The proposed Local Government Bill 2019, once passed through parliament, will deliver on the Victorian Government’s commitment to create a new Local Government Act and leads on from the Local Government Act Review which was informed by extensive engagement with councils, ratepayers, stakeholders and the wider community.
The proposed Local Government Bill 2019 builds on the reforms presented in 2018 and will deliver a more modern and robust Act that will:
- Allow councils to improve the services they deliver for communities, focusing on better financial management and engaging the community in decision-making
- Improve councillor conduct with clearer standards of behaviour and stronger mechanisms to address poor conduct;
- Provide stronger local democracy with direct accountability to the community;
- Give the community confidence by making reforms to election processes and candidate requirements; and
- Provide a new relationship between State and local government and the community, removing any unnecessary Ministerial approvals and arbitrary powers.
A high-level review of the Local Government Bill 2018 has provided the opportunity to include some additional reforms designed to further improve and strengthen the 2018 Bill.
The new reforms include:
- Simplifying enrolments to vote in council elections to more closely align council electoral rolls with State electoral rolls
- Simplifying electoral structures to provide greater consistency of representative structures
- Introducing mandatory training for council election candidates and councillors to improve competency, skills and transparency
- Extending recent changes to electoral campaign donations arrangements to local government elections to ensure the integrity and transparency of the donations process
- Setting clear standards of conduct to guide council behaviour and establishing a centralised internal resolution process to support councils in dealing with low-level misconduct more efficiently
- Introducing two new pathways that can lead to the disqualification of a councillor.
The Local Government Bill Reform Paper describes why the new reforms are being proposed and how they will work.
In response to several requests from councils to extend the time for feedback to coincide with council meeting schedules, the closing date for feedback has been extended to Wednesday, 31 July 2019 at 5pm.
To provide feedback on the proposed reforms, email email@example.com using the subject line Local Government Bill 2019 by 31 July 2019.
Will changes to the voter’s rolls affect people’s rights?
The proposed changes to the voter franchise for council elections will not alter who is allowed to vote in council elections. It will, however, require property owners (not otherwise on the State roll for that council) to register to vote if they wish to be enrolled, instead of being directly enrolled from the council’s rate records.
This is an important change. It will ensure people know they are enrolled. Currently councils put property owners on the voters rolls directly, without consulting them. Sometimes the first a person knows this is when they receive voting papers in the mail. If a person owns property in several council areas, they receive voting papers from several councils, which can be confusing.
The change will also provide better electoral security. Enrolling people from rate records often duplicates entries on the State electoral roll. While the Electoral Commission goes through a process to remove duplicated names, this is not a perfect system and there remains a risk of some people getting multiple votes. Enabling property owners to complete an enrolment form will also ensure voting papers are sent to the correct address and not, for example, to their property manager.
What will happen to existing enrolments?
The changes to voter enrolments will be introduced progressively to ensure no-one is inadvertently prevented from voting.
The next general elections for councils will be in October 2020. Anyone who was previously enrolled as a property owner and still owns that property will be automatically enrolled for those elections. New property owners will be able to register to enrol for the 2020 elections. The complete changes will be implemented at the following elections, in 2024. All previously enrolled property owner voters will be notified of the new arrangements and invited to register to vote, enrolment will be optional for them.
This progressive introduction of the changes will help ensure property owners have sufficient opportunity to update their enrolments. It will also allow time to amend electoral boundaries in the event that there are changes to voter numbers in any council wards.
Why will council electoral structures be changed?
Existing electoral structures for councils are a disparate mix of systems that which can confuse voters, and which sometimes result in some councillors needing more votes that others to be elected. Existing structures can be any of the following:
- An unsubdivided council where all the councillors are elected at large,
- Single member wards where each councillor is elected by the voters of a separate ward,
- Multi-member wards where each ward elects the same number of councillors,
- Multi-member wards where the number of councillors varies from ward to ward, and
- A combination of single-member and multi-member wards.
To simplify these arrangements and ensure greater equality between wards, it is proposed to move to a single electoral structure model consisting of single member wards for all councils. This more closely reflects the way members of Parliament are elected.
Single member wards are the best way to ensure representation is genuinely local. It is proposed that an unsubdivided municipality model option will be available to those councils whose demographic profile make division into wards inappropriate, e.g. Councils with large geographical areas and small populations (such as some rural councils). It is intended that the Electoral Representation Advisory Panel will investigate and advise the Minister in relation to structures for those councils only that are of the type specified by the Minister as being potentially permitted for unsubdivided arrangements.
How will the new electoral structures be changed?
Where changes are required the Minister will appoint an Electoral Representation Advisory Panel which includes the Victorian Electoral Commission. A Panel will undertake a review of the electoral structure of the council and recommend a structure that provides fair and equitable representation as well as facilitating good governance. A Panel must engage with the local community when undertaking a review.
Once a review is completed the Minister will seek an Order in Council from the Governor in Council to alter the electoral structure of the council.
When will electoral structures change?
Reviews of council electoral structures are expected to be undertaken and implemented progressively. Given the lead-up times required, it is not anticipated that substantial changes will be able to be made before the October 2020 council elections. This means that most, if not all, changes to electoral structures will come into effect for the council elections scheduled for October 2024.
Why will training be required for candidates in council elections?
Training for council election candidates will help ensure that people elected to local government are equipped to perform the role of councillor. The purpose of this is to provide local communities with good local government.
The training requirement will address two particular problems. Firstly, people nominating for council elections do not always realise what demands are made of the position of councillor, including the time and effort they will need to commit to the task. Secondly, elected councillors need the capacity to make difficult and strategic decisions about the activities of organisations that are large and diverse, and which operate in a publicly accountable environment. An added benefit of this change may be to prevent nominations by people who are not seriously seeking election to office
Why will councillor induction training be compulsory?
When a councillor is elected they take on a responsibility to perform their role in the best interests of the local community. To do this, a councillor needs to recognise the responsibilities of their role and to understand certain technical matters, such as planning and finance. Not all councillors come to the role with the relevant knowledge and skills and some, unfortunately, refuse to participate in training when it is provided. This has been identified as a factor limiting the effectiveness of many councils.
As a matter of public responsibility, every councillor will be required to undertake basic induction training within six months of taking their oath of office. If a councillor fails to do this their allowance will be withheld until they undertake the training.
What training will be required?
The particular training requirements for councillors will be specified in regulations. Before regulations are made, the Government will consult with the local government sector to identify what training should be required.
Why will the threshold for campaign donations be lower?
The disclosure of election funding is important for ensuring transparency in democratic elections. Voters have a right to know where candidates are obtaining their funding and to know that elected members are not improperly favouring people who donated to their election campaign.
The current disclosure threshold of $500 is considered too high for proper transparency in local government elections where overall campaign expenditure is generally low. The proposed new threshold will be $250 for all council elections except the City of Melbourne, where the disclosure threshold will remain at $500.
What will be the effect of limiting financial support for council election candidates?
It is important in local government that candidates and councillors focus on grassroots support, rather than being beholden to particular monied interests. Proposals to limit financial support provided to candidates will therefore limit both the size of campaign donations and the people and organisations that are allowed to make such donations. This follows similar changes made to the Electoral Act 2001 for Victorian Parliamentary elections.
- New caps on election campaign donations will make it unlawful for a council candidate to accept one or more donations from a single donor that exceeds $1000, or $4000 for the City of Melbourne.
- Reforms will also prohibit foreign donations by prohibiting election campaign donations from people who are not Australian residents or from organisations that do not have an Australian business number.
Why are there higher thresholds for the City of Melbourne?
The City of Melbourne, being the Capital City and the centre of business and government in Victoria, has higher profile elections involving a more dispersed electorate. This means that it costs more to conduct an election campaign, and this has been evidenced in past elections. Nevertheless, it is important to ensure proper transparency and manage financial contributions, and the proposed thresholds are considered a suitable reflection of standards that should apply to the Capital City Council.
Why are standards of conduct needed?
Communities expect their local councillors to act ethically and to perform their duties in the public interest. Local government legislation already requires councils to adopt codes of conduct for councillors and all councils have adopted such codes.
An examination of existing codes has highlighted areas of concern around the lack of consistent standards to which councillors can be held accountable. Many codes include matters that are internal procedures with limited connection with standards of behaviour. Also, with each council adopting its own code, there has been a divergence of standards from council to council, with codes varying is size from three pages to 145 pages. In many cases, conduct requirements are described too broadly to be capable of sensible enforcement.
It is intended that Standards of Conduct will be specified in regulations. They will clearly define the behavior required of councillors and will be readily enforceable. These standards will apply universally to all Victorian councils.
Will councils be able to alter the Standards of Conduct?
The Standards of Conduct will be specified in regulations and will automatically form part of every council’s Councillor Code of Conduct. All councillors will be required to comply with the Standards of Conduct, and a failure to do so will constitute misconduct.
While councils will retain the discretion to include additional matters in their Codes of Conduct, they will not be able to modify or add to the Standards of Conduct. This is important, as internal arbitration will consider breaches of the Standards when assessing allegations of misconduct.
What matters can be heard by an Internal Arbitration Process?
The primary purpose of the Internal Arbitration Process will be to consider alleged breaches of the Standards of Conduct by councillors (defined as "misconduct"). Internal Arbitration Processes will no longer deal with internal disputes and conflicts between councillors. Interpersonal disputes between councillors are generally dealt with through various forms of mediation, and this does not require legislation.
All Councillor Codes of Conduct must include an Internal Arbitration Process. While the proposed Bill and regulations will outline the key features and powers of an Internal Arbitration Process, councils can still include additional matters that apply to their Internal Arbitration Process, provided they are not inconsistent with the requirements set out in the new Local Government Act, or any other Act including the Charter of Human Rights and Responsibilities Act 2006.
How are matters for consideration by an Internal Arbitration Process initiated?
It is proposed that a councillor, a group of councillors or the council by resolution, may apply for an Internal Arbitration Process to make a finding of misconduct (i.e. breach of the Standards of Conduct). The application must be made within three months of the alleged breach occurring to ensure such matters are dealt with as soon as possible. Further details about the application process may be prescribed in regulations, including prescribing the fee that must be accompanied with the application. A period of consultation with the sector is recommended before making these regulations. Applications must be lodged with the Principal Councillor Conduct Registrar, who will determine whether there is sufficient evidence to support an application for misconduct. All fees are refunded except where the application is frivolous, vexatious, misconceived or lacking in substance. This is to discourage serial applications being made to game the system.
What sanctions may apply following an adverse finding by the Internal Arbitration Process?
Currently, councils are required to determine how to appropriately deal with adverse findings by an Arbiter. However, the willingness of a council to deal with arbitration outcomes may be comprised especially where it is a factional matter within the council. It is therefore proposed that Arbiters will be empowered to directly impose some forms of discipline. The forms of discipline that may be imposed by an Arbiter will include directing the councillor to make an apology, directing the councillor be removed from a position representing the council for a period of time, and to suspend a councillor for a period not exceeding one month.
What changes are being made to the disqualification provisions?
Under the current Act, councillors can be disqualified when it is inappropriate for them to hold office. For example, councillors convicted of serious crimes are disqualified for 8 years and councillors who are bankrupt are disqualified while they remain bankrupt. In addition, VCAT can disqualify a person from being a councillor if it finds they have acted in a way that demonstrates they are not of good character or are unfit to hold the office of councillor.
There are concerns that these mechanisms, which depend on a decision in VCAT or a court, are inadequate for some situations. It is therefore proposed to introduce two additional ways in which a councillor may be disqualified:
- Where a Councillor Conduct Panel makes two or more findings of serious misconduct against the councillor within eight years, or
- When a Commission of Inquiry appointed as a result of a public petition recommends that the councillor be disqualified
Why are new disqualification provisions proposed?
These new provisions will be introduced to help enforce high standards of behaviour. At present it is possible for a councillor to remain in office despite committing actions that are entirely improper for an elected representative. This situation may continue until and unless the Councillor is convicted in a court of committing a serious crime.
The new provisions will allow a councillor to be removed from office for repeated serious misconduct or in response to genuine public concerns about their improper conduct.
How will a “two strikes” disqualification work?
Allegations of serious misconduct by a councillor can be heard by a Councillor Conduct Panel, which is a two-member Panel appointed after an application is made by the council or by one or more councillors. If a Panel makes two or more findings of serious misconduct against a councillor within a period of eight years that councillor will be automatically disqualified and for at least four years. That means the councillor will be removed from office and unable to nominate for council at the next council elections.
Serious misconduct includes bullying, sexual harassment, breach of confidentiality, improperly directing council staff and failing to disclose a conflict of interest. It also includes failing to comply with an Internal Arbitration Process or Councillor Conduct Panel hearing.
How will disqualification by a Commission of Inquiry work?
Special provisions will be made in legislation to enable a local community to have a Commission of Inquiry set up for their council. If at least 25 per cent of the voters in a municipality sign a petition for a Commission of Inquiry, the Minister must establish the Commission and require it to consider the matters raised in the petition.
Where a Commission of Inquiry has been appointed as the result of a petition, that Commission may recommend that a councillor be disqualified on grounds that the councillor has, or is, contributing to a failure by the council to provide good governance. The Commission’s report must be tabled in Parliament and, unless the disqualification is disallowed by either House, the councillor will be automatically disqualified after eight sitting days.
A disqualification by Commission of Inquiry has effect for four year. This means the councillor will be removed from office and unable to nominate for council at the next council elections.
Can a councillor appeal their disqualification?
Councillors will have the same rights to appeal a finding of a Councillor Conduct Panel to VCAT as they currently do. Councillors who have a second finding of serious misconduct made against them will not be disqualified until their time for making an appeal to VCAT has elapsed.
The disqualification of a councillor based on the recommendation of a Commission are subject to Parliamentary disallowance. It would therefore be a matter for the councillor to petition Parliament if they seek to appeal the disqualification.
How will a petition be made?
Any person who is on the council voters’ roll may apply for a petition seeking a Commission of Inquiry, unless the person is a councillor, a member of council staff or a someone who has already applied for a petition during the council’s term of office. An application cannot be made within six months before or after a council election.
There are no set grounds for a petition, but the applicant must explain the reasons for the petition in a 200-word statement.
An application must be lodged with the Victorian Electoral Commission. The applicant and the council both provide a 200-word statement to explain the reasons and to respond. After this is done, VEC issues a public notice.
The petition process is in two main stages:
- An application must be lodged with the Victorian Electoral Commission. The applicant and the council both provide a 200-word statement to explain the reasons and to respond. After this is done, VEC issues a public notice.
- The applicant and people representing the applicant can then collect signatures to the petition for a period of 60 days. If 25 percent of voters sign the petition it may be lodged with the Minister. If the required signatures are not achieved within 60 days, the petition lapses.
Who can sign a petition for a Commission of Inquiry?
The petition may be signed by any person enrolled to vote in the municipality. No other person will be entitled to sign the petition. After lodgement, the Minister will provide the petition to the VEC, who will determine if the petition has been signed by at least 25 per cent of voters. The VEC will publish notice of the finalised petition and any person may apply to the VEC to have a name removed from the petition.
When will the changes come into effect?
An Act as complex as the Local Government Act cannot be completely replaced and implemented at a single point in time. In order to allow changes to be introduced effectively, the various provisions of the Bill will be introduced in four stages, from the initial passing of the Bill through to late 2021.
In addition, a separate review process has been announced to examine the rating provisions of the Act. It is anticipated that new rating provisions will be enacted after that review has been completed in March 2020.
What support will the Government provide for councils?
The Government will assist councils with application of the new legislation. Implementation arrangements will be cooperative. The Government will work with councils and their representative organisations to allow the smooth introduction of provisions in the new Bill and to ensure the community is consulted and kept informed of changes.
Direct support will also be provided to councils in the form of detailed Regulations, guidelines and model policies.
Page last updated: 15/07/19