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Intro

This guideline has been developed in response to enquiries from local governments regarding the nature of delegations, how to go about determining whether to use delegations and other related matters.

Within the context of government administration and administrative law, this guideline:

  • explains the concept of delegation;
  • explains how delegations relate to or are derived from legislation;
  • explains and illustrates the associated concept of ‘acting through’;
  • provides guidance on determining which powers and duties should be delegated;
  • explains the procedure for making delegations; and
  • provides examples of delegations from selected powers and duties set out in the Local Government Act 1995.

This guideline also contains a listing of various powers and duties in the Local Government Act 1995 and its associated regulations, and identifies powers and duties capable of delegation and to whom.

Definition of 'delegate'

The Macquarie Dictionary Second Edition (1991), The Macquarie Library Pty Ltd, Macquarie University, New South Wales (Australia), p. 469, defines ‘delegate’ as follows:

  • to send or appoint (a person) as deputy or representative;
  • to commit (powers, duties, etc.) to another as agent or deputy; and
  • to commit powers or duties to others.

The Oxford Shorter English Dictionary Third Edition (1978), Oxford University Press, Oxford (England), p. 511, defines ‘delegate’ as follows:

  • a person sent or deputed to act for or represent another or others; a deputy, commissioner;
  • to send or commission (a person) as a deputy
  • or representative, with power to act for another; and
  • to entrust or commit (authority, etc.) to another as an agent or deputy.

Justice Wills in Huth v Clarke (1890) 25 QBD 391, at 395 stated:

‘Delegation, as the word is generally used, does not imply a parting with powers by the person who grants the delegation, but points rather to a conferring of an authority to do things which otherwise the person would have to do himself… [It] is never used by legal writers…as implying that the delegating person parts with his power in such a manner as to denude himself of his rights…[The] word ‘delegate’ means little more than an agent”

The definitions and judicial commentary above illustrate that:

  • to delegate is to appoint another person to exercise a power or discharge a duty; and
  • a delegation does not strip the person making the delegation of the right to exercise the delegated power or discharge the delegated duty.

The nature of delegation – decision making

Delegations are most commonly used in organisations where:

  • A particular person has authority to exercise a discretion to enforce a right or discharge a duty on behalf of the organisation;
  • That person or officer has either:
    • a multitude of authorities to exercise a discretion to enforce rights or discharge powers; or
    • many circumstances in which they have authority to exercise a discretion to enforce rights or discharge duties;
  • The business of the organisation could not be efficiently carried on if that person were to personally exercise their discretion to enforce all the rights or discharge all the duties; and
  • Through practical administration, that person needs to appoint other persons to exercise their discretion to exercise powers or discharge duties on behalf of the organisation.

Whilst there is a requirement for local government delegations to be authorised by statute (as is explained in section 6 of these guidelines), there is no limitation (unless expressly stated to the contrary by statute) on appointing a person to act on behalf of the local government or the CEO, provided that appointment does not include the power of delegation (see section 15 of these guidelines for details).

There is a legal distinction between:

  • the delegation to a person to exercise a right or discharge a duty on behalf of an organisation; and
  • appointing a person to act on behalf of an organisation or another employee of that organisation.

In most circumstances, where a person:

  • Is appointed only to carry out the express instructions of an employee or the governing body of an organisation; and
  • Is provided with only limited discretion in carrying out those instructions, that appointment does not constitute a delegation and does not need to be formally delegated.

Please see section 4 of these guidelines which explain the concept of ‘acting through’. Section 3 of this guideline has illustrated that when determining whether an appointment is a delegation or simply an appointment to act on behalf of another person, it is critical to consider whether or not the person is appointed to exercise a broad discretion to exercise a power or discharge a duty.

The concept of ‘acting through’

In addition to covering delegations, the Local Government Act 1995 introduces the concept of ‘acting through’. Section 5.45 of the Act states that in relation to delegations, nothing prevents a ‘local government from performing any of its functions by acting through a person other than the CEO’ or ‘a CEO from performing any of his or her functions by acting through another person’. The Act does not specifically define the meaning of the term ‘acting through’. However, the key difference between a delegation and ‘acting through’ is that a delegate exercises the delegated decision making function in his or her own right. The principal issue is that where a person has no discretion in carrying out a function, then that function may be undertaken through the ‘acting through’ concept. Alternatively, where the decision allows for discretion on the part of the decision maker, then that function needs to be delegated for another person to have that authority.

For administrative purposes, a person may sign a letter in his or her name on behalf of the CEO while, with delegated powers, the person would sign a letter in his or her own name, in accordance with the delegated authority.

An appropriate method for a council of a local government to make a decision which will be implemented by its officers, is for it to make a policy about particular functions that it performs. In that case there is no need for a delegation as it will be the role of the organisation to implement those policy decisions.

It is critical in understanding the types of functions that are appropriate for ‘acting through’ another person in preference to delegation. This can be demonstrated through the following example. In this case, the Council gives the CEO the power to call tenders subject to certain cost parameters. If that power is delegated, the CEO could call tenders if the CEO believed the cost parameters had been satisfied (even if the Council’s opinion was different to the CEO’s opinion). However, under an ‘acting through’ arrangement, the CEO could only call tenders if the Council was satisfied about the cost parameters.

There are several advantages in using ‘acting through’ rather than delegation which include:

  • it will better suit particular operational processes;
  • it may decrease bureaucratic arrangements;
  • it will reduce additional recording; and
  • it will reduce reporting requirements placed on employees who are given delegated authority.

Legislative powers for delegations in local government

The legislation authorising the delegation of certain local government powers or duties and requiring records to be maintained in respect of such delegations, includes the:

  • Local Government Act 1995;
  • Local Government (Miscellaneous Provisions) Act 1960; (Strata Titles Act 1985);
  • Bush Fires Act 1954; and
  • Planning and Development Act 2005.

Local Government Act 1995

The provisions of the Local Government Act 1995 which provide for delegations by a local government or its CEO are as follows:

  • Section 5.16(1), states: ‘Under and subject to section 5.17, a local government may delegate to a committee any of its powers and duties other than this power of delegation.’
  • Section 5.42(1), states: ‘A local government may delegate to the CEO the exercise of any of its powers or the discharge of any of its duties under this Act other than those referred to in section 5.43.’
  • Section 5.44(1), states: ‘A CEO may delegate to any employee of the local government the exercise of any of the CEO’s powers or the discharge of any of the CEO’s duties under this Act other than this power of delegation.’

The Act has been framed in a way that determines whether powers and duties can be delegated or not. If the term ‘council’ is used then it is the council itself which must carry out that function. If the term ‘local government’ is used then it may be possible to use delegation, subject to any other express powers against delegation or the desirability in using ‘acting through’ where it may be a better way of carrying out the power or duty.

Local Government (Miscellaneous Provisions) Act 1960; Strata Titles Act 1995

Section 2 of the Local Government (Miscellaneous Provisions) Act 1960 effectively incorporates the provisions of that Act into the Local Government Act 1995, and therefore the delegation provisions of the Local Government Act 1995 apply to the Local Government (Miscellaneous Provisions) Act 1960.

Section 2 states that:

‘The Local Government Act 1995 applies as if the provisions of this Act were in that Act but in construing the provisions of this Act account is to be taken of the meanings they had before the Local Government Act 1995 commenced.’

In addition to the delegation powers of the Local Government Act 1995 which apply to the Local Government (Miscellaneous Provisions) Act 1960, section 374(1b) of the Local Government (Miscellaneous Provisions) Act 1960 provides for a local government to delegate the authority to approve certain plans to its building surveyor, stating that:

‘The authority to approve or refuse to approve plans and specifications submitted under [section 374] may be delegated by a local government to a person appointed to the office of building surveyor....’

Reference also needs to be made to section 23 of the Strata Titles Act 1985 which provides for particular delegations to employees.

Bush Fires Act 1954

Section 48 of the Bush Fires Act 1954 provides for a local government to delegate powers to its CEO, stating that:

‘A local government may, in writing, delegate to its chief executive officer the performance of any of its functions under this Act.

Planning and Development Act 2005

The Planning and Development Act 2005 provides for a system through the Model Scheme Text as a set of general provisions for carrying out the general objects of town planning schemes.

Item 11.3.1 of the Model Scheme Text provides for a local government to delegate powers to a committee or its CEO, stating that:

‘The local government may…delegate to a committee or the CEO…the exercise of any of its powers or the discharge of any of its duties under the Scheme, other than this power of delegation.’

Item 11.3.2 of the Model Scheme Text provides for a local government CEO to delegate their powers and duties to another employee, stating that:

‘The CEO may delegate to any employee of the local government the exercise of any of the CEO’s powers or the discharge of any of the CEO’s duties under clause 11.3.1.

Legislative powers to delegate relate only to the Act in which they are contained

Some local governments have mistakenly attempted to use the legislative powers of delegation contained in one Act to delegate a power or duty contained in another Act.

Unless expressly stated to the contrary, a legislative power to delegate only relates to the powers or duties under the Act in which the delegation power is located.

It is not possible to, for example, rely on section 5.42(1) of the Local Government Act 1995 to delegate any of a local government’s powers under the Bush Fires Act 1954 to a CEO. Any delegation by a local government of its powers under the Bush Fires Act 1954 can only be delegated by the delegation provisions of that Act.

The rule against sub-delegation

Notwithstanding that only some of the relevant legislation expressly prohibits subdelegation, the common law prohibits subdelegation unless it is expressly provided for by legislation.

For the avoidance of doubt, an example of sub-delegation is where person A is delegated to exercise a power and they attempt to delegate to person B to exercise the power which was originally delegated to person A.

Another example is the Bush Fires Act 1954. Unlike the Local Government Act 1995, the Bush Fires Act 1954 does not provide for a CEO to delegate to another employee to exercise the powers delegated by council to the CEO under section 48 of that Act. Therefore, only the CEO may exercise the powers delegated by council to the CEO under that Act.

Statutory limitations on delegations

There are limitations on all of the above legislative provisions which provide for the delegation of powers and duties.

Many of the limitations relate to subdelegation. Other limitations include whether the delegation must be in writing, what types of powers and duties can be delegated and what type of majority decision is required to delegate a power or duty.

Not all of the limitations can be addressed in this operational guideline, due to their number and detail. However, the majority of the limitation provisions are located close to the provisions which provide for the delegations.

As the Local Government Act 1995 is the Act under which most delegations will be made by local government, this guideline will discuss the limitations on delegations contained within that Act.

Delegations to committees

Section 5.17 of the Local Government Act 1995 provides limitations on what powers and duties a local government can delegate to its committees. Section 5.17(1) limits the powers and duties which can be delegated to committees, according to the types of members which constitute the committees for example:

  • Council members only;
  • Council members and employees only;
  • Council members, employees and other persons; or
  • Employees and other persons only.

Section 5.17(2) prohibits absolutely the delegation of any powers or duties to committees comprised of only persons other than local government council members or employees.

Delegations to the CEO

Sections 5.43(a) to 5.43(h) of the Local Government Act 1995 provide limitations on what powers and duties a local government can delegate to its CEO, stating that:

‘A local government cannot delegate to a CEO any of the following powers or duties:

  1. any power or duty that requires a decision of an absolute majority or a 75% majority of the local government;
  2. accepting a tender which exceeds an amount determined by the local government for the purpose of this paragraph;
  3. appointing an auditor;
  4. acquiring or disposing of any property valued at an amount exceeding an amount determined by the local government for the purpose of this paragraph;
  5. any of the local government’s powers under section 5.98, 5.98A, 5.99, 5.99A or 5.100;
  6. borrowing money on behalf of the local government;
  7. hearing or determining an objection of a kind referred in section 9.5;
  8. any power or duty that requires the approval of the Minister or the Governor; or
  9. such other powers or duties as may be prescribed.’

Section 5.43(i) of the Act provides for regulations to prescribe further powers or duties which cannot be delegated to the CEO.

The following regulations prescribe powers and duties which cannot be delegated to a CEO:

  1. Regulation 18G of the Local Government (Administration) Regulations 1996 prohibits the delegation to a CEO of the powers and duties under:
    1. Sections 7.12A(2), 7.12A(3)(a) and 7.12A(4) of the Local Government Act 1995 (relating to meetings with auditors); and
    2. Regulations 18C and 18D (relating to the selection and appointment of CEOs and reviews of their performance).
  2. Regulation 6 of the Local Government (Financial Management) Regulations 1996 prohibits the delegation of the duty to conduct an internal audit to an employee (including a CEO) who has been delegated the duty of maintaining the local government’s day to day accounts or financial management operations.

Delegations to other local government employees

Section 5.44(1) of the Local Government Act 1995 provides for the CEO to make delegations to other employees.

The obvious main limitation of section 5.44(1) is that it expressly prohibits any sub-delegation of the power to delegate. This means that once the CEO has delegated a power or duty to an employee or employees, that power or duty cannot be on-delegated to other employees.

Just as a delegation to a CEO by a council may be done with conditions attached, when delegating to another employee a CEO may attach conditions to the delegation, provided that the CEO does not purport to delegate more powers or duties to the other employee than were delegated to the CEO.

Powers Under the Interpretation Act 1984

Section 59 of the Interpretation Act 1984 explains the particular elements of the power to delegate when it appears in various Acts. It states:

‘Construction of Power to Delegate

  1. Where a written law confers power upon a person to delegate the exercise of any power or the performance of any duty conferred or imposed upon him under a written law –
    1. (a) such a delegation shall not preclude a person so delegating from exercising or performing at any time a power or duty so delegated;
    2. (b) such a delegation may be made subject to such conditions, qualifications, limitations or exceptions as the person so delegating may specify;
    3. (c) if the delegation may be made only with the approval of some person, such delegation, and any amendment of the delegation, may be made subject to such conditions, qualifications, limitations or exceptions as the person whose approval is required may specify;
    4. (d) such a delegation may be made to a specified person or to persons of a specified class, or may be made to the holder or holders for the time being of a specified office or class of office;
    5. (e) such a delegation may be amended or revoked by instrument in writing signed by the person so delegating;
    6. (f) in the case of a power conferred upon a person by reference to the term designating an office, such a delegation shall not cease to have effect by reason only of a change in the person lawfully acting in or performing the functions of that office.
  2. The delegation of a power shall be deemed to include the delegation of any duty incidental thereto or connected therewith and the delegation of a duty shall be deemed to include the delegation of any power incidental thereto or connected therewith.
  3. Where under a written law an act or thing may or is required to be done to, by reference to or in relation to, a person and that person has under a written law delegated a relevant function conferred or imposed on him with respect to or in consequence of the doing of that act or thing, the act or thing shall be regarded as effectually done if done to, by reference to or in relation to the person to whom the function has been delegated.’

It is important to be aware that under these provisions, the delegator retains the power to make decisions if need be, despite the fact that a delegation has occurred.

Also, in situations when a number of people occupy a particular office throughout either the day or week (eg ranger officers), a delegation by office enables an employee who occupies that office for the time being, to exercise the powers and duties delegated to that office.

A delegation by office will also enable an employee who temporarily occupies an office, say in an acting role whilst the normal occupier of the office is sick, to efficiently exercise the powers and duties delegated to that office, without the need to go through the delegation process again. Care needs to be taken in ensuring that the person has the appropriate qualifications where required.

When delegating by office, it is essential to ensure that the office described is a distinctly identifiable office (for example Manager, Corporate Services).

Records of delegations

The major requirements to keep records of delegations to committees, CEOs and other employees are contained in sections 5.18 and 5.46 of the Local Government Act 1995.

In relation to delegations to committees, section 5.18 states that:

‘A local government is to keep a register of the delegations made [to committees] under this Division and review the delegations at least once every financial year.’ In relation to delegations to CEOs and other employees, section 5.46 states that:

  1. The CEO is to keep a register of the delegations made under this Division to the CEO and to employees.
  2. At least once every financial year, delegations made under this Division are to be reviewed by the delegator.
  3. A person to whom a power or duty is delegated under this Act is to keep records in accordance with regulations in relation to the exercise of the power or the discharge of the duty.

The registers of delegations to committees and CEOs should include a copy of the minutes which record the delegation (and any conditions) and can be kept in an electronic or paper format. In the case of a delegation from the CEO to an officer the register should also contain a copy of the memorandum of delegation.

Obligations are imposed on the recipients of delegated powers and duties. Under section 5.46 of the Local Government Act 1995, regulation 19 of the Local Government (Administration) Regulations 1996 requires delegates to keep a record of each occasion on which they exercise the powers or discharge the duties delegated to them, stating that:

‘Where a power or duty has been delegated under the Act to the CEO or to any other local government employee, the person to whom the power or duty has been delegated is to keep a written record of:

  1. how the person exercised the power or discharged the duty;
  2. when the person exercised the power or discharged the duty; and
  3. the persons or classes of persons, other than council or committee members or employees of the local government, directly affected by the exercise of the power or the discharge of the duty.’

This provision does not necessarily require the keeping of a register and other efficient record keeping practices would be sufficient. However, it is recommended that such systems provide for accessible accountability of the performance of these tasks.

Delegates to disclose interests and lodge returns

Part 5 Division 6 of the Local Government Act 1995 (disclosure of financial interests) also applies to delegates of powers and duties.

Section 5.71 states that:

If, under Division 4, an employee has been delegated a power or duty relating to a matter and the employee has an interest in the matter, the employee must not exercise the power or discharge the duty and:

  1. in the case of the CEO, must disclose to the mayor or president the nature of the interest as soon as practicable after becoming aware that he or she has the interest in the matter; and
  2. in the case of any other employee, must disclose to the CEO the nature of the interest as soon as practicable after becoming aware that he or she has the interest in the matter.

Penalty: $10,000 or imprisonment for 2 years.

In circumstances where the employee is carrying out a delegated function and the matter relates to his or her own projects, then another officer will need to have the authority to deal with the matter. In addition to the prohibition on delegates exercising the powers or performing the duties delegated to them, sections 5.75 and 5.76 of the Local Government Act 1995 require employees who have been delegated powers or duties to lodge primary and annual returns. Sections 5.75 and 5.76 state:

5.75 Primary Returns

  1. A relevant person other than the CEO must lodge with the CEO a primary return in the prescribed form within 3 months of the start day.
  2. A CEO must lodge with the mayor or president a primary return in the prescribed form within 3 months of the start day.
  3. This section does not apply to a person who: (a) has lodged a return within the previous year; or (b) has, within 3 months of the start day, ceased to be a relevant person.

Penalty: $10,000 or imprisonment for 2 years.

5.76 Annual returns

  1. Each year, a relevant person other than the CEO must lodge with the CEO an annual return in the prescribed form by 31 August of that year.
  2. Each year, a CEO must lodge with the mayor or president an annual return in the prescribed form by 31 August of that year

Penalty applicable to subsections (1) and (2): $10,000 or imprisonment for 2 years.

‘Relevant person’ includes a ‘designated employee’ who has been delegated a power or duty.

Section 5.78 of the Local Government Act 1995 prescribes the information which must be included in the primary and annual returns.

Where an officer acts temporarily in a position with delegated power, that person will need to complete a financial interest return unless they have only acted in that position for less than 3 months.

Determining What Should Be Delegated A decision to delegate a power or duty should be made by local governments only after thorough consideration of whether the delegation will facilitate the effective operation of the local government. This will therefore depend on the particular circumstances of each local government.

A local government council is unable to deal with all of the numerous issues and duties concerning its local government. As far as is possible and reasonable, councils should be predominantly concerned with dealing with higher level policy matters for their local governments.

Duties and powers which are operational in nature, but exercise a discretion should be delegated to the CEO.

Powers and duties can be delegated to CEOs with comprehensive conditions attached. The conditions limit the exercise of powers or discharge of duties to circumstances prescribed by the council. For example, a permit application which does not satisfy the conditions attached to a delegation, must be referred to the council for determination.

The Local Laws Manual (2005), Local Laws WA, Western Australian Local Government Association, Western Australia (Australia) at Section 2, page 10, provides a useful example of a recommendation to council for the delegation of certain powers with conditions attached, as follows:

‘That the administration of this Local Law including any enforcement action and collection of the annual licence fee be delegated to the CEO, but that the exercise of the following powers be reserved to the Council:

  1. issue or refusal of a licence under clause…;
  2. determination of a licence period under clause…;
  3. cancellation of a licence under clause…;
  4. renewal or refusal to renew a licence under clause…; and
  5. determination of any security under clause…’.

Delegations with conditions are also frequently made in relation to employees other than the CEO for acquiring assets on behalf of a local government. An example is where the CEO delegates an employee with the power to purchase goods and services to a value of $10,000 - any proposed purchases which would exceed this limit would need to be referred to the CEO for approval.

Many local laws provide for the appointment of employees as ‘authorised persons’ for the purpose of the relevant local law. Once an employee is appointed as an ‘authorised person’, it is not necessary for the CEO or council to delegate any powers to that employee in order for that employee to, say, enforce the relevant local law

It is important to again note the difference between a delegation of a power or duty and the implementation of a council or CEO decision – see section 4 of this guideline in relation to ‘acting through’.

An example of carrying out a council decision (compared to exercising a delegated power or duty) is where a council approves an annual budget which includes the expenditure of $40,000 for particular road maintenance to be carried out by employees. Employees do not need to be delegated the power to carry out their operational functions.

In the example above, if the relevant employees believe it is necessary to spend more funds than approved in the budget, they must refer that matter to the council for its approval – the adoption of an annual budget can only be done by an absolute majority of council, which under section 5.43(a) of the Local Government Act 1995 cannot be delegated to the CEO or any other employee.

The principal consideration for a local government when deciding if it should delegate a power or duty, is whether the delegation will improve the efficiency of the local government’s operations whilst ensuring that its policies are consistently implemented. See the attached schedule which lists those items where acting through would be a suitable mechanism for achieving that efficiency. Local governments also need to consider the content of their local laws and whether delegation may be necessary, in some circumstances. However, ‘authorised persons’ can normally carry out the ‘policing’ powers in local laws.

Procedure for delegations by council

Section 19 of this guideline considers how a local government can determine whether it should delegate particular powers and duties. This part considers the procedure for council to make a delegation.

When CEOs identify a duty or power of the local government which can be delegated and they believe that if it is delegated it will provide better efficiency, they should put the proposed delegation to their council, for approval.

As the earlier example from the Local Laws Manual (in section 19) demonstrates, a recommendation to council for a delegation is relatively straightforward. The essential elements of a delegation recommendation are:

  1. correct and accurate identification of the power or duty to be delegated;
  2. correct and accurate identification of the person or office to whom or which the power or duty is to be delegated;
  3. correct and accurate definition of the circumstances (if any) in which the power or duty can be exercised or discharged; and
  4. conditions on the exercise of the power or discharge of the duty.

It is important to note again that all delegations by council require an absolute majority decision.

Once a delegation has been made by council, the delegation must be recorded in the delegation register.

Under regulation 19 of the Local Government (Administration) Regulations 1996, the delegate must keep written records of when and how they exercise the delegated power or discharge the delegated duty, and the persons or classes of persons affected by the exercise of the power or discharge of the duty.

Procedure for delegations by CEO

Similarly to delegations by councils, delegations by CEOs must accurately and correctly identify all elements of the delegation.

Employee proposals for delegations (for themselves or for other employees) should be provided to the CEO. The recommendations should be in a format similar to the recommendations for delegations by councils.

As with delegations by council, written records of delegations by the CEO must be kept in the delegations register and delegates must keep records of their exercise of delegated powers or discharge of delegated duties.

Schedule of powers and duties

The attached schedule lists the powers and duties under the Local Government Act 1995 (with associated regulations) which cannot be delegated, those that can be delegated, and to whom the powers and duties can be delegated. It also lists those matters where ‘acting through’ may be the most practical way of carrying out those functions.

It is not suggested that all of the powers and duties which can be delegated should be delegated – the schedule is provided only as an indication of what can be delegated if it is appropriate for a particular local government.

Examples of delegations

Issuing notices to owners or occupiers of land

Section 3.25(1) of the Local Government Act 1995 provides for a local government to provide notice to a person requiring that person to do certain things in relation to land, stating that:

‘A local government may give a person who is the owner … of land a notice in writing relating to the land requiring the person to do anything specified in the notice that:

  1. is prescribed in Schedule 3.1, Division 1; or
  2. is for the purpose of remedying or mitigating the effects of any offence against a provision prescribed in Schedule 3.1, Division 2.’

If a council determines that the efficiency of its local government operations will be improved if its CEO is delegated to exercise the powers under section 3.25(1), the council may so delegate to the CEO either with or without any conditions.

The following is an example of a recommendation for such a delegation:

‘That, under section 5.42 of the Local Government Act 1995, the Chief Executive Officer be delegated to exercise the powers under section 3.25(1) of the Local Government Act 1995.’

As with all delegations by council:

  1. any delegation to a CEO to exercise the powers under section 3.25 must be:
    1. by way of absolute majority decision;
    2. recorded in the delegations register; and
  2. the CEO must keep records of the exercise of the delegated power or discharge of the delegated duty.

For reasons of policy and/or to maintain uniformity, it may be inappropriate for a CEO to delegate to other employees to exercise any section 3.25(1) powers which have been delegated to the CEO. However, other employees can be appointed to carry out a CEO’s exercise of powers delegated to the CEO, without those other employees needing to be delegated.

By way of example, in times when a cyclone is approaching a district, if the CEO is delegated to exercise section 3.25(1) powers, the CEO may decide that certain items must be tied down to prevent them from causing a hazard when the cyclone hits the district, and that section 3.25(1) notices must be issued in relation to those items. Once the CEO has decided this, the CEO may then appoint any number of employees to survey the district and, when they identify items which the CEO has decided must be tied down, complete the section 3.25(1) notices and issue them to the relevant person, on behalf of the CEO.

Calling for and accepting tenders

Section 3.57(1) of the Local Government Act 1995 states that:

‘A local government is required to invite tenders before it enters into a contract of a prescribed kind under which another person is to supply goods or services.’

Section 5.43 of that Act states that:

‘A local government cannot delegate to a CEO any of the following powers or duties:

  1.  …
  2. accepting a tender which exceeds an amount determined by the local government for the purpose of this paragraph.’

Part 4 of the Local Government (Functions and General) Regulations 1996 regulates and provides the procedures for local government tenders for providing goods or services.

A council may delegate to its CEO to invite tenders under section 3.57 of the Local Government Act 1995 and Part 4 of the Local Government (Functions and General) Regulations 1996, without the necessity of setting a maximum limit on the tenders which the CEO may invite.

However, the effect of section 5.43(b) is that if a council wishes to delegate to its CEO to accept tenders under section 3.57 of the Local Government Act 1995 and Part 4 of the Local Government (Functions and General) Regulations 1996, it may attach a condition to the delegation that specifies the maximum limit of the tenders which the CEO may accept.

Following is an example of a recommendation to council to delegate to its CEO to invite any tenders (in accordance with council’s selection criteria) and accept tenders up to a limit of $200,000 under section 3.57 of the Local Government Act 1995 and Part 4 of the Local Government (Functions and General) Regulations 1996:

‘That, under section 5.42 of the Local Government Act 1995, the Chief Executive Officer be delegated to:

  1. Invite any tenders; and
  2. Accept tenders up to an amount of $200,000 in total value, under section 3.57 of the Local Government Act 1995 and Part 4 of the Local Government (Functions and General) Regulations 1996.’

Local Government Act 1995

Relevant exercisable powers and dischargeable duties of a local government

(Refer to each section of the Act or Regulations for the full details of each power or duty to be exercised by the local government).

  • This table sets out the Powers and Duties relevant to delegation and also identifies when ‘acting through’ the
    staff of the organisation may be appropriate.
  • The table also indicates where delegation is not permitted and the Council is to perform that power or duty.
  • See a 'yes' where applicable.
  • The decision to delegate will be a policy matter for each local government.
  • The column headed ‘Suitable for Acting Through’ covers the situations where either the council has made a policy about the matter and the staff of the organisation implement that particular function or where the organisation may carry out the function administratively.
Relevant exercisable powers and dischargeable duties of a local government
Section/
regulation
Applicable delegation
Part 2 – Constitution of Local Government Suitable for acting throughDelegation prohibitedTo a 5.9(2) (a) CtteTo a 5.9(2) (b) CtteTo a 5.9(2) (c) - (e) CtteTo the CEO
2.11(2)A local government may change the method of filling the office of
mayor or president
 Yes    
2.12A(1)(b)Council, by motion passed by it, proposes to change method of
filling office of mayor or president
 Yes    
2.12A(1)(c)Local government to give public notice (of proposal to change
method of filling office of mayor or president)
Yes     
2.17(3)A council with 15 councillors may retain those 15 even if a
decision is made to elect the mayor/president by the electors
 Yes    
2.25(1)A council may by resolution grant leave of absence to
a member
 Yes    
Part 3 – Functions of Local Government Suitable for acting throughDelegation prohibitedTo a 5.9(2) (a) CtteTo a 5.9(2) (b) CtteTo a 5.9(2) (c) - (e) CtteTo the CEO
3.5A local government may make local laws to perform any of its
functions under the Act
 Yes    
3.6(1)With the Governor’s approval, a local government can apply a local
law to an area that is not in a district
 Yes    
3.12(3)Local government must give Statewide public notice (in relation to
proposed local laws)
Yes     
3.12(4)Local government may adopt a local law Yes    
3.12(5)Local government must publish (adopted local law in the
Government Gazette)
Yes     
3.12(6)Local government must give local public notice (that a local law has
been adopted)
Yes     
3.15A local government must ensure that people of its district are
informed (of the purpose and effect of all its local laws)
Yes     
3.16(1)Within 8 years from the day a local law commences, a local
government must review the operation of each local law
following the process set out in section 3.16
Yes     
3.16(2)Local government must give Statewide public notice (in relation to
the review of its local laws)
Yes     
3.16(3)After the last day for submissions in relation to the review of its local
laws, a local government must consider submissions
and cause a report to be submitted to council
Yes     
3.16(4)Local government may determine whether or not it considers that
any of its local laws should be repealed or amended
 Yes    
3.21In performing its executive function, the local government must
ensure that the obligations set out in section 3.21 are complied with
Yes     
3.22(1)A local government that causes damage through the performance of
its function must pay compensation to the owner
or occupier
     Yes
3.25(1)A local government may give an occupier a notice requiring them
to do something to the land if it is specified in Schedule 3.1.
The local government must also inform the owner if the occupier
is not the owner
     Yes
3.26(2)In order to make a person comply with a notice, a local government
may do anything it considers necessary to achieve the purpose for
which the notice was given
Yes    Yes
3.26(3)A local government may continue to undertake works that are not
carried out by the owner or occupier and recover the costs as a debt
Yes    Yes
3.27(1)A local government may go onto private land in the circumstances
prescribed in Schedule 3.2 and carry out works, even if it does not
have the consent of the owner
Yes    Yes
3.31(2)After a local government has given notice, it may authorise a person
to enter land, premises or thing without consent, unless the owner
or occupier has objected to the entry
Yes    Yes
3.34(1)A local government may enter land in an emergency without notice
or consent
Yes    Yes
3.34(5)A local government must give notice (to the owner or occupier of an
intended entry in an emergency whenever it is practical)
Yes     
3.36(3)A local government may make an opening in a fence to do works
on property subject to providing the owner or occupier with 3 days
written notice
Yes    Yes
3.39Local government may authorise an employee to remove and
impound any goods
Yes    Yes
3.40(2)If a local government impounds a vehicle to remove and impound
goods, it must allow the offender to resume control of the vehicle
as soon as practicable after the goods have been removed
Yes     
3.40(3)If the person entitled to resume control of the vehicle is not present,
the local government must give notice (to the holder of a licence
in respect of the vehicle, stating from where and when the vehicle
may be collected)
Yes     
3.40A(1)Local government may authorise a person to remove and impound
an abandoned vehicle wreck
Yes    Yes
3.40A(2)Local government to provide notice (to the owner of a removed
abandoned vehicle wreck, advising that the vehicle may be collected
Yes     
3.40A(4)Local government may declare that a vehicle is an abandoned
vehicle wreck
Yes    Yes
3.42(1)If a local government impounds non-perishable goods, it must either
begin a prosecution against the offender or give them
a notice stating from where and when the goods may be collected
Yes     
3.44Where non-perishable goods have been removed and impounded
and a prosecution instituted, if the offender is not convicted or is
convicted but it is not ordered that the goods be confiscated, the
local government must give the alleged offender notice stating from
where and when the goods may be collected
Yes     
3.46(1)A local government may refuse to allow goods impounded under
sections 3.39 or 3.40A to be collected until the costs of removing,
impounding and keeping them have been paid
Yes     
3.46(2)A local government may refuse to allow goods removed under
sections 3.40 or 3.40A to be collected until the costs of removing
and keeping them have been paid
Yes     
3.47(1)The local government may sell or otherwise dispose of any goods
that have been ordered to be confiscated under
section 3.43
Yes    Yes
3.47(2)The local government may sell or otherwise dispose of any vehicle
that has not been collected within 2 months of a notice having been
given under section 3.40(3) or 7 days of a declaration being made
that a vehicle is an abandoned vehicle wreck
Yes    Yes
3.47(2a)The local government may sell or otherwise dispose of impounded
goods that have not been collected within the period specified in
section 3.47(2b) of the date a notice is given under sections 3.42(1)
(b) or 3.44
Yes    Yes
3.47A(1)If an impounded animal is ill or injured to such an extent that treating
it is not practicable, the local government may humanely destroy the
animal and dispose of the carcass
Yes    Yes
3.48If goods are removed or impounded under section 3.39 and the
offender is convicted, the local government may recover any
expenses incurred in removing and impounding the goods
Yes    Yes
3.50(1)A local government may close a thoroughfare to vehicles, wholly or
partially, for a period not exceeding 4 weeks
Yes    Yes
3.50(1a) and
3.50(4)
A local government may, after providing public notice of its
intention and reasons, inviting submissions and then considering
submissions, order a thoroughfare to be wholly or partially closed
to vehicles for a period exceeding 4 weeks
     Yes
3.50(6)An order to close a thoroughfare may be revoked by the
local government
Yes    Yes
3.50(8)If a thoroughfare is closed without local public notice, the local
government must give such notice as soon as practicable after
its closure
Yes     
3.50AA local government may partially and temporarily close a
thoroughfare, without giving local public notice, if the closure is for
the purpose of carrying out repairs or maintenance and is unlikely to
have a significant adverse effect on users of the thoroughfare
Yes    Yes
Functions and
General Reg
6(3)
A local government may, by local public notice, revoke an order
under regulation 6(1) that closed a thoroughfare or alter it to make
it less restrictive
Yes    Yes
3.51(3)Before fixing, altering or realigning a public thoroughfare or draining
water onto adjoining land, the local government must give notice of
its proposal, invite submissions and consider those submissions
Yes    Yes
3.52(2)Except if they are closed or have restricted use, local governments
are to ensure that public thoroughfares are kept open for public use
Yes     
3.52(3)When fixing, altering or realigning a public thoroughfare, the local
government must ensure vehicle access to adjoining land
is provided
Yes     
3.53(3)If an unvested facility lies within 2 or more districts, the local
governments concerned can agree on its control and management
  YesYes Yes
3.54(1)A local government may do anything it could do under the Parks
and Reserves Act 1895 if it were a Board appointed under that Act,
to control and manage any land reserved under the Land Act 1933
and vested in or placed under the control and management of the
local government
Yes YesYesYesYes
3.57(1)A local government must invite tenders before it enters into a
contract for goods or services with a value of $100,000 or more
(Functions and General Reg 11)
  Yes limited
Yes limited Yes limited
Functions
and General
Reg 14(2a)
Where a local government is inviting tenders, the local government
must determine in writing the criteria for accepted tenders
  YesYes Yes
Functions
and General
Reg 11(2)(d)
Tenders do not have to be publicly invited if the contract is to
be entered into by auction after being expressly authorised by a
resolution of the council
 Yes    
Functions
and General
Reg 14(4)(a)
Such information as a local government decides should be disclosed
to those interested in submitting a tender
 Yes    
Functions and
General Reg
18(4) & (5)
A local government must consider any tender that has not been
rejected and decide which one to accept. It may decline to accept
any tender
  Yes limitedYes limited Yes limited
Functions
and General
Reg 19
The local government must give each tenderer written notice stating
the successful tender or advising that no tender was accepted
Yes     
Functions
and General
Reg 20
A local government may, with the approval of the tenderer, make a
minor variation in a contract for goods or services before it enters
the contract with the successful tenderer
YesLimitedYesYes Yes
Functions
and General
Reg 20 (2)
If the successful tenderer does not want to accept the contract
with the variation or the local government and the tenderer cannot
reach agreement, the local government can select the next most
appropriate tenderer
  Yes limitedYes limited Yes limited
Functions
and General
Reg 21 (1)
A local government may seek expressions of interest before
entering the tender process
  Yes limitedYes limited Yes limited
Functions
and General
Reg 21(3)
A local government must give statewide public notice (that it seeks
expressions of interest before entering the tender process)
Yes     
Functions
and General
Reg 23(3)
A local government must consider any submissions of interest that
have not been rejected and decide which ones could satisfactorily
supply the goods or services
  Yes limitedYes limited Yes limited
Functions
and General
Reg 24
A local government must give each person who submitted an
expression of interest written notice (of the outcome of its decision)
Yes     
Functions
and General
Reg 24E(1)
Where local government intends to give a regional price preference
the local government is to prepare a regional price preference policy
Yes YesYes Yes
Functions
and General
Reg 24(E)(4)
A local government cannot adopt a regional price policy until the
local government has considered submissions received
Yes YesYes Yes
3.58(2)A local government can only dispose of property to the highest
bidder at public auction or the most suitable public tender
  Yes limitedYes limited Yes limited
3.58(3)A local government can dispose of property by private treaty but
must follow the process set out in section 3.58(3)
  Yes limitedYes limited Yes limited
Functions
and Gen Reg
30(2)(a)(ii)
A disposition of land is an exempt of disposition of the local
government does not consider that ownership of the land would
be of significant benefit to anyone other than the transferee
Yes    Yes
3.59(2)A local government must prepare a business plan before it enters
into a major trading undertaking, a major land transaction or a land
transaction that is preparatory to a major land transaction
Yes     
3.59(4)A local government must give Statewide public notice (stating its
proposal to enter into a major trading undertaking, a major land
transaction or a land transaction that is preparatory to a major land
transaction, where the plan may be inspected or obtained, and call
for submissions on the plan within 6 weeks)
Yes     
3.59(5)The local government must consider submissions and then decide
whether to proceed with the major trading undertaking, major
land transaction or land transaction that is preparatory to a major
land transaction
 Yes    
Part 4 – Elections and Other Polls Suitable for acting throughDelegation prohibitedTo a 5.9(2) (a) CtteTo a 5.9(2) (b) CtteTo a 5.9(2) (c) - (e) CtteTo the CEO
4.9(1)If the mayor or president has not already done so, the council must
fix the day on which a poll is held for an extraordinary election
 Yes    
4.16(4)The council may decide, with the Electoral Commissioner’s approval,
that the election day for a vacancy that has occurred under section
2.32 before the first Saturday in August in the year prior to an
ordinary election but after the first Saturday in February in an
ordinary election year, is to be on the ordinary election day for
that year
 Yes    
4.17(2)The council may decide, with the Electoral Commissioner’s approval,
that a vacancy may remain unfilled if it occurred under section 2.32
before the first Saturday in August in the year prior to the election
year in which the term would have ended under the Table to section
2.28, but after the first Saturday in February in that election year
 Yes    
4.20(2)A local government may, with the approval of the person concerned
and the Electoral Commissioner, appoint a person as the returning
officer instead of the CEO
 Yes    
4.20(4)A local government may, with the Electoral Commissioner’s
agreement, declare the Electoral Commission to be responsible for
the conduct of an election
 Yes    
4.57(3)A local government may appoint an eligible person (who is willing
to accept the appointment) to any unfilled office if, at the close of
nominations for an extraordinary election, under section 4.57(1) or
(2), the number of candidates is less than the number of offices
 Yes    
4.61(2)Local government may decide to use postal voting for an election Yes    
Elections
Reg 9(1)
The fees to be paid to an electoral officer for conducting an
election are those agreed between the local government and
the electoral officer
Yes     
Elections
Reg 28(1b)
(b)
If a candidate’s deposit has not been refunded within 28 days after
notice is given of the result of the election, the local government is
to credit that amount to a fund of the local government
Yes     
Part 5 – Administration Suitable for acting throughDelegation prohibitedTo a 5.9(2) (a) CtteTo a 5.9(2) (b) CtteTo a 5.9(2) (c) - (e) CtteTo the CEO
5.2The council of a local government must ensure there is an
appropriate structure for administering the local government
 Yes    
5.3(1)The council must hold ordinary meetings and may hold
special meetings
 Yes    
5.4The council may decide to hold an ordinary or special meeting Yes    
5.8A local government may establish committees of 3 or more people
to assist the council in exercising its powers and duties
 Yes    
5.15A local government may reduce the quorum for a
committee meeting
 Yes    
5.16(1)A local government may delegate to a committee, under and subject
to section 5.17, any of its powers and duties other than this power
of delegation
 Yes    
5.18A local government must keep a register of all delegations made to
a committee (at least once each financial year)
Yes     
5.18A local government must review all delegations made to a
committee
Yes YesYes Yes
Admin Reg
12(1)
At least once every year a local government must give local
public notice (of the date, time and place of all its ordinary council
meetings and any committee meetings that must or are proposed
to be open to the public, that are to be held in the next 12 months)
Yes     
Admin Reg
12(2)
A local government must give local public notice (if any of the dates,
times or places in the notice under regulation 12(1) change)
Yes     
Admin Reg
12(3)
A local government must give local public notice (of the date,
time and place of a special meetings of council that must be open
to the public)
Yes     
Admin Reg
14(1)
A local government is to ensure that notice papers and agenda
relating to any council or committee meeting and reports and other
documents tabled at the meeting or which have been produced for
presentation at the meeting are made available to the public at the
same time as they are available to council and committee members
Yes     
Admin Reg
14A(1)(c)
A person who is not physically present at a meeting of a council or
committee is to be taken to be present at the meeting if the council
has approved of the arrangement by absolute majority
 Yes    
5.27(2)General meeting of electors to be held on a day selected by a local
government but not more than 56 days after the local government
accepts the annual report for the previous financial year
Yes    Yes
5.36(1)A local government must employ a CEO Yes    
5.36(4)If the position of CEO becomes vacant, a local government must
advertise the position in the manner and containing such information
as prescribed
Yes     
5.37(1)A local government may designate any employee to be a
senior employee
  YesYes Yes
5.37(2)The council may reject or accept a recommendation by the CEO to
employ or dismiss a senior employee. If it rejects a recommendation
it must provide the CEO with its reasons
 Yes    
5.37(3)If the position of a senior employee becomes vacant, a local
government must advertise the position in the manner and
containing such information as prescribed
Yes    Yes
5.38The performance of each employee employed more than 1 year,
needs to be reviewed
Yes     
Admin Reg
18C
A local government is to approve a process for selection and
appointment of the CEO
  YesYes  
Admin Reg
18D
A local government is to consider, accept or reject a review of the
CEO’s performance
  YesYes  
5.42(1) and
5.43
A local government may delegate to the CEO any of its powers and
duties under this Act except those in section 5.43 and this power
of delegation
 Yes    
5.50(1)A local government must prepare a policy for employees whose
employment is finishing, setting out the circumstances in which the
local government would pay a gratuity and how that gratuity would
be assessed, and give local public notice of the policy
  YesYes Yes
5.50(2)A local government may make a payment to an employee whose
employment is finishing, that is in addition to the amount set out in
its policy, provided that local public notice of the payment is given
  YesYes Yes
5.53(1)A local government must prepare an annual report for each
financial year
Yes     
5.54(1)A local government must accept the annual report by 31 August
after that financial year
 Yes    
5.56A local government is to prepare a Plan for the FutureYes YesYes Yes
Admin Reg
19C(4)
A local government is to review its current plan for the future
every 2 years
  YesYes  
Admin Reg
19C(7)
A local government is to ensure that the electors and ratepayers of
its district are consulted during the development of a plan for the
future and when preparing any modifications of a plan
Yes     
Admin Reg
19D(1)
After a plan for the future, or modifications to a plan, are adopted a
local government is to give local public notice
Yes     
Admin Reg
19D(5)
A Council is to adopt the plan for the future Yes    
Admin Reg
29A(2)
Information prescribed as confidential but that, under 5.95(7), may
be available for inspection if a local government so resolves
  YesYes Yes
5.98(1)(b)A local government may set a fee, within the prescribed range,
to be paid to a council member who attends a council or
committee meeting
 Yes    
5.98(2)(b)A local government may approve expenses which are to be
reimbursed to its councillors, provided that the expenses are of
the kind prescribed as those which the local government can
approve for reimbursement [subject to section 5.98(3)]
  YesYes Yes
5.98(4)A local government may approve the reimbursement to a
council member of an approved expense, either generally
or in a particular case
  YesYes Yes
5.98AA local government may decide to pay its deputy mayor or deputy
president an allowance of up to the prescribed percentage of the
annual local government allowance to which the mayor or president
is entitled under section 5.98(5)
 Yes    
5.99The local government may decide to pay council members attending
council and committee meetings an annual meeting fee instead of
an individual meeting fee
 Yes    
5.99AA local government may decide that instead of reimbursing council
members, under section 5.98(2), for all of a particular type of
expense, it will instead pay all council members an allowance for
that type of expense
 Yes    
5.100(2)A local government may decide to reimburse expenses to
committee members who are not council members or employees
  YesYes Yes
5.101(2)A local government may reimburse an employee for an expense that
was incurred in relation to a matter affecting the local government
  YesYes Yes
5.102A local goverment may make a cash advance to a person for an
expense which can be reimbursed
  YesYes Yes
5.103(1)A local government must prepare or adopt a code of conduct to be
observed by council members, committee members and employees
  YesYes Yes
5.103(2)A local government must review its code of conduct within
12 months of every ordinary elections day
  YesYes Yes
Part 6 – Financial Management Suitable for acting throughDelegation prohibitedTo a 5.9(2) (a) CtteTo a 5.9(2) (b) CtteTo a 5.9(2) (c) - (e) CtteTo the CEO
Financial
M’gment
Reg 8(1)
A local government must maintain separate accounts for monies
required to be held in the municipal fund, the trust fund, the
reserve accounts, or monies relating to major land or major
trading undertakings that will or are expected to span more than
2 financial years
Yes     
Financial
M’gment
Reg 11(1)
A local government must develop procedures for cheques, credit
cards, computer encryption devices and passwords, purchasing
cards and petty cash systems
Yes     
Financial
M’gment
Reg 11(2)
A local government must develop procedures for the approval
of accounts
Yes     
Financial
M’gment
Reg 13(2)
A list of accounts for approval to be paid must be prepared for each
month, including the date of the meeting of council to which the list
is to be presented
Yes     
Financial
M’gment
Reg 19(1)
A local government must establish and document internal control
procedures to ensure control over investments
Yes YesYes Yes
6.2(1)A local government must prepare by 31 August in each
financial year, an annual budget for its municipal fund for
the next financial year
Yes     
6.2(1)A local government must adopt the budget prepared Yes    
6.3A local government must prepare a budget if a general valuation
or a rate or service charge is quashed by a court or the State
Administrative Tribunal, or if it intends to impose supplementary
general rate or specified area rate for the remainder of a
financial year
Yes     
6.3A local government must adopt the budget prepared (Budget for
other circumstances)
 Yes    
6.4(1)A local government must prepare an annual financial report for the
preceding financial year and such other reports as are required
Yes     
6.4(3)By 30 September following each financial year or such extended
time as the Minister allows, a local government is to submit to
its auditor the accounts of the local government and the annual
financial report
Yes     
Financial
M’gment
Reg 33A(3)
A council is to consider a budget review submitted to it and is
to determine by absolute majority whether or not to adopt the
review, any parts of the review on any recommendations made
in the review
 Yes    
Financial
M’gment
Reg 34(2)(c)
Each statement of financial activity is to be accompanied by
documents containing such other supporting information as is
considered relevant by the local government
Yes     
Financial
M’gment
Reg 34(1)
A local government must prepare monthly financial reportsYes     
6.9(3)A local government must pay or deliver to the person entitled to it
any money and its interest and any property
Yes     
6.9(4)A local government may transfer money held in trust for 10 years
to its municipal fund, but must repay it to a person who establishes
a right to the repayment, together with any interest earned on
the investment
Yes    Yes
6.11(1)A local government must establish and maintain a reserve account
for each purpose for which it wishes to set aside money
Yes     
6.11(2)A local government may change the purpose of a reserve account or
use money held in a reserve account for another purpose
 Yes    
6.11(2)A local government must give one month local public notice of a
proposal to change the purpose of a reserve account or use money
held in a reserve account for another purpose
Yes     
6.12(1)(a)A local government may, when adopting the annual budget, grant
a discount or incentive for early payment of any money [subject to
section 6.12(2)]
 Yes    
6.12(1)(b)A local government may waive or grant concessions in relation to
any amount of money or write off any amount of money that is
owed to the local government [subject to section 6.12(2)]
  YesYes Yes
6.12(3)The local government may determine what conditions apply to the
granting of a concession
  YesYes Yes
6.13(1)A local government may resolve to apply interest to any money that
it has been owed [subject to section 6.13(6)], other than for rates
and service charges
 Yes    
6.14(1)A local government may invest money in its municipal or trust
funds that is not being used, in accordance with Part III of the
Trustees Act 1962
Yes YesYes Yes
6.16(1)A local government may impose a fee or charge for any goods or
services it provides, except for a service for which a service charge
has been imposed
 Yes    
6.16(3)As well as imposing fees and charges when adopting the annual
budget, a local government may impose fees and charges during
the year or amend, from time to time, fees and charges throughout
the year
 Yes    
6.19If a local government wishes to impose a fee or charge under Part 6
Division 5 Subdivision 2 after the annual budget has been adopted,
it must provide local public notice of its intention to do so and the
date from which the amended fees or charges will be imposed
Yes     
6.20(1)A local government may borrow or re-borrow money, obtain credit or
extend its financial accommodation in other ways
 Yes    
6.20(2)If a local government proposes to exercise its power to borrow but
it is not budgeted for, unless the proposal is of a prescribed kind, it
must give one month public notice of the proposal
Yes     
6.20(2)If a local government proposes to exercise its power to borrow
but it is not budgeted for, it must make the resolution to do so by
absolute majority
 Yes    
6.20(3)(a)If a local government exercises its power to borrow and then
decides not to proceed with the proposal or it does not use all of
the money, credit or financial accommodation, after giving one
month local public notice it may resolve to use it for another purpose
 Yes    
6.20(3)(b)If a local government exercises its power to borrow and then
decides not to proceed with the proposal or it does not use all of the
money, credit or financial accommodation, it may resolve to use it
for another purpose
 Yes    
6.20(3)One months public ‘notice’ must be givenYes     
6.26(3)If Co-operative Bulk Handling Ltd and a local government cannot
reach an agreement, under section 6.26(2)(i), the local government
may refer the matter to the Minister for determination
  YesYes Yes
6.29(2)A local government must impose a rate on the basis of unimproved
value to any tenement, licence or permit that is located in a district
for which only rates on the basis of gross rental value apply
 Yes    
6.32(1)When adopting the annual budget, a local government may, in order
to make up a budget deficiency, impose a general rate on rateable
land within its district, and may impose a specified area rate or
a minimum payment on rateable land within its district, and may
impose a service charge on land within its district
 Yes    
6.32(3)A local government may, in an emergency after rates in a financial
year have been imposed, impose a supplementary general rate or
specified area rate for the unexpired portion of the current financial
year, and is to impose a new general rate, specified area rate
or services charge if a court or the State Administrative Tribunal
quashes a general valuation, rate or service charge
 Yes    
6.33(1)Local government may impose differential general rates Yes    
6.35(1)Local government may impose on any rateable land in its district a
minimum payment
 Yes    
6.36(1)A local government must give local public notice (of its intention to
impose any differential general rates or minimum payment applying
to a differential rate category under section 6.35(6)(c))
Yes     
6.37(1)Local government may impose a specified area rate on rateable land Yes    
6.38(1)
Financial
M’gment
Reg 54
A local government may impose a service charge on owners
or occupiers to meet the cost of providing television and radio
rebroadcasting, volunteer bush fire brigades, underground
electricity etc
 Yes    
6.39(1)As soon as practicable after a local government resolves to impose
rates, it must compile a record of all rateable land in the district and
all land which has a service charge imposed
Yes     
6.39(2)A local government must, from time to time, amend the current rate
record to ensure it is accurate and correct and may amend the rate
record for the 5 years preceding the current financial year
Yes     
6.40(1)If the rateable value, rateability or the rate imposed on any land
is amended in the rate record, under section 6.39(2), the local
government must reassess the rates payable and give notice to the
owner of the land of any change in the amount of rates payable
Yes     
6.40(2)If a service charge on any land is amended in the rate record, under
section 6.39(2), the local government must reassess the service
charge and give notice to the owner of the land of any change of
the amount of service charge payable
Yes     
6.40(3)If rates are reduced, under section 6.40(1), a local government must
refund the owner of the land on request or credit the amount for
rates or service charges
Yes     
6.40(4)If a service charge is reduced, under section 6.40(2), and the service
charge had already been paid by the owner, the owner may request
and then the local government must pay the overpaid amount to
the owner or, alternatively, the overpaid portion is credited against
any future amounts payable. If the service charge was paid by the
occupier, the local government must pay the overcharged portion to
the person who paid it
Yes     
6.41(1)A local government must give a rate notice to the owner of rateable
land and the owner or occupier (as the case requires) of land on which
a service charge is imposed, containing the particulars required
Yes     
6.45(1)
Financial
M’gment
Reg 64(2)
When adopting its annual budget, a local government must
determine the due date for payment of instalments after the first
instalment
 Yes    
6.45(3) &
Financial
M’gment
Reg 67
A local government may impose an additional charge (including
by way of interest) where payment of a rate or service is by
instalments and that additional charge is taken to be a rate or
service charge
 Yes    
6.46A local government may, when imposing a rate or service charge,
resolve to grant a discount or incentive for its early payment
 Yes    
6.47A local government may, at the time of imposing rates and service
charges, resolve to waive a rate or service charge or grant a
concession
Yes     
6.49A local government may make an agreement with a person to pay
their rates and service charges
Yes    Yes
Financial
M’gment
Reg 66(2)
If an instalment remains unpaid after the day on which the next
instalment becomes due the local government may revoke the
ratepayer’s right to pay by instalments
Yes     
Financial
M’gment
Reg 66(3)(b)
The local government must in writing immediately notify the
ratepayer of the revocation
Yes     
6.50(1) and
6.50(2)
A local government may determine the due date that rates and
charges become due, but which date cannot be sooner than 35 days
after the date noted on the rate notice
Yes    Yes
6.51(1) &
Financial
M’gment
Reg 70
A local government may resolve to impose interest (not to exceed
13%) on a rate, service charge and any costs of recovery that
remains unpaid
 Yes    
6.56(1)A local government may recover an unpaid rate or service charge
and the cost of proceedings in court of competent jurisdiction
Yes    Yes
6.60(2)A local government may give notice (to a lessee of land in respect of
which there is an unpaid rate or service charge, requiring the lessee
to pay its rent to the local government in satisfaction of the rate or
service charge)
Yes    Yes
6.60(3)If a local government gives notice to a lessee, under section 6.60(2),
the local government must give a copy of the notice to the lessor
Yes    Yes
6.60(4)If a local government gives notice to a lessee, under section 6.60(2),
and the lessee fails to pay rent to the local government, the local
government may recover the rate or service charge as a debt from
the lessee
Yes    Yes
6.61(1)A local government may request an occupier, an agent or the person
who receives the rent of a property, to give the name and address
of the owner to the local government
Yes     
6.64(1)If any rates or service charges have remained unpaid for at least 3
years, a local government may take possession of the land and hold
the land against a person having an estate or interest in the land,
and may lease or sell the land or transfer it to the Crown or itself
  YesYes Yes subject to 5.43(d)
6.64(2)A local government that takes possession of land, under section
6.64(1), must give the owner such notice as prescribed and then affix
the notice to a conspicuous part of the land in the form prescribed
Yes     
6.64(3)A local government may lodge a caveat in respect of any land for
which rates and service charges are outstanding
Yes    Yes
6.69(2)A local government may accept payment of any outstanding rates
or service charges on such terms and conditions as are agreed
between the parties, up to the time of actual sale of the relevant
land but not more than 7 days prior to same
Yes     
6.69(3)If a local government accepts payment of outstanding rates
or service charges, under sections 6.69(1) or 6.69(2), the local
government is required to make such notifications and take such
measures as are prescribed to cancel the proposed sale
Yes    Yes
6.71(1)If a local government is unable to sell land under Part 6 Division
6 Subdivision 6 within 12 months, it may transfer the land to the
Crown or itself
  YesYes Yes subject to 5.43(d)
6.71(3)If a local government transfers land to itself, under section 6.71(1)
(b), it must pay any sum owed under a mortgage, lease, tenancy,
encumbrance or charge in favour of the Crown in right of the State
or a department, agency or instrumentality of the Crown
Yes     
6.74(1)A local government may apply in the prescribed form to the Minister
to have land revested in the Crown if it is rateable vacant land and
rates or service charges in respect of it have remained unpaid for at
least 3 years
  YesYes Yes
Financial
M’gment
Reg 77(1)
Before applying to have land revested under section 6.74, a local
government must give notice to the owner of the land and any other
interested persons and publish the notice in the Gazette
Yes     
Financial
M’gment
Reg 77(3)
A local government must consider any objections it receives in
relation to a revestment under regulation 77
  YesYes Yes
6.76(4)A local government may extend the time for a person to make an
objection in relation to the rate record
Yes YesYes Yes
6.76(5)The local government must consider any objections to the rates
record and may disallow or allow the objection either wholly or in
part
  YesYes Yes
6.76(6)The local government is to provide the person with notice of
its decision
Yes     
Part 7 – Audit Suitable for acting throughDelegation prohibitedTo a 5.9(2) (a) CtteTo a 5.9(2) (b) CtteTo a 5.9(2) (c) - (e) CtteTo the CEO
7.1A(1) and
7.1A(2)
Local government to establish an audit committee, appoint members
to the committee with a minimum of 3 members and a majority of
which are council members
 Yes    
7.1BDespite section 5.16, a local government can delegate to an audit
committee only those powers and duties contained in Part 7
 Yes    
7.3(1) and (2)A local government must appoint one or more persons, on the
recommendation of the audit committee, to be its auditor
 Yes    
7.6(2)(f)A local government may terminate the appointment of an auditor by
written notice
  Yes audit ctte
   
Audit Reg
8(1)
Where a local government has terminated an agreement with its
auditor, it must give notice and reasons for the termination to the
Executive Director within 30 days
Yes     
7.6(3)If the auditor’s registration as a company auditor is suspended or
the auditor is unable or unwilling to carry out their duties, a local
government must appoint a person to conduct or complete its audit
 Yes    
7.12A(2)A local government must meet with its auditor at least once a year  Yes audit ctte   
7.12A(3)A local government is to examine the auditor’s report, under section
7.9(1) and any report under section 7.9(3), and must determine if
any matters raised by the report require action and ensure that
appropriate action is taken
  Yes audit ctte   
7.12A(4)A local government must prepare a report on any action taken in
response to an auditor’s or section 7.9(3) report, and provide it to
the Minister
  Yes audit ctte   
Audit Reg
14(1)
A local government must carry out a compliance audit for the period
1 January to 31 December in each year
Yes     
Audit Reg
14(3)
A compliance audit return must be presented to the council at a
meeting of the council, adopted by the council and recorded in the
minutes of the meeting at which it is adopted
 Yes    
Part 8 – Scrutiny of the Affairs of Local Governments Suitable for acting throughDelegation prohibitedTo a 5.9(2) (a) CtteTo a 5.9(2) (b) CtteTo a 5.9(2) (c) - (e) CtteTo the CEO
8.2(2)Upon receiving a request from the Minister for information, a local
government must provide the information to the Minister within the
specified time of the notice
Yes    Yes
8.14(3)A local government must give the Minister advice of what things
it has done or will do to comply with an enquiry report from the
Minister or a person authorised by the Minister, within 35 days of
receiving the report
  YesYes Yes
8.23(4)A local government must give the Minister advice of what things
it has done, or will do, to comply with an Inquiry Panel’s report
within 35 days of receiving the report, or give its comment on a
recommendation to dismiss the council
  YesYes Yes
Part 9 – Miscellaneous Provisions Suitable for acting throughDelegation prohibitedTo a 5.9(2) (a) CtteTo a 5.9(2) (b) CtteTo a 5.9(2) (c) - (e) CtteTo the CEO
9.6(1)An objection under Part 9 is to be dealt with by the council or a
committee authorised by council to deal with it
 Yes    
9.6(5)The local government must give the person who made the objection
notice of how it was disposed of and reasons why
Yes    Yes
9.9(3)As soon as a decision under section 9.9(1)(b) is made, the local
government must give the affected person written notice stating the
reasons for the decision
Yes    Yes
9.10(1) and (2)The local government may appoint persons or classes of persons
to be authorised to perform certain functions and must issue them
with a certificate stating they are authorised
Yes YesYes Yes
9.60(4)A local government is to administer any regulation made under
section 9.60 as if it were a local law
Yes     
9.63(1)If a dispute has arisen between 2 or more local governments, a local
government may refer the matter to the Minister to resolve
  YesYes Yes
9.68(5)A local government may recover accruing rates from a principal or
agent who has failed to give a notice to the local government in
accordance with section 9.68
Yes    Yes
Schedule 2.1 – Provisions about Creating, Changing the Boundaries of, and Abolishing Districts Suitable for acting throughDelegation prohibitedTo a 5.9(2) (a) CtteTo a 5.9(2) (b) CtteTo a 5.9(2) (c) - (e) CtteTo the CEO
11(2)Any local governments affected by an order made under clause
2.1 are to negotiate any adjustment or transfer between them of
property, rights and liabilities
  YesYes Yes
Schedule 2.2 – Provisions about Wards and Representation Suitable for acting throughDelegation prohibitedTo a 5.9(2) (a) CtteTo a 5.9(2) (b) CtteTo a 5.9(2) (c) - (e) CtteTo the CEO
4(1)A local government must consider any submissions made under
clause 3
  YesYes Yes
4(2)If a council believes that a submission is of a minor nature or one
which would not require public submissions, it may either propose
to the Advisory Board that a submission be rejected or itself deal
with it under clause 5(b)
 Yes    
4(3)If it is a council’s opinion that a submission is substantially similar
to a submission in respect of which the local government made a
decision in the last 2 years, or the majority of affected electors who
made the submission no longer support it, the local government
may reject the submission
 Yes    
4(4)Unless a local government decides to deal with a submission under
clause 5(b) or rejects it or proposes to reject it under clauses 4(1) or
4(2), the local government must carry out a review as to whether or
not the order sought should, in the council’s opinion, be made
 Yes    
5Whether or not it has received a submission, a local government
may carry out a review as to whether or not an order under clauses
2.2, 2.3(3) or 2.18, should, in the council’s opinion, be made,
or propose to the Advisory Board the making of an order under
clauses 2.2(1), 2.3(3) or 2.18(3), if, in the opinion of the council, the
proposal is of a minor nature or one which would not require public
submissions, or propose to the Minister the making of an order
changing the name of a district
 Yes    
6A local government must carry out a review of its ward boundaries
and the number of councillors per ward every 8 years or as directed
by the Advisory Board
Yes YesYes Yes
7A local government is to provide local public notice (advising that it is
about to review its wards and inviting submissions)
Yes     
8The council must have regard to community of interests, physical
and topographical features, demographic trends, economic factors
and the ratio of councillors to electors in respect of considerations
about wards
  Yes   
9When a ward review is complete, the local government must
prepare a report for the Advisory Board and may propose the making
of an order under clauses 2.2(1), 2.3(3) or 2.18(3)
  Yes   
Schedule 6.1 – Provisions Relating to the Phasing-In of Valuation Suitable for acting throughDelegation prohibitedTo a 5.9(2) (a) CtteTo a 5.9(2) (b) CtteTo a 5.9(2) (c) - (e) CtteTo the CEO
1(1)When imposing general rates, a local government may resolve that
a general valuation, which results in an increase, can be phased in
over 3 years
 Yes    
1(5)If a local government makes a resolution, under clause 1(1), it must
request the Valuer General, at the same time as the Valuer General
determines an interim valuation that will come into force in the
district during the first 2 years of the phasing in period, to determine
a valuation under subclause (6). The local government must give the
Valuer General immediate written notice when the valuation is no
longer required
Yes     
2(1)When imposing general rates, a local government may resolve that
gross rental valuations can be phased in over 3 years
 Yes    
2(5)If a local government makes a resolution under clause 2(1), it must
request the Valuer General, at the same time as the Valuer General
determines an interim valuation that will come into force in the
district during the first 2 years of the phasing in period, to determine
a valuation under subclause (6). The local government must give the
Valuer General immediate written notice when the valuation is no
longer required
Yes     
Schedule 6.2 – Provisions Relating to Lease of Land where Rates or Service Charges Unpaid Suitable for acting throughDelegation prohibitedTo a 5.9(2) (a) CtteTo a 5.9(2) (b) CtteTo a 5.9(2) (c) - (e) CtteTo the CEO
1(1)A local government may lease the land with any conditions for a
term that does not exceed 7 years
Yes YesYes Yes subject to 5.43(d)
Schedule 6.3 – Provisions Relating to the Sale or Transfer of Land where Rates or Service Charges Unpaid Suitable for acting throughDelegation prohibitedTo a 5.9(2) (a) CtteTo a 5.9(2) (b) CtteTo a 5.9(2) (c) - (e) CtteTo the CEO
1(1)Before exercising its power of sale, a local government must give
the owner, or any other person who has a recorded interest in the
land, opportunity to pay the rates or service charges. It must send
them notice by certified mail and place a notice [with the contents
prescribed in clause 1(2)] on its notice board for a minimum of
35 days
Yes     
1(3)A local government must give local public notice (if the owner or
other interested parties do not have a recorded address)
Yes     
1(4)The local government must appoint a time at which the land may be
offered for sale by public auction, not less than 3 months and not
more that 12 months from the service of the notice under clauses
1(1) or 1(2)
  YesYes Yes
2(1)The local government must give (Statewide public notice of the sale)Yes     
2(3)The local government must give the Registrar of Titles or the
Registrar of Deeds a memorial of the Statewide notice
Yes     
4(1)A local government may transfer or convey to the purchaser of the
land an indefeasible estate in fee simple
  YesYes Yes subject to 5.43(d)
7(2)If the land has not been sold within 12 months, the local
government may begin the process again in accordance with
this Schedule
Yes     

 

Page reviewed 25 June 2019