The department assists and monitors the process of making local laws in Western Australia. The department works closely with the Western Australian Local Government Association (WALGA), Local Government Professionals WA (LGPro) and the Parliamentary
Joint Standing Committee on Delegated Legislation in coordinating advice to local governments on the making of good local laws. This operational guideline covers many issues on local laws including:
The Parliament’s Joint Standing Committee on Delegated Legislation has prepared numerous reports commenting on the standard of local government local laws. Its most recent Report No 16 and other reports are available on Parliament’s website.
Section 3.5 of the Local Government Act 1995 (the Act) provides the power for local governments to make local laws to help perform their functions. Section 3.7 of the Act states that a local law is inoperative to the extent that it is inconsistent with
the Act or any other written law.
In making a local law, a local government must follow the steps which are set out below and in section 3.12 of the Act (see Appendix 1 which provides a flow chart of the steps for making a local law):
Local law information is accessible from the department’s website.
The Local Law Register is a database of all local law titles made by each local government. It has a search facility to allow local governments to look for gazettal information.
For information on the Joint Standing Committee on Delegated Legislation, visit the Parliamentary website. The website also contains a list of committee reports and the undertakings requested from local governments regarding local laws.
For additional assistance on local law-making processes, please contact the department’s Local Laws Helpline on 61 8 6552 1494 or email
Whilst information and suggestions will be offered, local governments will at times need to obtain independent legal advice on specific issues. The WA Local Government Association (WALGA) also operates a local laws service to its member local governments.
It has published a series of Model Local Laws, which were originally developed in conjunction with the department.
Section 3.12(3) of the Act requires local governments to advertise their proposed local laws and provide the public with a statutory period of ‘not less than six weeks after the notice is given’ in which to lodge submissions. For the
purposes of a written law, the Interpretation Act 1984 provides that the computation of time does not include the first and last day of the event.
When calculating the closing date on which submissions can be made, there must be a minimum of 42 clear days to meet the requirement of ‘not less than six weeks’. Remember to exclude both the first day of advertising the public notice and
the last day on which submissions can be lodged, a requirement of section 61(1)(f) of the Interpretation Act 1984. Also, the last day on which submissions can be lodged cannot fall on a Saturday, Sunday or public holiday, but rather the next possible
working day. It is far better to provide a longer public consultation period than to risk invalidating the local law.
The following is an example of calculating the minimum public consultation period. If your notice is to be advertised in the paper on Thursday, 16 August 2012, exclude this day from the six-week period; then add 42 days to the date on which the notice
is to be published. The 42nd day falls on Thursday, 27 September 2012. The next day shall be the latest day by which submissions must be lodged, that is, Friday, 28 September 2012. Similarly, ensure that all the required information is included in
the public notice.
The requirements are set out at section 3.12(3)(a)(i)–(iii) of the Act for the first public notice (proposed local law) and at section 3.12(6)(a)(c) of the Act for the final public notice (adoption of local law).
The department monitors local law advertisements to check for compliance with the requirements of the Act. Should statutory requirements not be met, local governments will be advised to re-advertise to ensure that the local law is made within power (see
Appendix 2 for examples of notices).
Section 3.12(3)(b) of the Act requires local governments to give the Minister for Local Government (and another Minister, where applicable) an electronic copy and a hard copy of the proposed local law. This first copy should be exactly as it is intended
to be published (gazettal format) in the Government Gazette so that assistance can be given to eliminate problems before the adoption process is substantially advanced and the local government unnecessarily expends its resources.
If your local government intends to adopt local laws by reference (that is, adopt local laws already published by another local government), you need to supply a copy of the abridged version (in gazettal format) as well as the full text version of the
local law. Checking the full text will assist to ensure that your local government will not be adopting clauses that are not pertinent to your district.
If your local government is substantially adopting a WALGA model, it would be appreciated if you would indicate by underlining or highlighting in colour, or by similar means, the variations being undertaken. If you are preparing an amendment local law,
please also supply the consolidated version of the local law, that is, the full text of the law with the amendments incorporated.
Where another Minister administers other written laws (e.g. Health Act 1911, Bush Fires Act 1954 and Agriculture and Related Resources Protection Act 1976), a copy of the proposed local law must be provided to that Minister in addition to the copy for
the Minister for Local Government (see sections 3.12(3)(b) and 3.12(5) of the Act).
The Health Act 1911 also requires the approval of the Executive Director Public Health prior to adopting Health local laws under that Act.
An NCP review involves looking at a local law to see if any clauses (including amendments to principal local laws) restrict competition and, if so, that the restrictions can be justified in terms of overall public benefit outweighing the disadvantages.
It should also be established that the objectives of the proposed local law can only be achieved by the restrictions to competition.
Completed NCP forms should be submitted at the same time as the proposed local laws are submitted to the Minister. Your local government needs to make a statement that competition policy restrictions, where applicable, have been assessed during the preparation
of the proposed local laws. Please note that the NCP report should be available for inspection and comment by the public, along with the proposed local law.
The list of local laws that are exempt from NCP review are available from the department’s website via reference to local government, local laws, overview, key circulars, Circular No. 916 or Circular No. 824 for a blank NCP review form.
Once an error has been published, it cannot be corrected by simply publishing a correction notice in the Gazette. A correction notice can only be used where the State Law Publisher has made a printing error or the error is something different to what
the local government submitted for publishing. Any other changes to the published law, however small, must be made by way of a new proposed amendment local law, requiring fresh and full compliance with all of the steps of the process in section 3.12
of the Act.
If your local government is adopting the text of another local government’s local law, be careful to check the accuracy and details of the law you will be adopting. Several local governments using this method have had to make amendment local laws
to rectify the transmission of errors from the preceding gazettals. It is important to ensure that you are not adopting outdated text of another local government’s local law.
Another problem is adopting another local government’s local laws by reference where that local government has already adopted the local law by reference. This creates a ‘doubling’ effect that is confusing to the reader and often unintended
Local governments should confirm that the gazettal date of the local law being adopted by reference is the date the law was actually published in the Gazette and not the date it was passed by that council; otherwise, your local law will attempt to adopt
a law that does not legally exist.
If you want to adopt both the text of another local government’s local law and a later amendment (possibly a correction) to this law, you need to specify both dates in the preamble.
Local governments are advised against the practice of adopting gazettals by reference to a local law ‘as amended in the future’. Under section 3.8 of the Act, this practice may apply for the adoption of model local laws (section 3.9 of the
Act) but not for adopting another local government’s local laws. Also, by including their future amendments, you would incorporate another local government’s decisions about their local law into your local law without your council having
any input, consultation or (often) knowledge of these decisions whenever they occur in the future.
Some local governments are not aware that when amending or repealing a local law, this needs to be done in accordance with section 3.12 of the Act, which is the same procedure for ‘making’ a local law. This is because amendment or repeal local
laws are new local laws themselves and must follow the full statutory process to be made within power.
Section 3.16 of the Act requires that all of the local laws of local governments must be reviewed within an eight year period after their commencement to determine if they should remain unchanged or be repealed or amended.
The eight-year period is taken to be from either when the local law commenced or when the last review of the local law (using section 3.16 of the Act) was completed.
Section 3.16 of the Act provides for reviewing the currency and suitability of gazetted local laws – this section cannot be used for amending or repealing legislation. When the outcome of the review finds that it is necessary to change an outdated
aspect of the law or that the subsidiary legislation has become defunct or obsolete, the local government must then commence the process outlined in section 3.12 of the Act to implement any changes.
While the Act does not expressly prescribe a timeframe in which the procedural requirements for making local laws are to be completed, the procedures should be undertaken with ‘all convenient speed’ in line with the Interpretation Act 1984.
It is the department’s understanding that local law procedures that take more than a year could be subject to questions of legal validity. Accordingly, if the local law process has had delays of more than a year, then the procedure for making
a local law should be restarted.
Section 3.12(4) and (5) requires a local government:
The department examines the proposed local laws on behalf of the Minister. This is done when, pursuant to section 3.12(3)(b) of the Act, local governments provide a copy of the proposed local law and a copy of the notice to the Minister. The department
gives specific consideration to the following:
The department works closely with WALGA and the Joint Standing Committee on Delegated Legislation of the Parliament to ensure that the proposed content of the local laws will be generally acceptable to all concerned.
The Joint Standing Committee on Delegated Legislation is a joint committee of the Parliament of Western Australia comprising eight members with equal representation from the Legislative Council and the Legislative Assembly.
The committee has been delegated, by Parliament, the task of scrutinising subsidiary legislation in accordance with its terms of reference. These terms of reference were set in June 2001. The terms of reference and copies of all reports tabled by the
committee (and former committees) can be downloaded from the Parliament of Western Australia’s website.
The committee can be contacted by email on email@example.com or by telephoning the Legislative Council Committee Office on +61 8 9222 7300.
Local laws are subsidiary legislation that are capable of disallowance by either House of Parliament under section 42 of the Interpretation Act 1984. Disallowance is the device by which the Parliament maintains control of the power it has delegated to
local governments, State Departments and other agencies of the Government to make subsidiary legislation. In the case of local governments, this power is granted by the Act and other particular Acts including the Health Act 1911 and the Dog Act 1976.
Scrutiny by the committee and disallowance are accountability mechanisms to guard against the making of local laws that are either unlawful by going beyond the power that is delegated or contravening one of the Committee’s terms of reference.
The other accountability mechanisms impacting on local laws are:
Because it is Parliament that delegates the power to make local laws, the Parliament can, by disallowance, ensure that the power is not abused or exercised inappropriately. The committee, through being empowered by Parliament to scrutinise local laws
on its behalf, can recommend to Parliament that a local law be disallowed if it contravenes one of its terms of reference.
The committee recommends disallowance as a last resort. Such action will usually only occur in circumstances where the local government does not satisfy the concerns of the committee. In the majority of cases to date, where the committee has expressed
concerns about a local law, the relevant local government has provided the committee with a satisfactory written undertaking to address the concerns by amending or repealing parts of the local law.
The committee’s Explanatory Memoranda Directions (see Ministerial Circular No. 04-2010) set out the information to be sent directly to the committee (not the department) as soon as a local government has gazetted a local law. After completing the
procedural steps from sections 3.12(1) to 3.12(6) of the Local Government Act 1995, section 3.12(7) requires local governments to provide explanatory material for each local law gazetted. Preparing an Explanatory Memorandum forms part of the process
of making a local law (section 3.12(7) of the Act).
Ministerial Circular 04-2010 provides examples and a checklist of the material to send, which must occur within 10 working days of the Gazette publication date.
Refer to section 3.12(3) – Local public notice.
Local Government Act 1995
Shire of Treetops
Proposed Local Government
Property Local Law
The Shire of Treetops proposes to make a local law relating to local government property.
The purpose of this local law is to regulate the care, control and management of property of the local government.
The effect of this local law is to control the use of local government property; it provides that some activities are permitted only under a permit or under a determination, and that some activities are restricted or prohibited. Offences are created for
inappropriate behaviour in or on local government property.
A copy of the proposed local law may be inspected at or obtained from the Shire’s office at 2 Treetops Avenue, Community Vale, between 8.00am and 4.30pm Monday to Friday, and at any public library within the Shire of Treetops during normal opening
Submissions about the proposed local law may be made to the Chief Executive Officer, Shire of Treetops, PO Box 101, Community Vale WA 6484 by Friday, 2 September 2011.
Chief Executive Officer
Refer to section 3.12(6) – local public notice.
The Shire of Treetops has resolved to adopt the Shire of Treetops Local Government Property Local Law 2006.
A copy of the local law may be inspected at or obtained from the Shire’s office at 2 Treetops Avenue, Community Vale between 8.00am and 4.30pm Monday to Friday, and at any public library within the Shire of Treetops during normal opening hours.
This local law was gazetted on 14 October 2006 and will come into operation on 28 October 2011.
Do not submit enquiries with this form.