Western Australian Consolidated Acts Western Australian Consolidated Acts[Section 9.71]
[Heading amended by No. 2 of 2012 s. 25.]
Division 1 — Provisions for
Local Government Act 1995
[Heading inserted by No. 2 of 2012 s. 26.]
[Heading inserted by No. 2 of 2012 s. 26.]
In this Schedule
unless the contrary intention appears —
commencement day means the day on which this Act
comes into operation;
continuing authority means a former municipality
that, on the commencement day, continues in existence as a local government;
designated employee has the meaning given by
section 5.74;
former district means a district that existed
under the former provisions immediately before the commencement day;
former municipality means a municipality that,
under the former provisions, was constituted by the inhabitants of a former
district immediately before the commencement day;
former provisions means the Local Government
Act 1960 4 as in force before the commencement day;
senior employee means an employee designated as a
senior employee under section 5.37.
2 . Interpretation Act 1984 applies
This Schedule does not
limit the operation of the Interpretation Act 1984 .
3 . Construction of references in written laws
(1) Unless the context
otherwise requires, a reference in a written law to an enactment repealed by
this Act includes a reference to the corresponding provision, if any, of this
Act.
(2) A reference in a
written law to a municipality under the Local Government Act 1960 4 may,
where the context so requires, be read as if it had been amended to include or
be a reference to a local government under this Act.
(3) A reference in a
written law to a regional council under the Local Government Act 1960 4
may, where the context so requires, be read as if it had been amended to
include or be a reference to a regional local government under this Act.
(4) A reference in a
written law to the town clerk or shire clerk of a municipality may, where the
context so requires, be read as if it had been amended to include or be a
reference to the CEO of a local government.
(5) A reference in a
written law to the secretary of a regional council may, where the context so
requires, be read as if it had been amended to include or be a reference to
the CEO of a regional local government.
Subdivision 2 — Continuation of constitutional
arrangements, membership and appointments
[Heading inserted by No. 2 of 2012 s. 27.]
4 . Former districts continue as districts
(1) On the
commencement day —
(a) a
former district becomes a district as if it had been declared to be a district
under section 2.1; and
(b) its
name is to be derived from the name of the former municipality by omitting
“Town of”, “City of” or “Shire of”, as the
case requires, unless subclause (2) applies.
(2) If
subclause (1)(b) would result in 2 or more districts having the same
name, the name of each of those districts is to be derived by adding after the
name they would have either “(Town)”, “(City)”, or
“(Shire)”, as is appropriate.
(3) The former
district becomes a city, town or shire under this Act according to which of
those the former municipality was under the former provisions even if it does
not meet the relevant requirements under section 2.4.
5 . Former municipalities continue as local
governments
The local government
of a former district that becomes a district under this Act is a continuation
of, and the same legal entity as, the former municipality, and has the same
name.
6 . Former councils continue as previously
constituted
(1) On and after the
commencement day, the council of a continuing authority continues as if it had
been constituted, and its members had been elected, under this Act.
(2) Without limiting
subclause (1), the number of offices of councillor on the council of a
continuing authority remains the same until changed under this Act even if the
number does not meet the relevant requirements under section 2.17.
(3) The Advisory
Board, in a written report to the Minister, is to recommend the making of an
order under section 2.18(3)(a) or (c) if in the opinion of the Advisory
Board that order is necessary to ensure that the ordinary elections of a
continuing authority held on 7 May 2005 are held on the basis of
there being a number of offices of councillor on the council that meets the
relevant requirements under section 2.17.
(4) The Advisory Board
can make a recommendation under subclause (3) whether or not the
continuing authority has made a proposal to it under Schedule 2.2.
(5) For the purposes
of deciding on any recommendation it is to make under subclause (3), the
Advisory Board may carry out any inquiry it thinks necessary.
(6) The Advisory Board
may recover the amount of the costs connected with an inquiry under
subclause (5) from the continuing authority as if it were for a debt due.
(1) If, immediately
before the commencement day, a former district had a ward system under the
former provisions that system (including the boundaries of the wards and the
numbers of offices of councillor for the wards) continues to apply on and
after the commencement day until it is changed or discontinued under this Act.
(2) If
subclause (1) applies to the district of a continuing authority, the
continuing authority is to carry out the first review of its ward system under
Schedule 2.2, clause 6 within 8 years after the commencement
day.
8 . Former method of electing mayor or president
continued
The method of filling
the office of mayor or president of a continuing authority which had effect
under the former provisions immediately before the commencement day continues
to have effect on and after the commencement day until a decision under
section 2.11(2) to change to the other method mentioned in
section 2.11(1)(a) or (b) takes effect.
If, immediately before
the commencement day, the functions of the council and the mayor or president
of a continuing authority were being performed by a commissioner appointed
under the former provisions, that appointment continues to have effect,
subject to its terms, under this Act.
10 . Regional councils continued
A regional council
constituted under the former provisions that was in existence immediately
before the commencement day continues in existence as a regional local
government on and after that day as if —
(a) it
had been constituted as a regional local government under this Act;
(b) the
regional councillors had been appointed as members of the regional local
government under this Act; and
(c) the
constitution agreement included the provisions of sections 699 to 702,
704 to 707 and 709 of the former provisions and had been approved by the
Minister as an establishment agreement under this Act.
11 . Local Government Associations continued
The associations
constituted by Part 9, Division 5, are the same legal entities as
the associations that were constituted under Part XXX of the former
provisions.
Subdivision 3 — Electoral matters
[Heading inserted by No. 2 of 2012 s. 28.]
12 . Enrolment of certain electors may continue
(1) In this
clause —
existing roll means an owners and occupiers roll
prepared in respect of a district or ward under section 43 of the former
provisions and not superseded by another owners and occupiers roll prepared
under that section.
(2) Despite
section 4.30(1)(a) if a person who is not enrolled as an elector for the
Legislative Assembly or the House of Representatives —
(a) owns
or occupies rateable property within a district or ward ( the electorate );
(b) was
named as an elector in respect of that property or any other property on an
existing roll for the district, or a ward of the district, or would have been
so named if his or her name had not been omitted in error; and
(c) has
owned or occupied rateable property within the district continuously since
that existing roll was prepared,
the person is to be
regarded for the purposes of this Act as being eligible under
section 4.30(1)(a) and (b) to be enrolled to vote at elections for the
electorate.
(3) The CEO of a
continuing authority is to ensure that copies of the existing roll or existing
rolls relating to the former municipality are retained on a permanent basis
after the commencement of this Act.
13 . Existing provisions continue for elections
before 1997 ordinary elections
Despite the
commencement of this Act, if an election is held to fill a vacancy in the
office of a councillor or a mayor or president elected by the electors and the
poll for the election takes place (or would, if needed, have taken place)
before 3 May 1997, the former provisions, as in force immediately
before the commencement day, continue to apply in relation to the election and
the filling of the vacancy as if this Act had not commenced.
14 . Transition from annual to biennial election
system
(1) This clause
applies to a continuing authority if, immediately before the commencement day,
it was under the annual election system under the former provisions.
(2) A continuing
authority to which this clause applies may decide —
(a) that
the terms of office of each councillor, and the mayor or president where the
mode of election is by the electors, will expire on 3 May 1997 and,
in that case, any of those terms of office that would, but for this clause,
continue beyond that day is, by operation of this clause, reduced to the
extent necessary to make it expire on that day; or
(b) that
the terms of office of each councillor, and the mayor or president where the
mode of election is by the electors, will continue unaffected by this Act and,
in that case —
(i)
the term of office of a councillor, or mayor or
president, where the mode of election is by the electors, elected to fill an
office that becomes vacant on 3 May 1997, is 4 years;
(ii)
the term of office of a mayor or president, where the
mode of election is by the electors, elected to fill an office that becomes
vacant on 2 May 1998, is 3 years; and
(iii)
a term of office of either one year or 3 years shall
be fixed by the returning officer for any councillor elected to fill an office
that becomes vacant on 2 May 1998 so as to give effect to
clauses 1 and 2 of Schedule 4.2 in relation to the years 1999 and
2001.
(3) A decision made
under subclause (2)(a) or (b) on or after 14 February 1997
has no effect.
(4) A decision made
under subclause (2)(b) has no effect unless it is approved by the
Minister.
(5) If a continuing
authority to which this clause applies does not make an effective decision
under subclause (2)(a) or (b) —
(a) the
term of office of a councillor, or the mayor or president where the mode of
election is by the electors, that would, but for this clause, expire on
2 May 1998 is, by operation of this clause, reduced so that it
expires on 3 May 1997;
(b) the
term of office of a councillor, or the mayor or president where the mode of
election is by the electors, that expires on 3 May 1997 or
1 May 1999 continues unaffected by this clause; and
(c)
without limiting clause 5 of Schedule 4.2, a term of office of
2 years may be fixed for a councillor or councillors elected at the
ordinary elections held during 1997 so as to give effect to clauses 1 and
2 of Schedule 4.2 in relation to the year 1999.
[Clause 14 amended by No. 57 of 1997
s. 81(2) and (3).]
14A . Transition to October elections
(1) In this
clause —
amending Act means the Local Government Amendment
Act 2006 ;
new ordinary election day provisions means
section 4.7 as amended by section 6 of the amending Act.
(2) If by operation
of —
(a) item
3, 8, 9 or 10 of the Table to section 2.28; and
(b) a
determination made by the returning officer under section 4.78 before the
coming into operation of section 6 of the amending Act,
the term of office of
a councillor would end on the first Saturday in May in a year, that term of
office is to end on the third Saturday in October in that year (but note
section 2.30).
(3) Despite
section 3.64(e), the establishment agreement for a regional local
government may be amended under section 3.65 in consequence of the new
ordinary election day provisions even though the amendments result in the
current chairman and deputy chairman of the regional local government holding
office for terms exceeding 2 years.
[Clause 14A inserted by No. 66 of 2006
s. 15.]
Subdivision 4 — Administration
[Heading inserted by No. 2 of 2012 s. 29.]
(1) A person employed
or engaged by a continuing authority who was working for it immediately before
the commencement day is to be taken as being employed by it on the same terms
and conditions, including as to remuneration, as those which applied to the
person immediately before the commencement day.
(2) Under
subclause (1) the person who was formerly the clerk of the continuing
authority becomes its CEO.
(3) A person to whom
this clause applies retains all existing and accruing rights and benefits as
if employment under this Act were a continuation of the person’s
employment or engagement immediately before the commencement day.
16 . Superannuation
schemes — transitional and savings
(1) Despite the repeal
of Part VIA ( “Employee Superannuation” ) of the former
provisions, the provisions of that Part 7 that applied to a municipality
or to the City of Perth (within the meanings of that Part) continue to apply
to the continuing authorities in respect of each such municipality or the City
of Perth as if this Act had not commenced and so apply until regulations are
made under section 5.47 in relation to that continuing authority.
(2) Regulations under
this Act may amend the former provisions as continued by subclause (1).
17 . Long service
benefits — transitional and savings
(1) Despite the repeal
of section 161 of the former provisions, the provisions of that section
and regulations made under it that, immediately before the commencement day,
applied to an employee as defined in that section continue to apply in respect
of that person as if this Act had not commenced and so apply until regulations
are made under section 5.48 in relation to that person.
(2) Regulations under
this Act may amend the provisions of section 161 of the former
provisions, and regulations made under that section, as continued by
subclause (1).
18 . Committees continue until first ordinary
elections
(1) On and after the
commencement day, any committee of a continuing authority existing under the
former provisions continues as if it had been established, its members had
been appointed and its presiding member had been elected, under this Act.
(2) A committee to
which subclause (1) applies is dissolved on 3 May 1997.
(3) A committee to
which subclause (1) applies —
(a) has,
and can be delegated, the powers which it would have had, or could have been
delegated, if it had been established under this Act;
(b) does
not have, and cannot be delegated, any powers other than those referred to in
paragraph (a).
19 . Delegations continue for up to a year
(1) If a delegation
under the former provisions of a power or duty of a kind that can be delegated
under this Act has effect immediately before the commencement day, that
delegation continues to have effect on and after the commencement day as if it
had taken place under this Act.
(2) A delegation to
which subclause (1) applies continues to have effect
until —
(a) it
is revoked in accordance with the terms of the relevant power under which the
delegation took place; or
(b) the
expiration of one year from the commencement day,
whichever happens
first.
A continuing authority
is to prepare its first annual report under section 5.53 in relation to
the financial year that ends on 30 June next following the commencement
day.
21 . First plan for principal activities
A continuing authority
is to prepare its first plan for principal activities under section 5.56
for the period that begins on 1 July next following the commencement day.
A continuing authority
is to prepare or adopt its first code of conduct within one year of the
commencement day.
23 . First declaration by certain designated
employees
If a person is or has
become a designated employee of a continuing authority before
3 May 1997 then, for the purposes of Part 5, Division 6,
Subdivision 2, a reference to the start day in relation to that person is
a reference to 3 May 1997.
24 . Previous records to be kept by continuing
authorities
All registers, records
and documents which a former municipality was required under the former
provisions to keep are to be kept by the continuing authority for the purposes
for which the registers, records or documents were required to be kept under
those provisions.
Subdivision 5 — Financial management and audit
[Heading inserted by No. 2 of 2012 s. 30.]
If a notice published
by a continuing authority under section 532(3d) of the former provisions
is in force immediately before the commencement day —
(a) that
notice continues to have effect after the commencement day according to its
terms; and
(b)
section 532(3e) and (3f) of the former provisions continue to apply to
that notice while the notice is in effect as if the reference in
section 532(3f)(a) to subsection (3)(c) were a reference to
section 6.26(2)(g).
26 . Land declared to be exempt from the payment
of rates
(1) If land has been
declared by the Governor under section 532(8) or (10) of the former
provisions to be exempt from municipal rates and that declaration is in force
immediately before the commencement day, the land is to be treated as land
declared by the Minister under section 6.26(4) to be exempt from rates
and the Minister may by declaration made under that subsection cancel or vary
that declaration.
(2) If land has been
declared by a council under section 532(12) (as read with
section 532(11)) of the former provisions to be exempt from municipal
rates and that declaration is in force immediately before the commencement
day, the land is to continue to be exempt from rates under this Act until the
continuing authority cancels that declaration, and those subsections continue
to have effect for the purposes of this clause.
(1) Until a
determination is made by the Minister under section 6.28 a continuing
authority is to continue to use the system of valuation that was applicable to
it, immediately before the commencement day, under section 533 of the
former provisions.
(2) If an Order under
section 533(17) of the former provisions is in force immediately before
the commencement day that Order continues to have effect on and after the
commencement day according to its terms but is to be taken to be a
determination by the Minister under section 6.28 and may be amended by
the Minister under that section.
[Clause 27 amended by No. 57 of 1997
s. 81(4).]
If, before the
commencement day, a continuing authority has commenced proceedings under Part
XXV, Subdivision B or C, of the former provisions, the former provisions
continue to have effect in relation to those proceedings until such time as
they are completed.
29 . Continuation of debentures issued
If a continuing
authority has —
(a)
issued a debenture under Part XXVI of the former provisions; and
(b)
established a sinking fund under section 615 of the former provisions,
sections 615 to
624 of the former provisions continue to have effect in respect of that
debenture until such time as the debenture reaches maturity.
(1) If a continuing
authority has established a general reserve account under section 528 of
the former provisions, the continuing authority is to, not later than
2 years from the commencement day —
(a) use
the money for an authorised purpose; or
(b)
transfer the money to a reserve account maintained for a purpose in accordance
with section 6.11.
(2) The continuing
authority is to —
(a)
disclose in its annual budget any action to be taken under subclause (1);
or
(b)
where it is proposed to take any action under subclause (1) after the
adoption of the annual budget, give one month’s local public notice of
the proposal.
(3) The continuing
authority is to disclose action taken under subclause (1) in the annual
financial report for the year in which the action is taken.
If a continuing
authority has given notice of a proposal to borrow money by the issue of
debentures under Division 3 of Part XXVI of the former provisions but the
notice period required under section 610 of the former provisions has not
expired before the commencement day —
(a)
subject to paragraph (b), the former provisions continue to apply in
relation to that proposed borrowing as if this Act had not commenced; but
(b) the
continuing authority is not required to conduct a loan poll under
section 611 of the former provisions unless a demand for such a poll was
delivered in accordance with that section to the local government before the
commencement day.
A person who was an
auditor of a continuing authority immediately before the commencement day is
to be regarded as having been appointed by the continuing authority under
Part 7 and the provisions of that Part relating to the term of office of
the auditor and the circumstances in which the appointment ceases to have
effect apply to that appointment.
Subdivision 6 — Former by-laws, uniform general by-laws
and regulations
[Heading inserted by No. 2 of 2012 s. 31.]
(1) Unless otherwise
provided, a provision of an Act that, immediately before the commencement day,
gave a former municipality power to make by-laws is to be read, on and after
the commencement day, as if it had been amended to give a power to a local
government to make local laws.
(2) Without limiting
Part 3, Division 2, Subdivision 2, any provision relating to
the exercise of the former power to make by-laws applies to the exercise of
the power to make local laws.
(3) On the
commencement day a by-law of a continuing authority under another Act (other
than the former provisions) becomes a local law of the continuing authority
under that other Act.
(4) On the
commencement day a by-law of a continuing authority under the former
provisions becomes a local law of the continuing authority under this Act, but
in construing terms used in it account is to be taken of the meanings those
terms had before the commencement day.
(4a) An order made
under section 190(8) of the former provisions continues to have effect in
respect of the application to the relevant area of —
(a)
by-laws which applied to the area under the order immediately before the
commencement day; and
(b)
local laws amending those by-laws.
(4b) An order made
under section 190(8) of the former provisions may be revoked under
section 3.6(3) as if it was an approval given under section 3.6(1).
(5) On the
commencement day a by-law of a continuing authority that was made under or for
the purposes of a former provision about infringement notices is to be read,
unless the context otherwise requires, as if it had been amended to the extent
necessary for it to apply for the purposes of Part 9, Division 2,
Subdivision 2.
(6) In any other
written law, apart from section 42 of the Interpretation Act 1984 ,
a reference to a by-law of a former municipality is to be read as if it had
been amended to be a reference to a local law.
(7) The citation of
by-laws that, under this Act or section 7 of the Local Government
(Consequential Amendments) Act 1996 , become local laws (in the provision
assigning the citation to the by-laws and in a reference in a written law to
that citation) is to be read as if “ By-law ” or “ By-laws
”, where it occurs in that citation, had been amended to be “
Local laws ”.
[Clause 33 amended by No. 14 of 1996
s. 4; No. 49 of 2004 s. 73(2).]
34 . First periodic review as a local law
For the purposes of
section 3.16(1) a written law that was already in force before being
continued under this Act as a local law is to be regarded as having commenced
when it became a local law.
35 . Former uniform general by-laws continued
(1) A provision of the
Dog Act 1976 or the Control of Vehicles (Off-road Areas) Act 1978
that, immediately before the commencement day, gave the Governor power to make
uniform general by-laws is to be read, after the commencement day, as if it
had been amended to give a power to make regulations.
(2) Any provision
relating to the exercise of the former power to make uniform general by-laws
applies to the exercise of the power to make regulations.
(3) On the
commencement day a uniform general by-law made by the Governor under the
Dog Act 1976 or the Control of Vehicles (Off-road Areas) Act 1978
becomes a regulation under that Act.
(4) On the
commencement day a uniform general by-law made by the Governor under the
former provisions becomes a regulation under section 9.60, but in
construing terms used in it account is to be taken of the meanings those terms
had before the commencement day.
(5) In any other
written law a reference to a uniform general by-law is to be read as if it had
been amended to be a reference to a regulation.
36 . Former regulations continued
On the commencement
day a regulation under section 245A or 433A of the former provisions
becomes a regulation under section 9.60, but in construing terms used in
it account is to be taken of the meanings those terms had before the
commencement day.
[Heading inserted by No. 2 of 2012 s. 32.]
Land that was, under
the former provisions, a townsite because it was declared to be a townsite
under those provisions or under an Act repealed by the Local Government
Act 1960 4 is to be regarded as having been constituted a townsite, and
given its name, under section 10 of the Land Act 1933 5 .
38 . Gates across thoroughfares in cities or towns
(1) A licence under
section 333 of the former provisions continues in force after the repeal
of that section if it would have done so had that section not been repealed,
and that section (in subclause (2) called the former section ) continues
in operation after its repeal for the purposes of the cancellation of such a
licence.
(2)
Section 9.65(1) applies to an order under the former section cancelling
the order under which the licence was granted.
39 . Deferments under
Rates and Charges (Rebates and Deferments) Act 1992
The
Rates and Charges (Rebates and Deferments) Act 1992 continues to apply
to the payment of an amount that had been deferred under the former provisions
if, under those provisions, it applied to that payment.
(1)
Section 3.59(8) does not apply in relation to an activity
that —
(a) was
commenced before the commencement day; and
(b)
would have been a major trading undertaking before the commencement day if
this Act had already been in operation,
if it is not intended
to carry the activity on beyond the period of 2 years after the
commencement day.
(2) If it is intended
to carry the activity on beyond the period of 2 years after the
commencement day, section 3.59(8) does not apply until one year after the
commencement day.
(3) Where an agreement
that is a part of a land transaction was entered into before the commencement
day, section 3.59(9) does not apply in relation to the doing of anything
as a result of which the transaction would become a major land transaction if
it is intended that the purpose of the transaction will be fulfilled within
the period of 2 years after the commencement day.
(4) If it is not
intended that the purpose of the transaction will be fulfilled within the
period of 2 years after the commencement day, the application of
section 3.59(9) in relation to the doing of anything during the first
year after the commencement day is modified to allow the local government to
comply with the requirements referred to in that subsection after the thing
has been done but not later than the end of that year.
41 . Evidence in proceedings under former
provisions
The provisions in Part
XXVIII, Division 1, Subdivision B of the former provisions continue to
apply in relation to legal and other proceedings about matters that arose
under the former provisions before the commencement day.
Division 2 — Provisions for the Local Government
Amendment Act 2012
[Heading inserted by No. 2 of 2012 s. 33.]
amending Act means the Local Government Amendment
Act 2012 .
[Clause 42 inserted by No. 2 of 2012 s. 33.]
43 . Saving provisions for CEOs
(1) In this clause
—
preserved CEO , in relation to a local government,
means a person who is employed, other than in an acting or temporary capacity,
as the CEO of the local government on 19 October 2011.
(2) Section 5.39(7)
does not apply in respect of —
(a) a
CEO for such time as that person is employed under a contract of employment
—
(i)
that was entered into or renewed before section 13 of the
amending Act came into operation; or
(ii)
for a position that was advertised before section 13 of
the amending Act came into operation;
or
(b) a
preserved CEO of a local government if —
(i)
the remuneration paid or provided to the CEO on 19
October 2011 under a contract of employment was more than the amount
recommended by the Salaries and Allowances Tribunal under the
Salaries and Allowances Act 1975 section 7A to be paid or provided to the CEO
at that time; and
(ii)
the CEO continues to be employed as the CEO of that local
government.
(3) Section 5.39(8)
does not apply to a local government that is renewing a contract of employment
with its preserved CEO in the circumstances set out in subsection (2)(b).
(4) Before a local
government renews a contract with its preserved CEO in circumstances set out
in subsection (2)(b), the local government must take into account any
determination by the Salaries and Allowances Tribunal under the
Salaries and Allowances Act 1975 section 7A as to the remuneration to be paid
or provided to a CEO of a local government that is of a comparable size and
location.
[Clause 43 inserted by No. 2 of 2012 s. 33.]
44 . Section 6.14(1) does not apply to
existing investments
Section 6.14(1)
as in force immediately before the coming into operation of section 19(1)
of the amending Act (the amending provision ) continues to operate in respect
of any investment made under section 6.14(1) before the coming into
operation of the amending provision but does not operate so as to allow any
reinvestment under that provision.
[Clause 44 inserted by No. 2 of 2012 s. 33.]