Chapter 12 How do councils operate?
Introduction. This Chapter describes the ways in which a council carries out its functions and makes decisions.The Chapter enables each council to adopt a code of meeting practice after giving public notice of a draft code. The Chapter provides for the basic matters concerning council meetings (frequency of meetings, notice of meetings, quorum, voting, rescission motions, committees etc).
The Chapter enables a council to delegate its functions, other than those functions the delegation of which is expressly prohibited. Functions that may not be delegated include the making of a rate or charge, the borrowing of money, the compulsory acquisition of land, the adoption of financial statements and the classification of public land as operational land. Functions may be delegated to the general manager and to specified persons and bodies but may not be delegated directly by the council to council employees other than the general manager.
The Chapter requires councils to have public liability and professional liability insurance. The Chapter also makes provision for the constitution, functions, operation and dissolution of county councils.
355 How does a council exercise its functions?
A function of a council may, subject to this Chapter, be exercised:(a) by the council by means of the councillors or employees, by its agents or contractors, by financial provision, by the provision of goods, equipment, services, amenities or facilities or by any other means, or(b) by a committee of the council, or(c) partly or jointly by the council and another person or persons, or(d) jointly by the council and another council or councils (including by means of a Voluntary Regional Organisation of Councils of which the councils concerned are members), or(e) by a delegate of the council (which may, for example, be a Voluntary Regional Organisation of Councils of which the council is a member).
356 Can a council financially assist others?
(1) A council may, in accordance with a resolution of the council, contribute money or otherwise grant financial assistance to persons for the purpose of exercising its functions.(2) A proposed recipient who acts for private gain is not ineligible to be granted financial assistance but must not receive any benefit under this section until at least 28 days' public notice of the council's proposal to pass the necessary resolution has been given.(3) However, public notice is not required if:(a) the financial assistance is part of a specific program, and(b) the program's details have been included in the council's draft management plan for the year in which the financial assistance is proposed to be given, and(c) the program's proposed budget for that year does not exceed 5 per cent of the council's proposed income from the ordinary rates levied for that year, and(d) the program applies uniformly to all persons within the council's area or to a significant group of persons within the area.(4) Public notice is also not required if the financial assistance is part of a program of graffiti removal on private land.Note. Section 67A of the Act deals with graffiti removal work on private land.
357 Can a council exercise its functions only within its area?
A council may exercise its functions within its area or outside its area, but may exercise its regulatory functions under Chapter 7 only within its area.
358 Restrictions on formation of corporations
(1) A council must not form or participate in the formation of a corporation, or acquire a controlling interest in a corporation, except:(a) with the consent of the Minister, or(b) as provided by this Act.(2) This section does not prevent a council from being a member of a co-operative society or a company limited by guarantee and licensed not to use the word “Limited” in its name.
359 Can a council act as an agent?
A council may act as the agent of another person or of the Crown, subject to the regulations.
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Part 2 How are decisions made?
Division 1 Code of meeting practice
360 Conduct of meetings of councils and committees
(1) The regulations may make provision with respect to the conduct of meetings of councils and committees of councils of which all the members are councillors.(2) A council may adopt a code of meeting practice that incorporates the regulations made for the purposes of this section and supplements those regulations with provisions that are not inconsistent with them.(3) A council and a committee of the council of which all the members are councillors must conduct its meetings in accordance with the code of meeting practice adopted by it.
361 Preparation, public notice and exhibition of draft code
(1) Before adopting a code of meeting practice, a council must prepare a draft code.(2) The council must give public notice of the draft code after it is prepared.(3) The period of public exhibition must not be less than 28 days.(4) The public notice must also specify a period of not less than 42 days after the date on which the draft code is placed on public exhibition during which submissions may be made to the council.(5) The council must publicly exhibit the draft code in accordance with its notice.
(1) After considering all submissions received by it concerning the draft code, the council may decide:(a) to amend those provisions of its draft code that supplement the regulations made for the purposes of section 360, or(b) to adopt the draft code as its code of meeting practice.(2) If the council decides to amend its draft code, it may publicly exhibit the amended draft in accordance with this Division or, if the council is of the opinion that the amendments are not substantial, it may adopt the amended draft code without public exhibition as its code of meeting practice.
A council may amend a code adopted under this Part by means only of a code so adopted.
364 Public availability of the code
(1) The code of meeting practice adopted under this Division by a council must be available for public inspection free of charge at the office of the council during ordinary office hours.(2) Copies of the code must be available free of charge or, if the council determines, on payment of the approved fee.
Division 2 Other provisions concerning council meetings
365 How often does the council meet?
The council is required to meet at least 10 times each year, each time in a different month.
366 Calling of extraordinary meeting on request by councillors
If the mayor receives a request in writing signed by at least 2 councillors, the mayor must call an extraordinary meeting of the council to be held as soon as practicable but in any event within 14 days after receipt of the request.
(1) The general manager of a council must send to each councillor, at least 3 days before each meeting of the council, a notice specifying the time and place at which and the date on which the meeting is to be held and the business proposed to be transacted at the meeting.(2) Notice of less than 3 days may be given of an extraordinary meeting called in an emergency.(3) A notice under this section and the agenda for, and the business papers relating to, the meeting may be given to a councillor in electronic form but only if all councillors have facilities to access the notice, agenda and business papers in that form.
368 What is the quorum for a meeting?
The quorum for a meeting of the council is a majority of the councillors of the council who hold office for the time being and are not suspended from office.
369 Who presides at meetings of the council?
(1) The mayor or, at the request of or in the absence of the mayor, the deputy mayor (if any) presides at meetings of the council.(2) If the mayor and the deputy mayor (if any) are absent, a councillor elected to chair the meeting by the councillors present presides at a meeting of the council.
370 What are the voting entitlements of councillors?
(1) Each councillor is entitled to one vote.(2) However, the person presiding at a meeting of the council has, in the event of an equality of votes, a second or casting vote.
371 What constitutes a decision of the council?
A decision supported by a majority of the votes at a meeting of the council at which a quorum is present is a decision of the council.
372 Rescinding or altering resolutions
(1) A resolution passed by a council may not be altered or rescinded except by a motion to that effect of which notice has been duly given in accordance with the council's code of meeting practice.(2) If notice of motion to rescind a resolution is given at the meeting at which the resolution is carried, the resolution must not be carried into effect until the motion of rescission has been dealt with.(3) If a motion has been negatived by a council, a motion having the same effect must not be considered unless notice of it has been duly given in accordance with the council's code of meeting practice.(4) A notice of motion to alter or rescind a resolution, and a notice of motion which has the same effect as a motion which has been negatived by the council, must be signed by 3 councillors if less than 3 months has elapsed since the resolution was passed, or the motion was negatived, as the case may be.(5) If a motion to alter or rescind a resolution has been negatived, or if a motion which has the same effect as a previously negatived motion, is negatived, no similar motion may be brought forward within 3 months. This subsection may not be evaded by substituting a motion differently worded, but in principle the same.(6) A motion to which this section applies may be moved on the report of a committee of the council and any such report must be recorded in the minutes.(7) The provisions of this section concerning negatived motions do not apply to motions of adjournment.
A council may resolve itself into a committee to consider any matter before the council.
374 Certain circumstances do not invalidate council decisions
Proceedings at a meeting of a council or a council committee are not invalidated because of:(a) a vacancy in a civic office, or(b) a failure to give notice of the meeting to any councillor or committee member, or(c) any defect in the election or appointment of a councillor or committee member, or(d) a failure of a councillor or a committee member to disclose a pecuniary interest, or to refrain from the consideration or discussion of, or vote on, the relevant matter, at a council or committee meeting in accordance with section 451, or(e) a failure to comply with the code of meeting practice.
(1) The council must ensure that full and accurate minutes are kept of the proceedings of a meeting of the council.(2) The minutes must, when they have been confirmed at a subsequent meeting of the council, be signed by the person presiding at that subsequent meeting.
376 Attendance of general manager at meetings
(1) The general manager is entitled to attend, but not to vote at, a meeting of the council or a meeting of a committee of the council of which all the members are councillors.(2) The general manager is entitled to attend a meeting of any other committee of the council and may, if a member of the committee, exercise a vote.(3) However, the general manager may be excluded from a meeting of the council or a committee while the council or committee deals with a matter relating to the standard of performance of the general manager or the terms of the employment of the general manager.
Part 3 Delegation of functions
377 General power of the council to delegate
(1) A council may, by resolution, delegate to the general manager or any other person or body (not including another employee of the council) any of the functions of the council, other than the following:• the appointment of a general manager• the making of a rate• a determination under section 549 as to the levying of a rate• the making of a charge• the fixing of a fee• the borrowing of money• the voting of money for expenditure on its works, services or operations• the compulsory acquisition, purchase, sale, exchange or surrender of any land or other property (but not including the sale of items of plant or equipment)• the acceptance of tenders which are required under this Act to be invited by the council• the adoption of a management plan• the adoption of a financial statement included in an annual financial report• a decision to classify or reclassify public land under Division 1 of Part 2 of Chapter 6• the fixing of an amount or rate for the carrying out by the council of work on private land• the decision to carry out work on private land for an amount that is less than the amount or rate fixed by the council for the carrying out of any such work• the review of a determination made by the council, and not by a delegate of the council, of an application for approval or an application that may be reviewed under section 82A of the Environmental Planning and Assessment Act 1979• the power of the council to authorise the use of reasonable force for the purpose of gaining entry to premises under section 194• a decision under section 356 to contribute money or otherwise grant financial assistance to persons• the making of an application, or the giving of a notice, to the Governor or Minister• this power of delegation• any function under this or any other Act that is expressly required to be exercised by resolution of the council.(2) A council may, by resolution, sub-delegate to the general manager or any other person or body (not including another employee of the council) any function delegated to the council by the Director-General except as provided by the instrument of delegation to the council.
378 Delegations by the general manager
(1) The general manager may delegate any of the functions of the general manager, other than this power of delegation.(2) The general manager may sub-delegate a function delegated to the general manager by the council to any person or body (including another employee of the council).(3) Subsection (2) extends to a function sub-delegated to the general manager by the council under section 377 (2).
379 Delegation of regulatory functions
(1) A regulatory function of a council under Chapter 7 must not be delegated or sub-delegated to a person or body other than:(a) a committee of the council of which all the members are councillors or of which all the members are either councillors or employees of the council, or(b) an employee of the council, or(c) a county council.(2) A regulatory function of a county council under Chapter 7 must not be delegated or sub-delegated to a person or body other than:(a) a committee of the county council of which all the members are members of the county council or of which all the members are either members of the county council or employees of the county council, or(b) an employee of the county council, or(c) a council.(3) However, if:(a) a regulatory function is delegated to a county council, the function may be delegated to the general manager and by the general manager to an employee of the county council, or(b) a regulatory function is delegated to a council, the function may be delegated to the general manager and by the general manager to an employee of the council.
Each council must review all its delegations during the first 12 months of each term of office.
381 Exercise of functions conferred or imposed on council employees under other Acts
(1) If, under any other Act, a function is conferred or imposed on an employee of a council or on the mayor or a councillor of a council, otherwise than by delegation in accordance with this section, the function is taken to be conferred or imposed on the council.(2) Such a function may be delegated by the council in accordance with this Part.(3) A person must not, under any other Act, delegate a function to:• the general manager, except with the approval of the council• an employee of the council, except with the approval of the council and the general manager.
382 Insurance against liability
(1) A council must make arrangements for its adequate insurance against public liability and professional liability.(2) The regulations may make provision with respect to:• arrangements for insurance• minimum amounts of insurance• risk management• claims management• the keeping of records concerning insurance• other matters concerning insurance.
383 Proposal to establish or dissolve a county council or amend its constitution
(1) A council, a county council, a public authority or the Director-General may make a proposal to the Minister to establish or dissolve a county council or to amend the constitution of a county council.(2) The Minister may propose to establish or dissolve a county council or to amend the constitution of a county council.
384 Public notice to be given of a proposal
The Minister must give at least 28 days' public notice of a proposal made to the Minister that the Minister decides to proceed with or of a proposal initiated by the Minister.
Within the period of public notice, representations concerning the proposal may be made to the Minister by anyone affected by the proposal.
386 Minister's recommendation concerning the proposal
After considering all representations received concerning the proposal, the Minister may recommend to the Governor that the proposal be implemented, with or without modifications, or may decline to recommend that the proposal be implemented.
387 Formation of county councils
(1) The Governor may, by proclamation, establish county councils for the purposes of this Act.(2) A proclamation under this section must contain the following particulars:(a) the name of the county council,(b) a description of the county council's area of operations,(b1) the name of each council (referred to in this Part as a constituent council) whose area lies wholly or partly within the county council's area of operations,(c) the number of persons to be elected by each constituent council to the county council's governing body,(d) a description of the county council's functions.(3) A proclamation under this section conferring functions on a county council as to the control of noxious weeds on land is to be made only with the concurrence of the Minister administering the Noxious Weeds Act 1993.
A proclamation establishing a county council operates to constitute the county council as a body corporate under this Act.
389 What is a county council's corporate name?
The corporate name of a county council is to be “X County Council”, where “X” is the name specified by the proclamation.
390 Who comprise the governing body?
(1) A county council must have a governing body elected by its constituent councils.(2) Provisions concerning the membership of a county council's governing body are to be as prescribed by the proclamation establishing the county council.(3) A member of a county council is to be elected from among the councillors of the constituent councils in accordance with the regulations.(4) The governing body of a county council is responsible for managing the affairs of the county council.
(1) The chairperson of a county council is the person elected to the office of chairperson by the members of the county council from among their number.(2) The chairperson holds office for one year, subject to this Act.(3) The office of chairperson:(a) commences on the day the person elected to the office is declared to be so elected, and(b) becomes vacant when the person's successor is declared to be elected to the office, or on the occurrence of a casual vacancy in the office.
391A What are the functions of the chairperson?
The role of the chairperson of a county council is:(a) to preside at meetings of the county council, and(b) to exercise such other functions of the county council as the county council determines.
392 Vacancy in office of member
(1) A member of a county council vacates that office on ceasing to be a councillor of a constituent council.(2) This section does not limit the other circumstances in which a member of a county council vacates that office.
393 Area of operations of county council
The area of operations of a county council may, in accordance with a proclamation made for the purposes of this Part, comprise the whole or any part of one or more local government areas.
394 Functions of county council
(1) The functions of a county council may, in accordance with a proclamation made for the purposes of this Part, comprise any one or more of the functions of a council under this or any other Act.(2) A council may not undertake a function conferred on a county council whose area of operations includes the whole or any part of the council's area, subject to the regulations or a proclamation made for the purposes of this Part.(3) Subsection (2) does not prevent a council from exercising a function delegated to it by a county council.
395 General manager of county council
(1) A county council must employ a general manager.(2) The general manager of a county council has the same functions in relation to the county council as the general manager of a council has in relation to the council.
396 How often does a county council meet?
A county council is required to meet at least 4 times each year.
397 Amendment and dissolution of county councils
(1) The Governor may, by proclamation, amend or revoke a proclamation in force under section 387 for the purpose of amending the constitution of, or of dissolving, a county council.(2) A proclamation for the purpose of amending the constitution of a county council:(a) may change the name of the county council, or(b) may vary the county council's area of operations, or(c) may vary the number of persons who comprise the county council's governing body, or(c1) may vary the number of persons to be elected by each constituent council to the county council's governing body, or(d) may vary the county council's functions.
398 Facilitating provisions of proclamations
A proclamation of the Governor for the purposes of this Part may include provisions of the same kind as are referred to in section 213.
399 Making of financial contributions by constituent councils
The regulations may make provision for or with respect to the making of financial contributions to a county council by the constituent councils, including the following:• the purposes for which contributions may be made• the circumstances in which contributions may be required• the assessment of contributions• the payment of contributions• the recovery of contributions.
400 Application of Act to county councils
(1) This Act (except Part 1 and Divisions 1 and 2 of Part 2 of Chapter 9, Chapter 10, section 365 and the provisions of Chapter 15 concerning the making and levying of ordinary rates) applies:(a) to county councils in the same way as it applies to councils, and(b) to the members of county councils in the same way as it applies to the councillors of councils,with such exceptions and modifications (if any) as the regulations may provide.(2) In the application of this Act to county councils and members of county councils:(a) a reference to the mayor of a council includes a reference to the chairperson of a county council, and(b) a reference to mayoral office includes a reference to the office of the chairperson of a county council, and(c) a reference to a councillor includes a reference to a member of a county council.
400A Cudgegong (Abattoir) County Council—mortgage of land
(1) The Cudgegong (Abattoir) County Council may mortgage land that it owns (other than community land) as security for any loan obtained by it after the commencement of this section.(2) This section has effect despite anything to the contrary in any provision of this Act applying to county councils by the operation of section 400.