in the councillor conduct register.

150J Unsuitable meeting conduct that becomes inappropriate conduct

If the conduct of a councillor at a local government meeting is inappropriate conduct under section 150K(2), the local government—

(a)is not required to notify the assessor about the conduct; and

(b)may deal with the conduct under section 150AG.

150K What is inappropriate conduct

(1)The conduct of a councillor is inappropriate conduct if the conduct contravenes—

(a)a behavioural standard; or

(b)a policy, procedure or resolution of the local government.

(2)Also, the conduct of a councillor is inappropriate conduct if—

(a)the conduct contravenes an order of the chairperson of a local government meeting for the councillor to leave and stay away from the place at which the meeting is being held; or

(b)it is part of a course of conduct at local government meetings leading to orders for the councillor’s unsuitable meeting conduct being made on 3 occasions within a period of 1 year.

(3)For subsection (2)(b), the conduct that led to the orders being made, taken together, is the inappropriate conduct.

(4)However, inappropriate conduct does not include conduct that is—

(a)unsuitable meeting conduct, to the extent the conduct is not conduct mentioned in subsection (2); or

(b)misconduct; or

(c)corrupt conduct.

150L What is misconduct

(1)The conduct of a councillor is misconduct if the conduct—

(a)adversely affects, directly or indirectly, the honest and impartial performance of the councillor’s functions, or the exercise of the councillor’s powers; or

(b)is or involves—

(i)a breach of the trust placed in the councillor, either knowingly or recklessly; or

(ii)a misuse of information or material acquired in, or in connection with, the performance of the councillor’s functions, whether the misuse is for the benefit of the councillor or for the benefit, or to the detriment, of another person; or

(c)contravenes any of the following—

(i)an order of the local government or the conduct tribunal;

(ii)the acceptable requests guidelines of the local government under section 170A or the City of Brisbane Act 2010;

(iii)a policy of the local government about the reimbursement of expenses;

(iv)section 150R(2), 170(3), 171(3) or 175G.

(iv)section 150R(2), 150EK, 150EL, 150EQ, 150EW, 150EZ, 170(3), 171(3), 201A, 201B or 201C;

(v)the City of Brisbane Act 2010, section 170(2), 173(3), 177H, 177I, 177N, 177T, 177W, 198A, 198B or 198C;

(v)the City of Brisbane Act 2010, section 170(2) or 173(3).

(2)Also, the conduct of a councillor is misconduct if the conduct—

(a)is part of a course of conduct leading to the local government deciding to take action under section 150AG to discipline the councillor for inappropriate conduct on 3 occasions within a period of 1 year; or

(b)is of the same type stated in an order of the local government that if the councillor engages in the same type of conduct again, it will be dealt with as misconduct.

(3)For subsection (2)(a), the conduct that led to the 3 occasions of disciplinary action, taken together, is the misconduct.

(4)It does not matter if the conduct happened outside the State.

150M Application to former councillors

(1)This chapter applies in relation to a person who was, but is no longer, a councillor if the person was a councillor when conduct the subject of a complaint or investigation is alleged to have happened.

(2)For subsection (1), a reference in this chapter to a councillor includes a reference to the person.

150N Duty to notify Crime and Corruption Commission about suspected corrupt conduct not affected

To remove any doubt, it is declared that nothing in this part limits the assessor’s duty under section 38 of the Crime and Corruption Act 2001 to notify the Crime and Corruption Commission about suspected corrupt conduct.

150O Complaints about councillor conduct

(1)A person may make a complaint to the assessor about the conduct of a councillor.

(2)The complaint may be made to the assessor orally or in writing.

(3)Subsection (1) does not limit who a person can complain to about the conduct of a councillor.

Examples—

A person may complain to the Crime and Corruption Commission or the department’s chief executive about a councillor’s conduct.

150P Complaints about councillor conduct must be referred to assessor

(1)This section applies if a government entity, other than the assessor, receives a complaint about the conduct of a councillor.

(2)The government entity must—

(a)refer the complaint to the assessor; and

(b)give the assessor all information held by the entity that relates to the complaint.

(3)However, subsection (2) does not apply if—

(a)the government entity has a duty to notify the Crime and Corruption Commission of the complaint under section 38 of the Crime and Corruption Act 2001; or

Note—

Sections 38 to 40 of the Crime and Corruption Act 2001 state the duties of a public official to notify the Crime and Corruption Commission about corrupt conduct, subject to a direction by the Crime and Corruption Commission.

(b)the government entity has the power to investigate the complaint or the councillor’s conduct under another law and decides to carry out the investigation under that law.

Example—

The police service receives and investigates a complaint alleging a councillor engaged in fraud.

(4)As soon as practicable after receiving the complaint, the assessor must, if the assessor has the contact details of the person who made the complaint, give the person a notice that states—

(a)the assessor has received the complaint from the government entity; and

(b)the assessor will deal with the complaint under this chapter.

(5)In this section—

government entity includes the following—

(a)a local government;

(b)a councillor;

(c)the chief executive officer of a local government.;

(d)the chief executive officer under the City of Brisbane Act 2010.

150Q Further information about complaints

(1)This section applies if—

(a)a complaint about the conduct of a councillor was made or referred to the assessor under this division; and

(b)in the assessor’s opinion, the complaint does not include sufficient information for the assessor to properly investigate the conduct; and

(c)the assessor has the contact details of the person who made the complaint.

(2)The assessor may give a notice to the person who made the complaint asking the person to give the assessor further information about the complaint within a stated reasonable period.

(3)The assessor may decide not to investigate the conduct if—

(a)the person does not comply with the notice; or

(b)the person complies with the notice but, in the assessor’s opinion, there is still insufficient information to investigate the conduct.

(4)If the assessor decides not to investigate the conduct under subsection (3), the assessor must give the person who made the complaint a notice that states the assessor has decided not to investigate the conduct because there is insufficient information to do so.

150R Local government official must notify assessor about particular conduct

(1)This section applies if a local government official becomes aware of information indicating a councillor may have engaged in conduct that would be inappropriate conduct or misconduct other than—

(a)conduct mentioned in section 150J; and

(b)by receiving a complaint to which section 150P applies.

(2)The local government official must give the assessor a notice about the councillor’s conduct.

Note—

Contravention of subsection (2) by a councillor is misconduct that could result in disciplinary action being taken against the councillor—see section 150L(1)(c)(iv).

(3)The local government official must not give the notice—

(a)vexatiously; or

(b)other than in good faith.

Maximum penalty—85 penalty units.

(4)In this section—

local government official means—

(a)a councillor; or

(b)the chief executive officer of a local government.; or

(c)the chief executive officer under the City of Brisbane Act 2010.

150S Local government must notify assessor about misconduct

(1)This section applies if a local government—

(a)in relation to a course of conduct by a councillor, decides under section 150AG to take action to discipline the councillor for inappropriate conduct on 3 occasions during a period of 1 year; or

(b)if the local government has previously made an order that a particular type of conduct engaged in by a councillor will be dealt with as misconduct—reasonably suspects the councillor has engaged in the same type of conduct again.

(2)The local government must give the assessor—

(a)a notice about the councillor’s conduct; and

(b)all information held by the local government that relates to the conduct.

150T Assessor must investigate conduct of councillor

(1)The assessor must investigate the conduct of a councillor if the conduct is the subject of—

(a)a complaint made or referred to the assessor under division 2; or

(b)a notice given to the assessor under division 3; or

(c)information given to the assessor under section 150AF(4); or

(d)a referral made to the assessor by the conduct tribunal under section 150DLA; or

(e)a complaint referred to the assessor by the Crime and Corruption Commission.

Note—

The Crime and Corruption Commission may decide, under chapter 2, part 3 of the Crime and Corruption Act 2001, to refer a complaint to the assessor to deal with, whether or not in cooperation with the commission.

(2)However, subsection (1)(a) does not apply if the assessor decided, under section 150Q(3), not to investigate the conduct.

150U Assessor may initiate investigation

(1)This section applies if—

(a)the assessor is aware of information indicating a councillor may have engaged in conduct that would be inappropriate conduct or misconduct; and

Examples—

•a media report alleging a councillor has behaved inappropriately

•while investigating a councillor for alleged misconduct, the assessor receives information that indicates another councillor has engaged in the same conduct

(b)the assessor has not received a complaint about the conduct; and

(c)the assessor reasonably believes—

(i)it is in the public interest to investigate the information; and

(ii)the conduct is not likely to involve corrupt conduct.

(2)The assessor may, on the assessor’s own initiative, investigate the conduct.

150V Investigative powers

(1)The assessor may exercise the assessor’s powers as an investigator under part 4 for an investigation under section 150T or 150U.

(2)Subject to part 4, the assessor may—

(a)conduct an investigation in the way the assessor considers appropriate; and

(b)make any inquiries the assessor considers appropriate.

(3)However, the assessor must conduct the investigation in a way that ensures the investigation is kept confidential to the extent practicable.

150W Decision about conduct

(1)After investigating the conduct of a councillor, the assessor may decide to—

(a)if the conduct was the subject of a complaint made or referred to the assessor under division 2—dismiss the complaint about the conduct under section 150X; or

(b)if the assessor reasonably suspects the councillor’s conduct is inappropriate conduct—refer the suspected inappropriate conduct to the local government to deal with; or

(c)if the assessor is reasonably satisfied the councillor’s conduct is misconduct—make an application to the conduct tribunal about the conduct; or

(d)if the assessor is reasonably satisfied the councillor’s conduct is inappropriate conduct and the conduct is connected to conduct of the councillor that the assessor is reasonably satisfied is misconduct—make an application to the conduct tribunal about the alleged misconduct and inappropriate conduct; or

(e)take no further action in relation to the conduct under section 150Y.

(2)However, if the conduct was referred to the assessor by the conduct tribunal under section 150DLA, the assessor may—

(a)if the assessor is reasonably satisfied the councillor’s conduct is misconduct—make an application to the conduct tribunal about the conduct; or

(b)if the assessor is not reasonably satisfied the councillor’s conduct is misconduct—give the conduct tribunal a notice stating the assessor is not reasonably satisfied the councillor’s conduct is misconduct.

150X Decision to dismiss complaint

The assessor may decide to dismiss a complaint about the conduct of a councillor if the assessor is satisfied—

(a)the conduct—

(i)has already been, or is being, dealt with by another entity; or

(ii)does not constitute inappropriate conduct or misconduct; or

(b)the complaint—

(i)is frivolous or vexatious; or

(ii)was made other than in good faith; or

Examples—

a complaint made for a mischievous purpose, recklessly or maliciously

(iii)lacks substance or credibility; or

(c)dealing with the complaint—

(i)would not be in the public interest; or

(ii)would be an unjustifiable use of resources.

150Y Decision to take no further action

The assessor may decide to take no further action about the conduct of a councillor if—

(a)the conduct was not the subject of a complaint made or referred to the assessor under division 2; and

(b)the assessor is satisfied—

(i)the conduct does not constitute inappropriate conduct or misconduct; or

(ii)there is insufficient information to properly investigate the conduct or form an opinion about whether the conduct is, or may be, inappropriate conduct or misconduct; or

(iii)taking further action would be an unjustifiable use of resources.

150Z Notice about decision to dismiss complaint or take no further action

(1)This section applies if the assessor decides to—

(a)dismiss a complaint about the conduct of a councillor under section 150X; or

(b)take no further action about the conduct of a councillor under section 150Y.

(2)The assessor must give a notice about the decision to—

(a)for a decision to dismiss a complaint—the person who made the complaint, if the assessor has the person’s contact details; and

(b)the councillor; and

(c)the local government.

(3)The notice must—

(a)for a decision to dismiss a complaint—state the date the complaint was made; and

(b)briefly summarise the conduct; and

(c)briefly state the decision and the reasons for the decision; and

(d)for a complaint dismissed because it is frivolous—advise the person who made the complaint that, if the person makes the same or substantially the same complaint to the assessor again, the person commits an offence punishable by a fine of up to 85 penalty units.

Note—

See section 150AU about the offence of making a frivolous complaint.

150AA Notice and opportunity for councillor to respond

(1)This section applies if, under section 150W, the assessor is considering making a decision to—

(a)refer a councillor’s conduct to the local government to be dealt with; or

(b)make an application to the conduct tribunal about a councillor’s conduct.

(2)Before making the decision, the assessor must give a notice to the councillor that—

(a)states the assessor received a complaint, notice or information about the councillor’s conduct or, on the assessor’s own initiative, investigated the councillor’s conduct; and

(b)describes the nature of the conduct; and

(c)states the assessor is considering making a decision to—

(i)refer the conduct to the local government to be dealt with; or

(ii)make an application to the conduct tribunal about the conduct; and

(d)states that the councillor may give a statement or information to the assessor about—

(i)the conduct; and

(ii)why the assessor should not make the decision; and

(e)states the reasonable period in which the councillor may provide the statement or information.

(3)The assessor must consider any statement or information given to the assessor by the councillor under the notice before making a decision under section 150W.

150AB Application of division

This division applies if the assessor—

(a)reasonably suspects a councillor has engaged in inappropriate conduct; and

(b)decides, under section 150W(1)(b), to refer the conduct to the local government to deal with under this division.

150AC Referral of suspected inappropriate conduct

(1)The assessor refers the councillor’s conduct to the local government to deal with by giving a notice (a referral notice) to the local government.

(2)The referral notice must—

(a)include details of the conduct and any complaint received about the conduct; and

(b)state why the assessor reasonably suspects the councillor has engaged in inappropriate conduct; and

(c)include information about the facts and circumstances forming the basis for the assessor’s reasonable suspicion.

(3)The referral notice may be accompanied by a recommendation from the assessor about how the local government may investigate or deal with the conduct, including, for example—

(a)the conduct should be referred to another entity for consideration; or

(b)additional information is required about the conduct; or

(c)the conduct should be dealt with by mediation.

(4)A recommendation made under subsection (3) may be inconsistent with the local government’s investigation policy.

150AD Notice about referral

As soon as practicable after referring the councillor’s conduct to the local government, the assessor must give the councillor a notice that—

(a)states the assessor has referred the councillor’s conduct to the local government to deal with under this division; and

(b)attaches a copy of the referral notice.

150AE Local government must adopt investigation policy

(1)A local government must adopt, by resolution, a policy (an investigation policy) about how it deals with the suspected inappropriate conduct of councillors referred, by the assessor, to the local government to be dealt with.

(2)The policy must—

(a)include a procedure for investigating the suspected inappropriate conduct of councillors; and

(b)state the circumstances in which another entity may investigate the conduct; and

(c)be consistent with the principles of natural justice; and

(d)require councillors and persons who make complaints about councillors’ conduct to be given notice about the outcome of investigations.

(3)The policy may allow the local government to ask the president of the conduct tribunal to—

(a)investigate the conduct of a councillor; and

(b)make recommendations to the local government about dealing with the conduct.

Note—

See section 150DU about paying the costs of a conduct tribunal member.

(4)The policy must be published on the local government’s website.

150AF Investigating suspected inappropriate conduct

(1)The local government must investigate the councillor’s conduct.

(2)The investigation must be conducted—

(a)in a way that is consistent with—

(i)any recommendation of the assessor made under section 150AC(3); and

(ii)to the extent the local government’s investigation policy is not inconsistent with a recommendation of the assessor—the investigation policy; or

(b)in another way the local government, by resolution, decides.

(3)A resolution under subsection (2)(b) must state the decision and the reasons for the decision.

(4)If, in investigating the conduct, the local government obtains information indicating the councillor may have engaged in misconduct, the local government must—

(a)give the information to the assessor for further investigation under division 4; and

(b)take no further action in relation to the conduct.

150AG Decision about inappropriate conduct

(1)After conducting the investigation, the local government must decide—

(a)whether or not the councillor has engaged in inappropriate conduct; and

(b)if the local government decides the councillor has engaged in inappropriate conduct—what action the local government will take under section 150AH to discipline the councillor.

Note—

See section 257(2) or the City of Brisbane Act 2010, section 238(2) which limitslimit delegation of the local government’s power to make decisions under this section.

(2)In deciding what action to take, the local government may consider—

(a)any previous inappropriate conduct of the councillor; and

(b)any allegation made in the investigation that—

(i)was admitted, or not challenged; and

(ii)the local government is reasonably satisfied is true.

150AH Disciplinary action against councillor

(1)For section 150AG(1)(b), the local government may—

(a)order that no action be taken against the councillor; or

(b)make 1 or more of the following orders—

(i)an order that the councillor make a public admission that the councillor has engaged in inappropriate conduct;

(ii)an order reprimanding the councillor for the conduct;

(iii)an order that the councillor attend training or counselling to address the councillor’s conduct, including at the councillor’s expense;

(iv)an order that the councillor be excluded from a stated local government meeting;

(v)an order that the councillor is removed, or must resign, from a position representing the local government, other than the office of councillor;

Example—

The councillor is ordered to resign from an appointment representing the local government on a State board or committee.

(vi)an order that if the councillor engages in the same type of conduct again, it will be treated as misconduct;

(vii)an order that the councillor reimburse the local government for all or some of the costs arising from the councillor’s inappropriate conduct.

(2)However, the local government may not make an order mentioned in subsection (1)(b)(iii), (iv), (v), or (vi) in relation to a person who is no longer a councillor.

150AI Application of division

This division applies if the assessor is reasonably satisfied a councillor has engaged in—

(a)misconduct; or

(b)inappropriate conduct that is connected to conduct of the councillor that the assessor is reasonably satisfied is misconduct.

150AJ Application to conduct tribunal about alleged misconduct

(1)The assessor may apply to the conduct tribunal to decide whether the councillor has engaged in—

(a)misconduct; or

(b)inappropriate conduct that is connected to conduct of the councillor that is alleged misconduct.

(2)The application must—

(a)be in writing; and

(b)include details of the alleged misconduct or inappropriate conduct and any complaint received about the misconduct or inappropriate conduct; and

(c)state why the assessor is reasonably satisfied the councillor has engaged in—

(i)misconduct; or

(ii)misconduct and inappropriate conduct that is connected to the alleged misconduct; and

(d)include information about the facts and circumstances forming the basis for the assessor’s reasonable satisfaction.

(3)The assessor may make an application under subsection (1) about the alleged inappropriate conduct only if the application is also made about the connected alleged misconduct.

150AK Copy of application must be given to councillor

(1)The assessor must—

(a)write on a copy of the application the day, time and place of the hearing of the application; and

(b)give the copy of the application to the councillor.

(2)The assessor must make all reasonable attempts to give the copy of the application to the councillor at least 7 days before the hearing starts.

(3)If the assessor is unable to give the copy of the application to the councillor, the assessor may take other reasonable steps to ensure the councillor is aware of the day, time and place of the hearing, including, for example, by giving the copy to the local government to give to the councillor.

150AL Conduct tribunal must conduct hearing

The conduct tribunal must conduct a hearing about the application.

150AM Constitution of conduct tribunal

The conduct tribunal is to be constituted by—

(a)for hearing a matter about the conduct of a councillor—at least 2, but not more than 3, members of the conduct tribunal chosen by the president; or

(b)for dealing with an administrative or procedural matter related to hearing a matter about the conduct of a councillor—

(i)the president; or

(ii)not more than 3 members of the conduct tribunal chosen by the president.

150AN Role of the assessor

(1)The assessor is a party to the hearing.

(2)The onus of proof is on the assessor to prove the councillor engaged in—

(a)misconduct; and

(b)if the application also relates to alleged inappropriate conduct, inappropriate conduct.

150AO Respondent

The councillor is—

(a)the respondent to the application; and

(b)a party to the hearing.

150AP Conduct of hearing

(1)The hearing must be conducted in the way set out in chapter 7, part 1.

(2)The conduct tribunal may conduct the hearing from the documents brought before the conduct tribunal, without the parties or the witnesses appearing, if—

(a)the conduct tribunal considers it appropriate in all the circumstances; or

(b)the parties agree.

(3)The hearing may be about the conduct of more than 1 councillor, unless the conduct tribunal is satisfied doing so may prejudice the defence of any of the councillors.

(4)The standard of proof in the hearing is the balance of probabilities.

(5)The conduct tribunal must keep a written record of the hearing, in which it records—

(a)the statements of the councillor and all witnesses; and

(b)any reports relating to the councillor that are tendered at the hearing.

150AQ Deciding about misconduct and connected inappropriate conduct

(1)After conducting the hearing, the conduct tribunal must decide—

(a)whether or not the councillor has engaged in—

(i)if the application relates to alleged misconduct and inappropriate conduct—misconduct or inappropriate conduct (or both); or

(ii)if the application relates only to alleged misconduct—misconduct; and

(b)if the conduct tribunal decides the councillor has engaged in misconduct or inappropriate conduct—what action the conduct tribunal will take under section 150AR to discipline the councillor.

(2)In deciding what action to take, the conduct tribunal may consider—

(a)any previous misconduct of the councillor; and

(b)if the application relates to inappropriate conduct—any previous inappropriate conduct of the councillor; and

(c)any allegation made in the hearing that—

(i)was admitted, or not challenged; and

(ii)the conduct tribunal is reasonably satisfied is true.

150AR Disciplinary action against councillor

(1)For section 150AQ(1)(b), the conduct tribunal may decide—

(a)that no action be taken against the councillor; or

(b)to make 1 or more of the following orders or recommendations—

(i)an order that the councillor make a public admission that the councillor has engaged in misconduct or inappropriate conduct (or both);

(ii)an order reprimanding the councillor for the conduct;

(iii)an order that the councillor attend training or counselling to address the councillor’s conduct, including at the expense of the councillor;

(iv)an order that the councillor pay to the local government an amount that is not more than the monetary value of 50 penalty units;

(v)an order that the councillor reimburse the local government for all or some of the costs arising from the councillor’s misconduct or inappropriate conduct (or both);

(vi)an order that the councillor is not to act as the deputy mayor, the chairperson of the council under the City of Brisbane Act 2010 or the chairperson of a committee of the local government for the remainder of the councillor’s term;

(vii)an order that the councillor is not to attend a stated number of local government meetings, up to a maximum of 3 meetings;

(viii)an order that the councillor is removed, or must resign, from a position representing the local government, other than the office of councillor;

Example—

The councillor is ordered to resign from an appointment representing the local government on a State board or committee.

(ix)an order that the councillor forfeit an allowance, benefit, payment or privilege paid or provided to the councillor by the local government;

(x)an order that the councillor is to forfeit, for a stated period, access to equipment or a facility provided to the councillor by the local government;

(xi)a recommendation to the Minister that the councillor be suspended from office for a stated period or from performing particular functions of the office;

Examples of particular functions—

•attending council meetings or offices

•representing the council at public functions

(xii)a recommendation to the Minister that the councillor be dismissed from office.

(2)However, if the conduct tribunal decides under section 150AQ(1)(a)(i) that the councillor has engaged in misconduct and inappropriate conduct, the conduct tribunal, in deciding what action to take, must have regard to the action a local government could have taken under section 150AH in relation to inappropriate conduct.

(3)Also, if the conduct tribunal decides under section 150AQ(1)(a)(i) that the councillor has only engaged in inappropriate conduct, the conduct tribunal may only take the action a local government could have taken under section 150AH in relation to inappropriate conduct.

(4)A recommendation mentioned in subsection (1)(b)(xi) may include a recommendation about the details of the suspension, including, for example, whether the councillor should be remunerated during the period of the suspension.

(5)However, the conduct tribunal may not make an order or recommendation mentioned in subsection (1)(b)(iii) or (vi) to (xii) in relation to a person who is no longer a councillor.

150AS Notices and publication of decisions and orders

(1)This section applies to a decision made by the conduct tribunal—

(a)under section 150AQ(1)(a) about whether or not a councillor has engaged in misconduct or inappropriate conduct (or both); or

(b)to take action mentioned in section 150AR(1)(b) to discipline the councillor for the misconduct or inappropriate conduct (or both).

(2)The conduct tribunal must—

(a)keep a written record of the decision and the reasons for the decision; and

(b)give a notice that states the decision and briefly states the reasons for the decision to—

(i)the assessor; and

(ii)the councillor; and

(iii)the local government; and

(iv)if the conduct tribunal’s decision relates to the conduct of a councillor that was the subject of a complaint and the conduct tribunal has the contact details of the person who made the complaint—the person who made the complaint; and

(c)give a summary of the decision, including the reasons for the decision, to the department’s chief executive for publication on the department’s website.

(3)A notice about a decision, other than a decision to recommend the councillor’s suspension or dismissal, given to the assessor or councillor under subsection (2)(b) must be a QCAT information notice for the decision.

(4)Also, a notice about a decision given to a local government under subsection (2)(b) must include the information about the decision that is required to be included in the councillor conduct register under section 150DY.

(5)The conduct tribunal must not—

(a)give another entity any information that is part of a public interest disclosure under the Public Interest Disclosure Act 2010, unless giving the information is required or permitted by another Act; or

(b)if a decision relates to the conduct of a councillor that was the subject of a complaint—include in a summary of the decision to be published on the department’s website—

(i)the name of the person who made the complaint; or

(ii)information that could reasonably be expected to result in identification of the person.

150AT Review by QCAT

A person who is entitled under section 150AS(3) to be given a QCAT information notice for a decision of the conduct tribunal may apply to QCAT, as provided under the QCAT Act, for a review of the decision.

150AU Frivolous complaint

(1)This section applies to a person who has been given a notice under section 150Z that advises the person that if the person makes the same or substantially the same complaint to the assessor again the person commits an offence.

(2)The person must not make the same or substantially the same complaint to the assessor again, unless the person has a reasonable excuse.

Maximum penalty—85 penalty units.

(3)In this section—

make, a complaint to the assessor, means—

(a)make a complaint to the assessor under section 150O; or

(b)make a complaint to a government entity that is required, under section 150P, to refer the complaint to the assessor; or

(c)cause a complaint to be referred to the assessor.

150AV Other improper complaints

(1)A person must not—

(a)make a complaint about the conduct of a councillor to the assessor—

(i)vexatiously; or

(ii)other than in good faith; or

Examples—

a complaint made for a mischievous purpose, recklessly or maliciously

(b)counsel or procure another person to make a complaint mentioned in paragraph (a) to the assessor.

Maximum penalty—85 penalty units.

(2)In this section—

make, a complaint to the assessor, means—

(a)make a complaint to the assessor under section 150O; or

(b)make a complaint to a government entity that is required, under section 150P, to refer the complaint to the assessor; or

(c)cause a complaint to be referred to the assessor.

150AW Protection from reprisal

(1)A councillor must not take detrimental action against a protected person in reprisal for a complaint or notification about the councillor’s conduct.

Maximum penalty—167 penalty units or 2 years imprisonment.

(2)A councillor takes detrimental action in reprisal for a complaint or notification about the councillor’s conduct if—

(a)the councillor takes, threatens to take, or attempts to take the action because—

(i)a protected person has made, or intends to make, a complaint or notification about the councillor’s conduct; or

(ii)the councillor believes a protected person has made, or intends to make, a complaint or notification about the councillor’s conduct; or

(b)the councillor incites, permits or conspires with another person to take or threaten to take the action for either of those reasons.

(3)In determining whether a councillor takes detrimental action in reprisal, it does not matter whether a reason stated in subsection (2)(a)(i) or (ii) is the only or main reason for taking the action, as long as it is a substantial reason.

(4)An offence against subsection (1) is an indictable offence that is a misdemeanour.

(5)In this section—

notification, about a councillor’s conduct, means a notice about the conduct given under section 150R.

protected person means—

(a)a councillor; or

(b)a local government employee.

150AX Investigators

(1)This part provides for the appointment of investigators and gives investigators particular powers.

(2)The purpose of this part is to ensure the assessor has appropriately qualified persons available to help the assessor perform the assessor’s functions under this chapter.

150AY Functions of investigators

An investigator has the following functions—

(a)to investigate the conduct of councillors under part 3 as directed by the assessor;

(b)to investigate whether an offence has been committed against any of the following provisions (each a conduct provision)—

•section 150R(3), 150AU, 150AV, 150AW, 150BW, 150CA, 150CB, 150CI, 150CJ(3) or 150CK(5)

•section 150EM(2), 150ES(5), 150EY, 171(1), 201D or 201F(2) or (3)

•section 171, 171A(2) or (3), 171B(2), 175C(2), 175E(2) or (5), 175H or 175I(2) or (3)

•section 233A or 233B to the extent the offence involves obstructing or impersonating the assessor, an investigator or a member of the conduct tribunal

•section 234 to the extent the offence involves giving information to the assessor, a staff member of the Office of the Independent Assessor, an investigator or a member of the conduct tribunal;

•the City of Brisbane Act 2010, section 173, 173A(2) or (3) or 173B(2)

•the City of Brisbane Act 2010, section 173(1), 177J(2), 177P(5), 177V, 198D or 198F(2) or (3)

(c)to enforce compliance with the conduct provisions;

(d)to investigate whether an occasion has arisen for the exercise of powers in relation to a conduct provision.

150AZ Assessor is an investigator

(1)The assessor is an investigator for this part.

(2)However, sections 150BB and 150BC do not apply to the assessor.

150BA Appointment and qualifications

(1)The assessor may, by instrument in writing, appoint any of the following persons as investigators—

(a)a staff member of the Office of the Independent Assessor;

(b)a public service employee;

(c)another person prescribed by regulation.

(2)However, the assessor may appoint a person as an investigator only if the assessor is satisfied the person is appropriately qualified.

150BB Appointment conditions and limit on powers

(1)An investigator holds office on the conditions stated in—

(a)the investigator’s instrument of appointment; or

(b)a signed notice given to the investigator; or

(c)a regulation.

(2)The instrument of appointment, a signed notice given to the investigator or a regulation may limit the investigator’s powers.

(3)In this section—

signed notice means a notice signed by the assessor.

150BC When office ends

(1)The office of a person as an investigator ends if—

(a)the term of office stated in a condition of office ends; or

(b)under another condition of office, the office ends; or

(c)the investigator resigns by signed notice given to the assessor.

(2)Subsection (1) does not limit the ways the office of a person as an investigator ends.

(3)In this section—

condition of office means a condition under which the investigator holds office.

150BD Issue of identity card

(1)The assessor must issue an identity card to each investigator.

(2)This section does not prevent the issue of a single identity card to a person for this chapter and other purposes.

150BE Production or display of identity card

(1)In exercising a power in relation to a person in the person’s presence, an investigator must—

(a)produce the investigator’s identity card for the person’s inspection before exercising the power; or

(b)have the identity card displayed so it is clearly visible to the person when exercising the power.

(2)However, if it is not practicable to comply with subsection (1), the investigator must produce the identity card for the person’s inspection at the first reasonable opportunity.

(3)For subsection (1), an investigator does not exercise a power in relation to a person only because the investigator has entered a place as mentioned in section 150BI(1)(b).

150BF Return of identity card

If the office of a person as an investigator ends, the person must return the person’s identity card to the assessor within 21 days after the office ends, unless the person has a reasonable excuse.

Maximum penalty—10 penalty units.

150BG References to exercise of powers

(1)This section applies if—

(a)a provision of this chapter refers to the exercise of a power by an investigator; and

(b)there is no reference to a specific power.

(2)The reference is to the exercise of all or any investigators’ powers under this part or a warrant, to the extent the powers are relevant.

150BH Reference to document includes reference to reproductions from electronic document

A reference in this part to a document includes a reference to an image or writing—

(a)produced from an electronic document; or

(b)not yet produced, but reasonably capable of being produced, from an electronic document, with or without the aid of another article or device.

150BI General power to enter places

(1)An investigator may enter a place if—

(a)an occupier at the place consents under subdivision 2 to the entry and section 150BL has been complied with for the occupier; or

(b)it is a public place and the entry is made when the place is open to the public; or

(c)the entry is authorised under a warrant and, if there is an occupier of the place, section 150BS has been complied with for the occupier.

(2)If the power to enter arose only because an occupier of the place consented to the entry, the power is subject to any conditions of the consent and ceases if the consent is withdrawn.

(3)If the power to enter is under a warrant, the power is subject to the terms of the warrant.

(4)In this section—

public place means a place, or part of a place—

(a)that the public is entitled to use, that is open to members of the public or that is used by the public, whether or not on payment of money; or

Examples of a place that may be a public place under paragraph (a)—

a beach, a park, a road

(b)the occupier of which allows, whether or not on payment of money, members of the public to enter.

Examples of a place that may be a public place under paragraph (b)—

a saleyard, a showground

150BJ Application of subdivision

This subdivision applies if an investigator intends to ask an occupier of a place to consent to the investigator or another investigator entering the place under section 150BI(1)(a).

150BK Incidental entry to ask for access

For the purpose of asking the occupier for the consent, an investigator may, without the occupier’s consent or a warrant—

(a)enter land around premises at the place to an extent that is reasonable to contact the occupier; or

(b)enter part of the place the investigator reasonably considers members of the public ordinarily are allowed to enter when they wish to contact an occupier of the place.

150BL Matters investigator must tell occupier

Before asking for the consent, the investigator must—

(a)explain to the occupier the purpose of the entry, including the powers intended to be exercised; and

(b)tell the occupier that—

(i)the occupier is not required to consent; and

(ii)the consent may be given subject to conditions and may be withdrawn at any time.

150BM Consent acknowledgement

(1)If the consent is given, the investigator may ask the occupier to sign an acknowledgement of the consent.

(2)The acknowledgement must state—

(a)the purpose of the entry, including the powers to be exercised; and

(b)that the occupier has been given an explanation about the purpose of the entry, including the powers to be exercised; and

(c)that the occupier has been told—

(i)that the occupier is not required to consent; and

(ii)that the consent may be given subject to conditions and may be withdrawn at any time; and

(d)that the occupier gives the investigator or another investigator consent to enter the place and exercise the powers; and

(e)the day and time the consent was given; and

(f)any conditions of the consent.

(3)If the occupier signs the acknowledgement, the investigator must immediately give a copy to the occupier.

(4)If—

(a)an issue arises in a proceeding about whether the occupier consented to the entry; and

(b)a signed acknowledgement complying with subsection (2) for the entry is not produced in evidence;

the onus of proof is on the person relying on the lawfulness of the entry to prove the occupier consented.

150BN Application for warrant

(1)An investigator may apply to a magistrate for a warrant for a place.

(2)The investigator must prepare a written application that states the grounds on which the warrant is sought.

(3)The written application must be sworn.

(4)The magistrate may refuse to consider the application until the investigator gives the magistrate all the information the magistrate requires about the application in the way the magistrate requires.

Example—

The magistrate may require additional information supporting the written application to be given by statutory declaration.

150BO Issue of warrant

(1)The magistrate may issue the warrant for the place only if the magistrate is satisfied there are reasonable grounds for suspecting that a particular thing or activity that may provide evidence of an offence against a conduct provision—

(a)is at the place; or

(b)will be at the place within the next 7 days.

(2)The warrant must state—

(a)the place to which the warrant applies; and

(b)that a stated investigator may with necessary and reasonable help and force—

(i)enter the place and any other place necessary for entry to the place; and

(ii)exercise the investigator’s powers; and

(c)particulars of the offence that the magistrate considers appropriate; and

(d)the name of the person suspected of having committed the offence, unless the name is unknown or the magistrate considers it inappropriate to state the name; and

(e)the evidence that may be seized under the warrant; and

(f)the hours of the day or night when the place may be entered; and

(g)the magistrate’s name; and

(h)the day and time of the warrant’s issue; and

(i)the day, within 14 days after the warrant’s issue, the warrant ends.

150BP Electronic application

(1)An application under section 150BN may be made by phone, fax, email, radio, videoconferencing or another form of electronic communication if the investigator reasonably considers it necessary because of—

(a)urgent circumstances; or

(b)other special circumstances, including, for example, the investigator’s remote location.

(2)The application—

(a)may not be made before the investigator prepares the written application under section 150BN(2); but

(b)may be made before the written application is sworn.

150BQ Additional procedure if electronic application

(1)For an application made under section 150BP, the magistrate may issue the warrant (the original warrant) only if the magistrate is satisfied—

(a)it was necessary to make the application under section 150BP; and

(b)the way the application was made under section 150BP was appropriate.

(2)After the magistrate issues the original warrant—

(a)if there is a reasonably practicable way of immediately giving a copy of the warrant to the investigator, including, for example, by sending a copy by fax or email, the magistrate must immediately give a copy of the warrant to the investigator; or

(b)otherwise—

(i)the magistrate must tell the investigator the information mentioned in section 150BO(2); and

(ii)the investigator must complete a form of warrant, including by writing on it the information mentioned in section 150BO(2) provided by the magistrate.

(3)The copy of the warrant mentioned in subsection (2)(a), or the form of warrant completed under subsection (2)(b) (in either case the duplicate warrant), is a duplicate of, and as effectual as, the original warrant.

(4)The investigator must, at the first reasonable opportunity, send to the magistrate—

(a)the written application complying with section 150BN(2) and (3); and

(b)if the investigator completed a form of warrant under subsection (2)(b), the completed form of warrant.

(5)Despite subsection (3), if—

(a)an issue arises in a proceeding about whether an exercise of a power was authorised by a warrant issued under this section; and

(b)the original warrant is not produced in evidence;

the onus of proof is on the person relying on the lawfulness of the exercise of the power to prove a warrant authorised the exercise of the power.

(6)This section does not limit section 150BN.

150BR Defect in relation to a warrant

(1)A warrant is not invalidated by a defect in—

(a)the warrant; or

(b)compliance with this subdivision;

unless the defect affects the substance of the warrant in a material particular.

(2)In this section—

warrant includes a duplicate warrant mentioned in section 150BQ(3).

150BS Entry procedure

(1)This section applies if an investigator named in a warrant issued under this subdivision for a place is intending to enter the place under the warrant.

(2)Before entering the place, the investigator must do or make a reasonable attempt to do the following things—

(a)identify himself or herself to a person who is an occupier of the place and is present by producing the investigator’s identity card or another document evidencing the investigator’s appointment;

(b)give the person a copy of the warrant;

(c)tell the person the investigator is permitted by the warrant to enter the place;

(d)give the person an opportunity to allow the investigator immediate entry to the place without using force.

(3)However, the investigator need not comply with subsection (2) if the investigator reasonably believes that entry to the place without compliance is required to ensure the execution of the warrant is not frustrated.

(4)In this section—

warrant includes a duplicate warrant mentioned in section 150BQ(3).

150BT Application of division

(1)The powers under this division may be exercised if an investigator enters a place under section 150BI(1).

(2)However, if the investigator enters under section 150BI(1)(a) or (c), the powers under this division are subject to any conditions of the consent or terms of the warrant.

150BU General powers

(1)The investigator may do any of the following (each a general power)—

(a)search any part of the place;

(b)inspect, examine or film any part of the place or anything at the place;

(c)take for examination a thing, or a sample of or from a thing, at the place;

(d)place an identifying mark in or on anything at the place;

(e)take an extract from, or copy, a document at the place, or take the document to another place to copy;

(f)produce an image or writing at the place from an electronic document or, to the extent it is not practicable, take a thing containing an electronic document to another place to produce an image or writing;

(g)take to, into or onto the place and use any person, equipment and materials the investigator reasonably requires for exercising the investigator’s powers under this chapter;

(h)remain at the place for the time necessary to achieve the purpose of the entry.

(2)The investigator may take a necessary step to allow the exercise of a general power.

(3)If the investigator takes a document from the place to copy it, the investigator must copy the document and return it to the place as soon as practicable.

(4)If the investigator takes from the place an article or device reasonably capable of producing a document from an electronic document to produce the document, the investigator must produce the document and return the article or device to the place as soon as practicable.

(5)In this section—

examine includes analyse, test, account, measure, weigh, grade, gauge and identify.

film includes photograph, videotape and record an image in another way.

inspect, a thing, includes open the thing and examine its contents.

150BV Power to require reasonable help

(1)The investigator may make a requirement (a help requirement) of an occupier of the place or a person at the place to give the investigator reasonable help to exercise a general power, including, for example, to produce a document or to give information.

(2)When making the help requirement, the investigator must give the person an offence warning for the requirement.

150BW Offence to contravene help requirement

(1)A person of whom a help requirement has been made must comply with the requirement, unless the person has a reasonable excuse.

Maximum penalty—50 penalty units.

(2)It is a reasonable excuse for an individual not to comply with a help requirement if complying might tend to incriminate the individual or expose the individual to a penalty.

150BX Seizing evidence at a place that may be entered only with consent or warrant

(1)This section applies if—

(a)an investigator is authorised to enter a place only with the consent of an occupier of the place or a warrant; and

(b)the investigator enters the place after obtaining the consent or under a warrant.

(2)If the investigator enters the place with the occupier’s consent, the investigator may seize a thing at the place only if—

(a)the investigator reasonably believes the thing is evidence of an offence against a conduct provision; and

(b)seizure of the thing is consistent with the purpose of entry as explained to the occupier when asking for the occupier’s consent.

(3)If the investigator enters the place under a warrant, the investigator may seize the evidence for which the warrant was issued.

(4)The investigator may also seize anything else at the place if the investigator reasonably believes—

(a)the thing is evidence of an offence against a conduct provision; and

(b)the seizure is necessary to prevent the thing being hidden, lost or destroyed.

150BY Seizure of property subject to security

(1)An investigator may seize a thing, and exercise powers relating to the thing, despite a lien or other security over the thing claimed by another person.

(2)However, the seizure does not affect the other person’s claim to the lien or other security against a person other than the investigator or a person acting under the direction or authority of the investigator.

150BZ Power to secure seized thing

(1)Having seized a thing under this division, an investigator may—

(a)leave it at the place it was seized (the place of seizure) and take reasonable action to restrict access to it; or

(b)move it from the place of seizure.

(2)For subsection (1)(a), the investigator may, for example—

(a)seal the thing, or the entrance to the place of seizure, and mark the thing or place to show access to the thing or place is restricted; or

(b)for equipment—make it inoperable; or

Example—

make it inoperable by dismantling it or removing a component without which the equipment can not be used

(c)require a person the investigator reasonably believes is in control of the place or thing to do an act mentioned in paragraph (a) or (b) or anything else an investigator could do under subsection (1)(a).

(3)When making a requirement of a person under subsection (2)(c), the investigator must give the person an offence warning for the requirement.

150CA Offence to contravene seizure requirement

A person must comply with a requirement made of the person under section 150BZ(2)(c), unless the person has a reasonable excuse.

Maximum penalty—50 penalty units.

150CB Offence to interfere

(1)If access to a seized thing is restricted under section 150BZ, a person must not tamper with the thing or with anything used to restrict access to the thing without—

(a)an investigator’s approval; or

(b)a reasonable excuse.

Maximum penalty—50 penalty units.

(2)If access to a place is restricted under section 150BZ, a person must not enter the place in contravention of the restriction or tamper with anything used to restrict access to the place without—

(a)an investigator’s approval; or

(b)a reasonable excuse.

Maximum penalty—50 penalty units.

150CC Receipt and information notice for seized thing

(1)This section applies if an investigator seizes anything under this division, unless—

(a)the investigator reasonably believes there is no-one apparently in possession of the thing or it has been abandoned; or

(b)because of the condition, nature and value of the thing it would be unreasonable to require the investigator to comply with this section.

(2)The investigator must, as soon as practicable after seizing the thing, give an owner or person in control of the thing before it was seized—

(a)a receipt for the thing that generally describes the thing and its condition; and

(b)an information notice about the decision to seize it.

(3)However, if an owner or person from whom the thing is seized is not present when it is seized, the receipt and information notice may be given by leaving them in a conspicuous position and in a reasonably secure way at the place at which the thing is seized.

(4)The receipt and information notice may—

(a)be given in the same document; and

(b)relate to more than 1 seized thing.

(5)The investigator may delay giving the receipt and information notice if the investigator reasonably suspects giving them may frustrate or otherwise hinder an investigation by the investigator under this chapter.

(6)However, the delay may be only for so long as the investigator continues to have the reasonable suspicion and remains in the vicinity of the place at which the thing was seized to keep the place under observation.

150CD Access to seized thing

(1)Until a seized thing is returned, the investigator who seized the thing must allow an owner of the thing—

(a)to inspect it at any reasonable time and from time to time; and

(b)if it is a document—to copy it.

(2)Subsection (1) does not apply if it is impracticable or would be unreasonable to allow the inspection or copying.

(3)The inspection or copying must be allowed free of charge.

150CE Return of seized thing

(1)This section applies if a seized thing is not forfeited under subdivision 4.

(2)As soon as the assessor stops being satisfied there are reasonable grounds for retaining the thing, the assessor must return it to its owner.

(3)If the thing is not returned to its owner within 3 months after it was seized, the owner may apply to the assessor for its return.

(4)Within 30 days after receiving the application, the assessor must—

(a)if the assessor is satisfied there are reasonable grounds for retaining the thing and decides to retain it—give the owner a notice about the decision, including the grounds for retaining the thing; or

(b)otherwise—return the thing to the owner.

(5)For this section, there are reasonable grounds for retaining a seized thing if—

(a)the thing is being, or is likely to be, examined; or

(b)the thing is needed, or may be needed, for the purposes of—

(i)a proceeding for an offence against a conduct provision that is likely to be started or that has been started but not completed; or

(ii)an appeal from a decision in a proceeding for an offence against a conduct provision; or

(c)it is not lawful for the owner to possess the thing.

(6)Subsection (5) does not limit the grounds that may be reasonable grounds for retaining the seized thing.

(7)Nothing in this section affects a lien or other security over the seized thing.

(8)In this section—

examine includes analyse, test, measure, weigh, grade, gauge and identify.

150CF Forfeiture by assessor decision

(1)The assessor may decide a seized thing is forfeited to the State if an investigator—

(a)after making reasonable inquiries, can not find an owner; or

(b)after making reasonable efforts, can not return it to an owner.

(2)However, the investigator is not required to—

(a)make inquiries if it would be unreasonable to make inquiries to find an owner; or

(b)make efforts if it would be unreasonable to make efforts to return the thing to an owner.

Example—

The owner of the thing has migrated to another country.

(3)Regard must be had to the thing’s condition, nature and value in deciding—

(a)whether it is reasonable to make inquiries or efforts; and

(b)if inquiries or efforts are made—what inquiries or efforts, including the period over which they are made, are reasonable.

150CG Dealing with property forfeited to State

(1)A thing becomes the property of the State if the thing is forfeited to the State under section 150CF(1).

(2)The assessor may deal with the thing as the assessor considers appropriate, including, for example, by destroying it or giving it away.

150CH Power to require information

(1)This section applies if an investigator reasonably believes—

(a)an offence against a conduct provision has been committed and a person may be able to give the investigator information about the commission of the offence; or

(b)a person has information reasonably necessary for the investigator to investigate the conduct of a councillor.

(2)The investigator may, by notice given to the person, require the person to give the investigator the information by a stated reasonable time.

(3)When making a requirement of a person under subsection (2), the investigator must give the person an offence warning for the requirement.

(4)For information that is an electronic document, compliance with the requirement requires the giving of a clear image or written version of the electronic document.

(5)In this section—

information includes a document.

150CI Offence to contravene information requirement

(1)A person of whom a requirement is made under section 150CH(2) must comply with the requirement, unless the person has a reasonable excuse.

Maximum penalty—50 penalty units.

(2)It is a reasonable excuse for an individual not to give the information if giving the information might tend to incriminate the individual or expose the individual to a penalty.

150CJ Power to require attendance

(1)The investigator may require a person to—

(a)attend a meeting with the investigator at a stated reasonable time and place; and

(b)answer questions, related to the investigation of the conduct of a councillor or an offence against a conduct provision, asked by the investigator.

(2)When making a requirement of a person under subsection (1), the investigator must give the person an offence warning for the requirement.

(3)A person of whom a requirement is made under subsection (1) must comply with the requirement, unless the person has a reasonable excuse.

Maximum penalty—50 penalty units.

(4)It is a reasonable excuse for an individual to fail to answer a question if answering the question might tend to incriminate the individual or expose the individual to a penalty.

150CK Notice about confidentiality

(1)This section applies if an investigator intends to, or does, exercise a power—

(a)under section 150CH requiring a person to give information to the investigator; or

(b)under section 150CJ requiring a person to attend a place and answer questions.

(2)The assessor may give a notice to the person stating that the fact of the person’s attendance, or information given by the person, is confidential information.

(3)However, the assessor may give the notice to the person only if the assessor reasonably believes the notice is necessary—

(a)to prevent the commission of an offence; or

(b)to ensure the investigation of a councillor’s conduct is kept confidential.

(4)If the assessor gives the notice, the notice is also confidential information.

(5)The person must not disclose the confidential information to another person, unless the disclosure is permitted under subsection (6) or the person has a reasonable excuse.

Maximum penalty—85 penalty units.

(6)The person may disclose the confidential information if—

(a)the disclosure was made before the person received the notice; or

(b)the disclosure is made to—

(i)obtain legal advice; or

(ii)obtain information to comply with the investigator’s requirement; or

(iii)comply with another lawful obligation to disclose the information.

(7)However, disclosure by a person (the discloser) under subsection (6)(b)(ii) is permitted only if the discloser informs another person to whom the disclosure is made that the information is confidential information under this section.

150CL Duty to avoid inconvenience and minimise damage

In exercising a power, an investigator must take all reasonable steps to cause as little inconvenience, and do as little damage, as possible.

Note—

See also section 150CN.

150CM Notice about damage

(1)This section applies if—

(a)an investigator damages something when exercising, or purporting to exercise, a power; or

(b)a person (the assistant) acting under the direction or authority of an investigator damages something.

(2)However, this section does not apply to damage the investigator reasonably considers is trivial or if the investigator reasonably believes—

(a)there is no-one apparently in possession of the thing; or

(b)the thing has been abandoned.

(3)The investigator must give a notice about the damage to a person who appears to the investigator to be an owner, or person in control, of the thing.

(4)However, if for any reason it is not practicable to comply with subsection (3), the investigator must—

(a)leave the notice at the place at which the damage happened; and

(b)ensure it is left in a conspicuous position and in a reasonably secure way.

(5)The investigator may delay complying with subsection (3) or (4) if the investigator reasonably suspects complying with the subsection may frustrate or otherwise hinder an investigation by the investigator.

(6)The delay may be only for so long as the investigator continues to have the reasonable suspicion and remains in the vicinity of the place at which the damage happened.

(7)If the investigator believes the damage was caused by a latent defect in the thing or other circumstances beyond the control of the investigator or the assistant, the investigator may state the belief in the notice.

(8)The notice must state—

(a)particulars of the damage; and

(b)that the person who suffered the damage may claim compensation under section 150CN.

150CN Compensation

(1)A person may claim compensation from the State if the person incurs loss because of the exercise, or purported exercise, of a power by or for an investigator, including a loss arising from compliance with a requirement made of the person under division 3, 4 or 5.

(2)The compensation may be claimed and ordered in a proceeding—

(a)brought in a court with jurisdiction for the recovery of the amount of compensation claimed; or

(b)for an offence against a conduct provision, or another offence relating to the conduct of a councillor, the investigation of which gave rise to the claim for compensation.

(3)A court may order the payment of compensation only if it is satisfied it is just to make the order in the circumstances of the particular case.

(4)In considering whether it is just to order compensation, the court must have regard to—

(a)any relevant offence committed by the claimant; and

(b)whether the loss arose from a lawful seizure or lawful forfeiture.

(5)A regulation may prescribe other matters that may, or must, be taken into account by the court when considering whether it is just to order compensation.

(6)Section 150CL does not provide for a statutory right of compensation other than as provided by this section.

(7)In this section—

loss includes costs and damage.

150CO Who may apply for review

(1)This section applies to a person who is given, or is entitled to be given, an information notice under section 150CC about a decision to seize a thing (the original decision).

(2)If the person is dissatisfied with the decision, the person may apply to the assessor for a review (an internal review) of the decision.

150CP Application for review

(1)The application must be—

(a)made within 30 days after—

(i)if the person is given an information notice about the decision—the person is given the information notice; or

(ii)otherwise—the person otherwise becomes aware of the decision; and

(b)in writing; and

(c)supported by enough information to enable the assessor to decide the application.

(2)The assessor may extend the time for making the application if, within the 30-day period applying under subsection (1), the person asks the assessor to extend the time.

150CQ Review decision

(1)Unless the assessor made the original decision personally, the assessor must ensure the application is not dealt with by—

(a)the person who made the original decision; or

(b)a person in a less senior office in the Office of the Independent Assessor than the person who made the original decision.

(2)Within 90 days after the application is made, the assessor must review the original decision and make a decision (the review decision)—

(a)confirming the original decision; or

(b)amending the original decision; or

(c)substituting another decision for the original decision.

(3)The assessor must make the review decision on the material that led to the original decision and any other material the assessor considers relevant.

(4)The assessor must, as soon as practicable after making the review decision, give the applicant notice of the review decision.

(5)If the review decision is not the decision sought by the applicant, the notice must be a QCAT information notice.

150CR External review by QCAT

If the applicant is dissatisfied with a review decision made by the assessor, the applicant may apply, as provided under the QCAT Act, to QCAT for a review of the review decision.

150CS No power to stay decision

If a person applies to QCAT for a review of a review decision, QCAT may not—

(a)stay the operation of the review decision; or

(b)grant an injunction in the proceeding for the review.

150CT Establishment

There is to be an Independent Assessor.

150CU Functions

(1)The functions of the assessor are—

(a)to investigate and deal with the conduct of councillors if it is alleged or suspected to be inappropriate conduct, misconduct or, when referred to the assessor by the Crime and Corruption Commission, corrupt conduct; and

(b)to provide advice, training and information to councillors, local government employees and other persons about dealing with alleged or suspected inappropriate conduct, misconduct or corrupt conduct; and

(c)to prosecute offences against the conduct provisions; and

(d)to investigate other matters decided by the Minister; and

(e)another function related to a function mentioned in paragraph (a), (b), (c), (d) or (f) directed, in writing, by the Minister; and

(f)any other functions given to the assessor under this Act.

(2)The assessor is the public official responsible for dealing with a complaint about the corrupt conduct of a councillor for the purposes of consultation about, or a referral of, the complaint under the Crime and Corruption Act 2001.

150CV Appointment

(1)The Governor in Council may appoint a qualified person to be the Independent Assessor.

(2)The assessor is appointed under this Act and not the Public Service Act 2008.

150CW Qualifications for appointment

(1)A person is qualified to hold the office of assessor if the person has extensive knowledge of, and experience in, any of the following areas—

(a)local government;

(b)investigations;

(c)law;

(d)public administration;

(e)public sector ethics.

(2)A person is not qualified to hold the office of the assessor if the person—

(a)has a conviction for an indictable offence, other than a spent conviction; or

(b)is an insolvent under administration; or

(c)is guilty of misconduct of a type that could warrant dismissal from the public service if the assessor were an officer of the public service.

150CX Term of office

Subject to this division, the assessor holds office for the term, of not more than 5 years, stated in the assessor’s instrument of appointment.

150CY Conditions of appointment

The assessor—

(a)is to be paid the remuneration and allowances decided by the Governor in Council; and

(b)holds office on the terms and conditions decided by the Governor in Council, to the extent the terms and conditions are not provided for by this Act.

150CZ Preservation of rights

(1)This section applies if a public service officer is appointed as the assessor.

(2)The person keeps all rights accrued or accruing to the person as a public service officer as if service as the assessor were a continuation of service as a public service officer.

(3)At the end of the person’s term of office or on resignation as the assessor, the person’s service as the assessor is taken to be service of a like nature in the public service for deciding the person’s rights as a public service officer.

150DA Restriction on local government employment etc.

The assessor must not, without the Minister’s approval in each particular case, hold office or be engaged in any way by a local government, whether or not for profit.

150DB Conflict of interest

(1)This section applies if the assessor has an interest that may conflict with a fair and impartial investigation into the conduct of a councillor.

(2)The assessor must not take part, or take further part, in consideration of the matter.

Maximum penalty—35 penalty units.

(3)As soon as practicable after the assessor becomes aware this section applies, the assessor must give a notice about the matter to the Minister.

Maximum penalty—35 penalty units.

(4)If the assessor gives a notice to the Minister about a conflict of interest in relation to a matter, the Minister must nominate a person to act as the assessor under section 150DD in relation to the matter.

150DC Vacancy of office

The office of the assessor becomes vacant if the person holding the office—

(a)completes a term of office and is not reappointed; or

(b)is not qualified under section 150CW to hold the office; or

(c)is removed from office by the Governor in Council for misbehaviour or physical or mental incapacity; or

(d)resigns from the office by signed notice given to the Minister.

150DD Acting assessor

(1)The Minister may appoint a person to act as the assessor during—

(a)a vacancy in the office of the assessor; or

(b)a period the assessor is absent, or can not perform the duties of the office, for any reason.

(2)The person can not be appointed for more than 6 months in a 12-month period.

(3)However, the person may be appointed only if the person is qualified under section 150CW to hold the office of the assessor.

150DE Assessor not subject to outside direction

The assessor is not subject to direction by another person about—

(a)the way the assessor’s powers in relation to an investigation under this Act are to be exercised; or

(b)the priority given to investigations.

150DF Delegation

(1)The assessor may delegate any of the assessor’s functions to an appropriately qualified staff member of the Office of the Independent Assessor.

(2)However, the assessor may not delegate the assessor’s power to give a notice under section 150CK.

(3)In this section—

functions includes powers.

150DG Establishment

(1)An office called the Office of the Independent Assessor is established.

(2)The office consists of the assessor and the staff of the office.

150DH Function

The office’s function is to help the assessor perform the assessor’s functions.

150DI Staff

Staff of the office are employed under the Public Service Act 2008.

150DJ Control of office

(1)The assessor controls the office.

(2)Subsection (1) does not prevent the attachment of the office to the department for the purpose of ensuring the office is supplied with the administrative support services it requires to carry out its functions effectively and efficiently.

150DK Establishment

The Councillor Conduct Tribunal (the conduct tribunal) is established.

150DL Functions

(1)The functions of the conduct tribunal are—

(a)at the request of a local government—

(i)to investigate the suspected inappropriate conduct of a councillor referred to the local government, by the assessor, to be dealt with by the local government; and

(ii)to make recommendations to the local government about dealing with the conduct; and

(b)another function related to a function mentioned in paragraph (a) or (c) directed, in writing, by the Minister; and

(c)any other functions given to the conduct tribunal under this Act.

(2)A member of the conduct tribunal chosen by the president may constitute the conduct tribunal to perform the functions mentioned in subsection (1)(a) for a particular request.

(3)Nothing in this section limits the president’s duty under the Crime and Corruption Act 2001 to notify the Crime and Corruption Commission about suspected corrupt conduct.

150DLA Referral of alleged misconduct to assessor

(1)This section applies if the conduct tribunal—

(a)at the request of a local government, is investigating the suspected inappropriate conduct of a councillor referred to the local government, by the assessor, to be dealt with by the local government; and

(b)is reasonably satisfied the conduct is misconduct.

(2)The conduct tribunal must refer the conduct to the assessor for further investigation under part 3, division 4.

Note—

See also sections 150T and 150W(2).

150DM Membership of conduct tribunal

The members of the conduct tribunal are—

(a)the president; and

(b)the casual members.

150DN Appointment of president and casual members

(1)The Governor in Council may appoint a person to be the president of the conduct tribunal.

(2)The Governor in Council may appoint the number of casual members the Governor in Council considers appropriate.

(3)The Minister may recommend the appointment of a person as a member of the conduct tribunal only if the person is qualified under section 150DO to be a member.

150DO Qualifications for membership

(1)A person is qualified to be a member of the conduct tribunal only if the person has extensive knowledge of, and experience in, any of the following—

(a)local government;

(b)investigations;

(c)law;

(d)public administration;

(e)public sector ethics.

(2)However, a person is not qualified to be a member if the person—

(a)is a councillor; or

(b)is a nominee for election as a councillor; or

(c)accepts an appointment as a councillor; or

(d)is an employee of a local government; or

(e)is a contractor of a local government; or

(f)is a consultant engaged by a local government; or

(g)is a member of an Australian Parliament; or

(h)is a nominee for election as a member of an Australian Parliament; or

(i)is a member of a political party; or

(j)has a conviction for an indictable offence, other than a spent conviction; or

(k)is an insolvent under administration; or

(l)is a person prescribed by regulation for this subsection.