Chapter 9 How are councils established?
Introduction. This Chapter contains provisions dealing separately with the constitution of land as a local government area and the constitution of a council to manage that area. It enables the making of changes to those areas and to councils. It provides for the dissolution of councils and the appointment of administrators.Each council is a statutory corporation. The councillors are the governing body of the corporation and they have the responsibility of directing and controlling the affairs of the council in accordance with this Act.
The Chapter includes a statement of the role of the mayor and of a councillor.
Provision is made for the payment of fees to the mayor and other councillors. Payment is to be made in accordance with determinations of the Local Government Remuneration Tribunal which is established by this Chapter. Provision is also made for the payment of expenses and the provision of facilities to the mayor and other councillors.
The Chapter also constitutes the Local Government Boundaries Commission and provides for its functions.
Division 1 How are areas constituted and dissolved?
(1) The Governor may, by proclamation, constitute any part of New South Wales as an area.(2) The area is to have the boundaries determined by the Governor by proclamation.(3) An area must be a single area of contiguous land.
205 Land taken to be included in an area
(1) The land and water between high-water mark and low-water mark on the foreshores of an area is taken to be in the area.(2) The land and water enclosed by:(a) a straight line drawn between the low-water marks of consecutive headlands to any body of water on the foreshores of an area, and(b) those foreshores,is taken to be in the area.(3) Land on the boundary of an area is taken to be in the area if:(a) it is reclaimed from tidal waters, or(b) it is on the foreshores of the area and beyond low-water mark,and it is privately owned or has a structure erected on it.(4) This section is subject to any proclamation made under this Division.
The Governor may, by proclamation, constitute an area as a city.
The Governor may, by proclamation, name or rename an area.
When an area is constituted as a city or an area or ward is renamed, a reference in an Act or instrument to the old name of the area, the council concerned or the ward is taken to include a reference to the new name of the area, council or ward.
210 Division of areas into wards
(1) The council may divide its area into divisions, called “wards”.(2) The council may abolish all wards.(3) The council may alter ward boundaries.(4) The council may name or rename a ward.(5) A council must not divide an area into wards or abolish all wards unless it has obtained approval to do so at a constitutional referendum.(6) A by-election held after an alteration of ward boundaries and before the next ordinary election is to be held as if the boundaries had not been altered.(7) The division of a council’s area into wards, or a change to the boundaries of a ward, must not result in a variation of more than 10 per cent between the number of electors in each ward in the area.
210A Consultation, public notice and exhibition of proposals regarding ward boundaries
(1) Before dividing a council’s area into wards or altering a council’s ward boundaries, the council must:(a) consult the Electoral Commissioner and the Australian Statistician to ensure that, as far as practicable, the proposed boundaries of its wards correspond to the boundaries of appropriate subdivisions (within the meaning of the Parliamentary Electorates and Elections Act 1912) and census districts, and to ensure that the proposed boundaries comply with section 210 (7), and(b) prepare and publicly exhibit a plan detailing the proposed division or alteration (the ward boundary plan).(2) The council must give public notice of the following:(a) the place at which the ward boundary plan may be inspected,(b) the period for which the plan will be exhibited (being a period of not less than 28 days),(c) the period during which submissions regarding the ward boundary plan may be made to the council (being a period of not less than 42 days after the date on which the ward boundary plan is placed on public exhibition).(3) The council must, in accordance with its notice, publicly exhibit the ward boundary plan together with any other matter that it considers appropriate or necessary to better enable the plan and its implications to be understood.(4) Any person may make a submission to the council regarding the ward boundary plan within the period referred to in subsection (2) (c).(5) The council must consider submissions made in accordance with this section.
(1) The council of an area divided into wards must keep the ward boundaries under review.(2) If:(a) during a council’s term of office, the council becomes aware that the number of electors in one ward in its area differs by more than 10 per cent from the number of electors in any other ward in its area, and(b) that difference remains at the end of the first year of the following term of office of the council,the council must, as soon as practicable, alter the ward boundaries in a manner that will result in each ward containing a number of electors that does not differ by more than 10 per cent from the number of electors in each other ward in the area.(3) Nothing in subsection (2) prevents a council that has become aware of the discrepancy referred to in subsection (2) (a) from altering its ward boundaries before the end of the first year of the following term of office of the council.
(1) The Governor may, by proclamation, dissolve the whole or part of an area.(2) The Minister may not recommend the making of a proclamation to dissolve the whole or part of an area until after a public inquiry has been held and the Minister has considered the report made as a consequence of the inquiry.
213 Facilitating provisions of proclamations
(1) A proclamation of the Governor for the purposes of this Division may include such provisions as are necessary or convenient for giving effect to the proclamation, including provisions for or with respect to:• the transfer or apportionment of assets, rights and liabilities• the transfer of staff• the application of regulations• the alteration of ward boundaries• the holding of elections• the delivery or retention of records• the termination, cessation, dissolution or abolition of anything existing before the proclamation takes effect• the preservation or continuance of anything existing before the proclamation takes effect• the making of appointments• the inclusion or exclusion, as a constituent council of any related county council, of the council of any area constituted or dissolved by the proclamation.(2) Such a proclamation may:(a) apply generally or be limited in its application by reference to specified exceptions or factors, or(b) apply differently according to different factors of a specified kind, or(c) authorise any matter or thing to be from time to time determined, applied or regulated by any specified person or body,or may do any combination of those things.(3) In this section, related county council, in relation to an area constituted or dissolved by a proclamation of the Governor for the purposes of this Division, means a county council that has an area of operations that includes the whole or any part of the area so constituted or dissolved.
Division 2 What must be done before areas can be constituted?
Note. This Division sets out the things that must be done before areas can be constituted.Land may only be constituted as an area if the public has been notified of the proposal to do so and the councils and electors concerned have been given an opportunity to make representations concerning the proposal.
It also provides for the Boundaries Commission to consider proposals to constitute areas.
214 Exercise of functions under sec 204
A function under section 204 may be exercised only after a proposal for the exercise of the function is dealt with under this Division.
215 Who may initiate a proposal?
(1) A proposal may be made by the Minister or it may be made to the Minister by a council affected by the proposal or by an appropriate minimum number of electors.(2) An appropriate minimum number of electors is:(a) if a proposal applies to the whole of an area or the proposal is that part of an area be constituted as a new area—250 of the enrolled electors for the existing area or 10 per cent of them, whichever is the greater, or(b) if a proposal applies only to part of an area—250 of the enrolled electors for that part or 10 per cent of them, whichever is the lesser.
216 Public notice to be given of a proposal
The Minister must give at least 28 days’ public notice of a proposal that the Minister decides to proceed with.
(1) Within the period of public notice, representations concerning the proposal may be made to the Minister by a council or elector affected by the proposal.(2) The Minister must consider all representations made.
218 Referral of proposal for examination and report
(1) If the Minister decides to continue with the proposal, the Minister must refer it for examination and report to the Boundaries Commission.(2) The Minister may recommend to the Governor that the proposal be implemented:(a) with such modifications as arise out of the Boundaries Commission’s report, and(b) with such other modifications as the Minister determines,but may not do so if of the opinion that the modifications constitute a new proposal.(3) The Minister may decline to recommend to the Governor that the proposal be implemented.
Division 2A How are areas amalgamated or their boundaries altered?
(1) The Governor may, by proclamation, amalgamate two or more areas into one or more new areas.(2) On the date specified in the proclamation as the date on which the areas are to be amalgamated:(a) the areas are dissolved, and(b) the new area or new areas are constituted, and(c) subject to section 218C, the councillors of the former areas cease to hold office.(3) Divisions 1 and 2 apply to a new area constituted by a proclamation under this section in the same way as they apply to an area constituted by a proclamation under section 204.(4) Section 212 (2) does not apply to the dissolution of a former area by a proclamation under this section.
218B Alteration of boundaries of areas
The Governor may, by proclamation, alter the boundaries of one or more areas.
218C Facilitating provisions of proclamations
(1) A proclamation of the Governor for the purposes of this Division may include provisions of the same kind as are referred to in section 213.(2) Such a proclamation may also include provisions for or with respect to:(a) the appointment of administrators for any area constituted by the proclamation, and(b) the continuation in office, as councillors of any area constituted by the proclamation, of any or all of the councillors of any area dissolved by the proclamation.(3) Section 224 (1) does not apply to any councillors who continue in office by virtue of such a proclamation.
Division 2B What must be done before areas can be amalgamated or their boundaries altered?
218D Exercise of functions under secs 218A and 218B
A function under section 218A or 218B may be exercised only after a proposal for the exercise of the function is dealt with under this Division.
218E Who may initiate a proposal?
(1) A proposal may be made by the Minister or it may be made to the Minister by a council affected by the proposal or by an appropriate minimum number of electors.(2) An appropriate minimum number of electors is:(a) if a proposal applies to the whole of one or more areas, 250 of the enrolled electors for each area or 10 per cent of them, whichever is the greater, or(b) if a proposal applies to part only of an area, 250 of the enrolled electors for that part or 10 per cent of them, whichever is the lesser.
218F Referral of proposal for examination and report
(1) On making or receiving a proposal, the Minister must refer it for examination and report to the Boundaries Commission or to the Director-General.(2) Sections 263, 264 and 265 apply to the examination of a proposal by the Director-General in the same way as they apply to the examination of a proposal by the Boundaries Commission.(3) For the purpose of examining a joint proposal of 2 or more councils for the amalgamation of two or more areas under section 218A, the Boundaries Commission or Director-General, as the case requires, must seek the views of electors of each of those areas:(a) by means of:(i) advertised public meetings, and(ii) invitations for public submissions, and(iii) postal surveys or opinion polls, in which reply-paid questionnaires are distributed to all electors, or(b) by means of formal polls.(4) The period over which the views of electors are to be sought as referred to in subsection (3) must be a period of at least 40 days.(5) Part 3 of Chapter 4 applies to a formal poll taken by the Boundaries Commission or Director-General in the same way as it applies to a council poll referred to in that Part.(6) If a proposal that is not supported by one or more of the councils affected by it, or that is an amalgamation proposal (as defined in section 218G), has been referred to the Director-General under subsection (1):(a) the Director-General must furnish the Director-General’s report to the Boundaries Commission for review and comment, and(b) the Boundaries Commission must review the report and send its comments to the Minister.(7) The Minister may recommend to the Governor that the proposal be implemented:(a) with such modifications as arise out of:(i) the Boundaries Commission’s report, or(ii) the Director-General’s report (and, if applicable, the Boundaries Commission’s comments on that report), and(b) with such other modifications as the Minister determines,but may not do so if of the opinion that the modifications constitute a new proposal.(8) The Minister may decline to recommend to the Governor that the proposal be implemented.
Division 2C How do proposals for the amalgamation of areas affect elections?
In this Division:amalgamation proposal means a proposal referred to in section 218E for the amalgamation of two or more areas under section 218A.
election requirements of this Act means the requirements of Parts 4 and 5 of Chapter 10 with respect to the holding of an ordinary election referred to in section 287 or a by-election referred to in section 292.
218H Postponement of elections while proposals being formulated
(1) The Minister may, by order published in the Gazette, postpone the election requirements of this Act in relation to two or more councils affected by an amalgamation proposal that two or more councils have resolved to formulate for the purposes of Division 2B.(2) An order under this section may not be made in respect of a council unless the council has resolved to seek the making of such an order.(3) The latest date to which the election requirements of this Act may be postponed by an order under this section is:(a) the date occurring 12 months after the order is made, or(b) if the postponement is extended by a further order under this section, 31 December in the calendar year following that in which the first such order was made.(4) A further order referred to in subsection (3) (b) may be made only if the Minister is satisfied that substantial progress has been made in the formulation of the proposal to which the earlier order relates.(5) On the making of an order under this section:(a) the election requirements of this Act are suspended for the period specified in the order, and(b) the retiring councillors continue in office (subject to this Act) until an election is held.(6) The suspension ceases to have effect if the order is revoked under section 218I.(7) If while an order under this section is in force a casual vacancy occurs in the office of a mayor elected by the electors, the casual vacancy is to be filled in accordance with the provisions of section 295 as if it were a casual vacancy in the office of a mayor elected by the councillors.
218I Revocation of postponement granted under sec 218H
(1) The Minister may, by order published in the Gazette:(a) revoke a former order that has been made in connection with an amalgamation proposal, and(b) if:(i) the day on which an election would (but for the former order) have been required to be held has passed, or(ii) the day on which an election is required to be held will occur within 3 months after the day on which the order is made,appoint a day as the day on which the election is to be held.(2) Such an order may be made if the Minister is satisfied:(a) that work in connection with the formulation of the proposal is no longer being carried out, or(b) that the proposal has been abandoned.(3) The day appointed by the order as the day on which an election is to be held is to be a Saturday occurring not less than 3 months, and not more than 4 months, after the day on which the order is made.(4) On the making of an order under this section:(a) the suspension by the former order of the election requirements of this Act is terminated, and(b) an election is to be held in accordance with those requirements:(i) on the day ascertained in accordance with those requirements, or(ii) if the order appoints a different day, on the day so appointed.(5) In this section, former order means an order under section 218H.
218J Postponement of elections after proposals made
(1) The Minister may, by order published in the Gazette, postpone the election requirements of this Act in relation to two or more councils affected by an amalgamation proposal that two or more councils have made to the Minister for the purposes of Division 2B.(2) An order under this section may not be made in respect of a council unless the council has resolved to seek the making of such an order.(3) The latest date to which the election requirements of this Act may be postponed by an order under this section is:(a) 31 December in the calendar year following that in which the order is made, or(b) if the proposal has been the subject of an order under section 218H, 31 December in the calendar year following that in which the first such order was made.(4) On the making of an order under this section:(a) the election requirements of this Act are suspended, and(b) the retiring councillors continue in office (subject to this Act) until an election is held.(5) The suspension ceases to have effect if the order is revoked under section 218K.(6) If while an order under this section is in force a casual vacancy occurs in the office of a mayor elected by the electors, the casual vacancy is to be filled in accordance with the provisions of section 295 as if it were a casual vacancy in the office of a mayor elected by the councillors.
218K Revocation of postponement granted under sec 218J
(1) The Minister may, by order published in the Gazette:(a) revoke a former order that has been made in connection with an amalgamation proposal, and(b) if:(i) the day on which an election would (but for the former order) have been required to be held has passed, or(ii) the day on which an election is required to be held will occur within 3 months after the day on which the order is made,appoint a day as the day on which the election is to be held.(2) Such an order may be made if the Minister has declined to recommend to the Governor that the proposal be implemented.(3) The day appointed by the order as the day on which an election is to be held is to be a Saturday occurring not less than 3 months, and not more than 4 months, after the day on which the order is made.(4) On the making of an order under this section:(a) the suspension by the former order of the election requirements of this Act is terminated, and(b) an election is to be held in accordance with those requirements:(i) on the day ascertained in accordance with those requirements, or(ii) if the order appoints a different day, on the day so appointed.(5) In this section, former order means an order under section 218J.
A council is constituted by this Act for each area.
A council is a body corporate.Note. Part 8 of the Interpretation Act 1987 applies to statutory bodies. It contains provisions stating the general attributes of statutory incorporation (for example, perpetual succession, the requirement for a seal, the taking of proceedings, etc), it provides for judicial notice to be taken of a statutory corporation’s seal, it creates a presumption of regularity for acts and proceedings of a statutory corporation and contains other provisions.
221 What is a council’s corporate name?
(1) The corporate name of a council of an area other than a city is the “Council of X” or the “X Council”, X being the name of the council’s area.(2) The corporate name of a council of a city is the “Council of the City of X” or the “X City Council”, X being the name of the city.
222 Who comprise the governing body?
The elected representatives, called “councillors”, comprise the governing body of the council.
223 What is the role of the governing body?
The role of the governing body is to direct and control the affairs of the council in accordance with this Act.
224 How many councillors does a council have?
(1) A council must have at least 5 and not more than 15 councillors (one of whom is the mayor).(2) Not less than 12 months before the next ordinary election, the council must determine the number, in accordance with subsection (1), of its councillors for the following term of office.(3) If the council proposes to change the number of councillors, it must, before determining the number, obtain approval for the change at a constitutional referendum.
An area must have a mayor who is elected in accordance with this Division.
226 What is the role of the mayor?
The role of the mayor is:• to exercise, in cases of necessity, the policy-making functions of the governing body of the council between meetings of the council• to exercise such other functions of the council as the council determines• to preside at meetings of the council• to carry out the civic and ceremonial functions of the mayoral office.
The mayor of an area is the person elected to the office of mayor by:(a) the councillors from among their number, unless there is a decision in force under this Division which provides for the election of the mayor by the electors, or(b) the electors, if such a decision is in force.Note. As to the election of the mayor, see also section 282.
228 How is it decided that the mayor be elected by the electors?
(1) It may be decided at a constitutional referendum that the mayor be elected by the electors.(2) A decision that the mayor be elected by the electors takes effect in relation to the next ordinary election after the decision is made.
229 Can the decision be changed?
(1) A decision that the mayor be elected by the electors is rescinded only if a constitutional referendum decides in favour of discontinuing that means of election.(2) The rescission takes effect in relation to the next ordinary election after the rescission occurs.
230 For what period is the mayor elected?
(1) A mayor elected by the councillors holds the office of mayor for 1 year, subject to this Act.(2) A mayor elected by the electors holds the office of mayor for 4 years, subject to this Act.(3) The office of mayor:(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.(4) A person elected to fill a casual vacancy in the office of mayor holds the office for the balance of the predecessor’s term.
(1) The councillors may elect a person from among their number to be the deputy mayor.(2) The person may be elected for the mayoral term or a shorter term.(3) The deputy mayor may exercise any function of the mayor at the request of the mayor or if the mayor is prevented by illness, absence or otherwise from exercising the function or if there is a casual vacancy in the office of mayor.(4) The councillors may elect a person from among their number to act as deputy mayor if the deputy mayor is prevented by illness, absence or otherwise from exercising a function under this section, or if no deputy mayor has been elected.
232 What is the role of a councillor?
(1) The role of a councillor is, as a member of the governing body of the council:• to direct and control the affairs of the council in accordance with this Act• to participate in the optimum allocation of the council’s resources for the benefit of the area• to play a key role in the creation and review of the council’s policies and objectives and criteria relating to the exercise of the council’s regulatory functions• to review the performance of the council and its delivery of services, and the management plans and revenue policies of the council.(2) The role of a councillor is, as an elected person:• to represent the interests of the residents and ratepayers• to provide leadership and guidance to the community• to facilitate communication between the community and the council.
233 For what period is a councillor elected?
(1) A councillor (other than the mayor) holds office for 4 years, subject to this Act.(2) The office of councillor:(a) commences on the day the person elected to the office is declared to be so elected, and(b) becomes vacant on the day appointed for the next ordinary election of councillors, or on the occurrence of a casual vacancy in the office.(3) A person elected to fill a casual vacancy in the office of councillor holds the office for the balance of the predecessor’s term.
234 When does a vacancy occur in a civic office?
(1) A civic office becomes vacant if the holder:(a) dies, or(b) resigns the office by writing addressed to the general manager, or(c) is disqualified from holding civic office, or(d) is absent from 3 consecutive ordinary meetings of the council (unless the holder is absent because he or she has been suspended from office under section 482) without:(i) prior leave of the council, or(ii) leave granted by the council at any of the meetings concerned, or(e) becomes bankrupt, applies to take the benefit of any law for the relief of bankrupt or insolvent debtors, compounds with his or her creditors or makes an assignment of his or her remuneration for their benefit, or(f) becomes a mentally incapacitated person, or(g) is dismissed from civic office, or(h) ceases to hold the office for any other reason.Note. See section 275 for the circumstances in which a person is disqualified from holding civic office.(2) For the purposes of subsection (1) (d), a councillor applying for a leave of absence from a meeting of a council does not need to make the application in person and the council may grant such leave in the absence of that councillor.
Division 4 Local Government Remuneration Tribunal
235 Local Government Remuneration Tribunal
There is established by this Act a tribunal to be known as the Local Government Remuneration Tribunal.
(1) For the purposes of this Part, there are to be 2 assessors:(a) one of whom is to be the Director-General, and(b) the other of whom is to be a person appointed by the Governor on the nomination of the Minister, being a person who has, in the Minister’s opinion, special knowledge of the system of local government in New South Wales.(2) The Remuneration Tribunal, in exercising the Remuneration Tribunal’s functions is:(a) to be assisted by the assessors, and(b) to take into consideration the views and recommendations tendered by the assessors.
237 Provisions relating to the appointment, term of office and remuneration of the Remuneration Tribunal and assessors
Schedule 1 has effect with respect to the Remuneration Tribunal and the assessors.
238 Functions of the Remuneration Tribunal
(1) The Remuneration Tribunal has the functions conferred or imposed on the Remuneration Tribunal by or under this Act.(2) In addition, the Remuneration Tribunal has such functions as may be conferred or imposed on the Remuneration Tribunal by the Minister.
239 Categorisation of councils and mayoral offices
(1) The Remuneration Tribunal must, at least once every 3 years:(a) determine categories for councils and mayoral offices, and(b) place each council and mayoral office into one of the categories it has determined.(2) The determination of categories by the Remuneration Tribunal is for the purpose of enabling the Remuneration Tribunal to determine the maximum and minimum amounts of fees to be paid to mayors and councillors in each of the categories so determined.
240 How are the categories to be determined?
(1) The Remuneration Tribunal is to determine categories for councils and mayoral offices according to the following matters:• the size of areas• the physical terrain of areas• the population of areas and the distribution of the population• the nature and volume of business dealt with by each council• the nature and extent of the development of areas• the diversity of communities served• the regional, national and international significance of the council• such matters as the Remuneration Tribunal considers relevant to the provision of efficient and effective local government• such other matters as may be prescribed by the regulations.(2) In the application of this section to county councils, the categories of county councils are to be determined having regard also to the functions of county councils.
The Remuneration Tribunal must, not later than 1 May in each year, determine, in each of the categories determined under section 239, the maximum and minimum amounts of fees to be paid during the following year to councillors (other than mayors) and mayors.
(1) The Minister may direct the Remuneration Tribunal to make a determination as to whether, and (if so) how, a determination already made should be altered in relation to such councillors or mayors as are specified in the direction.(2) Such a determination must be made before the date specified for the purpose in the Minister’s direction.(3) In making the determination, the Remuneration Tribunal is to take into consideration such matters as are specified in the Minister’s direction and such other matters as the Remuneration Tribunal thinks fit.
(1) Before making a determination, the Remuneration Tribunal may make such inquiry as the Remuneration Tribunal thinks necessary.(2) In exercising a function, the Remuneration Tribunal:(a) may obtain and assess information in such manner as the Remuneration Tribunal thinks fit, and(b) may receive written or oral submissions, and(c) is not required to conduct any proceedings in a formal manner, and(d) is not bound by the rules of evidence.
244 Reports of the Remuneration Tribunal
(1) The Remuneration Tribunal must, within 7 days after making a determination under section 239, make a report to the Minister of the determination.(2) The Remuneration Tribunal must, not later than 1 May in each year, make a report to the Minister of the determination made under section 241.(3) The Remuneration Tribunal must, within 7 days after making a determination under section 242, make a report to the Minister of the determination.
245 Publication and tabling of reports
(1) The report of a determination of the Remuneration Tribunal must:(a) be published in the Gazette as soon as practicable after the report is received by the Minister, and(b) be laid before each House of Parliament within 14 sitting days of that House after the day on which it is so published.(2) Failure to lay a report before each House of Parliament in accordance with this section does not affect the validity of a determination, but the report must nevertheless be laid before each House.
A determination of the Remuneration Tribunal may not be challenged, reviewed, quashed or called into question before any court in any legal proceedings, or restrained, removed or otherwise affected by proceedings in the nature of prohibition, mandamus, certiorari or otherwise.
247 Assistance for the Remuneration Tribunal
The Minister is to make available to the Remuneration Tribunal such persons employed under Part 2 of the Public Sector Management Act 1988 as may be necessary to assist the Remuneration Tribunal in the exercise of the Remuneration Tribunal’s functions.
Division 5 What fees, expenses and facilities may be paid or provided to councillors?
248 Fixing and payment of annual fees for councillors
(1) A council must pay each councillor an annual fee.(2) A council may fix the annual fee and, if it does so, it must fix the annual fee in accordance with the appropriate determination of the Remuneration Tribunal.(3) The annual fee so fixed must be the same for each councillor.(4) A council that does not fix the annual fee must pay the appropriate minimum fee determined by the Remuneration Tribunal.
248A Annual fees not to be paid during period of suspension
A council must not pay an annual fee to a councillor for any period during which the councillor is suspended from office under section 482 or 485.
249 Fixing and payment of annual fees for the mayor
(1) A council must pay the mayor an annual fee.(2) The annual fee must be paid in addition to the fee paid to the mayor as a councillor.(3) A council may fix the annual fee and, if it does so, it must fix the annual fee in accordance with the appropriate determination of the Remuneration Tribunal.(4) A council that does not fix the annual fee must pay the appropriate minimum fee determined by the Remuneration Tribunal.(5) A council may pay the deputy mayor (if there is one) a fee determined by the council for such time as the deputy mayor acts in the office of the mayor. The amount of the fee so paid must be deducted from the mayor’s annual fee.
250 At what intervals are fees to be paid?
Fees payable under this Division by a council are payable monthly in arrears for each month (or part of a month) for which the councillor holds office.
251 What is the consequence of paying fees?
(1) A person is not, for the purposes of any Act, taken to be an employee of a council and is not disqualified from holding civic office merely because the person is paid a fee under this Division.(2) A fee paid under this Division does not constitute salary for the purposes of any Act.
252 Payment of expenses and provision of facilities
(1) A council must adopt a policy concerning the payment of expenses incurred or to be incurred by, and the provision of facilities to, the mayor, the deputy mayor (if there is one) and the other councillors in relation to discharging the functions of civic office.(2) The policy may provide for fees payable under this Division to be reduced by an amount representing the private benefit to the mayor or a councillor of a facility provided by the council to the mayor or councillor.(3) A council must not pay any expenses incurred or to be incurred by, or provide any facilities to, the mayor, the deputy mayor (if there is one) or a councillor otherwise than in accordance with a policy under this section.(4) A council may from time to time amend a policy under this section.(5) A policy under this section must comply with the regulations.
253 Public notice of proposed policy or amendments concerning expenses and facilities
(1) Before adopting or amending a policy for the payment of expenses or provision of facilities, the council must give at least 28 days’ public notice of the proposal.(2) However, if the council is of the opinion that any amendments to a policy are not substantial, it may adopt the amended policy without giving public notice.
254 Decision to be made in open meeting
The council or a council committee all the members of which are councillors must not close to the public that part of its meeting at which a policy for the payment of expenses or provision of facilities is adopted or amended, or at which any proposal concerning those matters is discussed or considered.
254A Circumstances in which annual fees may be withheld
(1) Despite this Division, a council may resolve that an annual fee will not be paid to a councillor or that a councillor will be paid a reduced annual fee determined by the council:(a) for any period of not more than 3 months for which the councillor is absent, with or without leave, from an ordinary meeting or ordinary meetings of the council, or(b) in any other circumstances prescribed by the regulations.Note. Section 428 (2) (f) requires a council to include, in its annual report:• the total amount of money expended during the year on mayoral fees and councillor fees• the council’s policy on the provision of facilities for, and the payment of expenses to, councillors• the total amount of money expended during the year on providing those facilities and paying those expenses.(2) Despite this Division, if a councillor is absent, with or without leave of the council, from ordinary meetings of the council for any period of more than 3 months, the council must not pay any annual fee, or part of an annual fee, to that councillor that relates to the period of absence that is in excess of 3 months.
Division 6 Appointment of administrator
255 Governor may dismiss mayor and councillors
(1) The Governor may, by proclamation, declare all civic offices in relation to a council to be vacant if:(a) a public inquiry concerning the council has been held, and(b) after considering the results of the inquiry, the Minister has recommended that the Governor make such a declaration.(2) The Governor may, by proclamation, declare all civic offices in relation to a council to be vacant if the Independent Commission Against Corruption, in a report referred to in section 74C of the Independent Commission Against Corruption Act 1988, recommends that consideration be given to the making of such a declaration because of systemic corruption within the council.(3) If the Independent Commission Against Corruption makes such a recommendation, all civic offices in relation to the council may be declared vacant under subsection (2) without the holding of a public or other inquiry concerning the council. However, the making of such a recommendation does not preclude the holding of a public or other inquiry.
256 Governor may appoint administrator or order fresh election
(1) By the same proclamation under section 255 or by one or more subsequent proclamations, the Governor is:(a) to appoint an administrator of the council for a specified term, or(b) to order the holding of a fresh council election,or both.(2) The Governor may, by those or other proclamations, make such further orders as the Minister recommends are necessary in the circumstances.
257 Declaration of council as non-functioning
(1) An administrator may be appointed for an area by the Governor without the necessity for a public inquiry under section 255 if the Governor declares the council to be non-functioning because:(a) the requirements of this Act as to the making and levying of an ordinary rate have not been followed, or(b) the council has not exercised its functions for 6 months or more, or(c) there are not enough councillors for there to be a quorum at council meetings.(2) The Governor may, as an alternative to the appointment of an administrator on the ground referred to in subsection (1) (c), appoint (or authorise a special election to elect) councillors to fill all the vacancies on the council or such number of those vacancies as will provide a quorum at meetings.
(1) When the administrator of a council takes office:(a) any persons holding civic office in relation to the council cease to hold office, and(b) the administrator has all the functions of the council until immediately before the first meeting of the council held after the fresh election.(2) The administrator must be paid a salary from the council’s funds determined by the Governor.(3) The Governor may terminate the administrator’s appointment at any time.(4) The administrator ceases to hold office:(a) immediately before the first meeting of the council held after the fresh election, or(b) if the administrator’s appointment is earlier terminated by the Governor.
259 Temporary exercise of the council’s functions
(1) In this section, the transitional period means the period between:(a) the appointment of an administrator of a council and the time at which the administrator takes office, or(b) the declaration of a council to be non-functioning and the time at which the appointed or elected councillors for the area take office, if the declaration provides for their appointment or election instead of the appointment of an administrator.(2) During the transitional period, the mayor, or the general manager if there is no mayor, may temporarily exercise the following functions of the council:(a) the continuation of works and services already commenced,(b) the payment of council employees,(c) the payment of accounts due,(d) the administration of the area without expenditure other than those payments and payments approved by the Minister.
Part 3 Local Government Boundaries Commission
260 Constitution of the Boundaries Commission
There is constituted by this Act a body corporate with the name of Local Government Boundaries Commission.
261 Membership of Boundaries Commission
(1) The Boundaries Commission is to consist of 4 commissioners appointed by the Governor.(2) Of the commissioners:(a) one is to be a person nominated by the Minister, and(b) one is to be an officer of the Department nominated by the Director-General, and(c) 2 are to be persons appointed from the panel constituted under section 262 (1).(3) Despite subsection (2), the Boundaries Commission is taken to be properly constituted when the commissioners referred to in paragraphs (a) and (b) of that subsection have been appointed.(4) The commissioner referred to in subsection (2) (a) is the chairperson of the Boundaries Commission.(5) Schedule 2 has effect with respect to the commissioners and the procedure of the Boundaries Commission.
262 How is a panel to be constituted for the purposes of making an appointment as a commissioner?
(1) There is to be a panel consisting of 8 persons, 4 of whom are councillors nominated by the executive of the Local Government Association of New South Wales and 4 of whom are councillors nominated by the executive of the Shires Association of New South Wales.(2) The nomination of members of the panel must be made in the manner determined by the Minister. A person must not be nominated as a member of the panel unless he or she has consented in writing to be nominated.(3) If an insufficient number of nominations have been made to the panel to enable the Governor to appoint a commissioner or commissioners in accordance with this Part, the Governor may appoint a person to be a commissioner on the recommendation of the Minister.
263 Functions of the Boundaries Commission
(1) The Boundaries Commission is required to examine and report on any matter with respect to the boundaries of areas and the areas of operation of county councils which may be referred to it by the Minister.(2) For the purpose of exercising its functions, the Boundaries Commission:(a) may hold an inquiry if the Minister so approves, and(b) must hold an inquiry if the Minister so directs,but may not hold an inquiry otherwise than as referred to in paragraph (a) or (b).(2A) Despite subsection (2), the Boundaries Commission must hold an inquiry for the purpose of exercising its functions in relation to a proposal for the amalgamation of two or more areas that has been referred to it in accordance with section 218F.(2B) Reasonable public notice must be given of the holding of an inquiry under this section.(3) When considering any matter referred to it that relates to the boundaries of areas or the areas of operations of county councils, the Boundaries Commission is required to have regard to the following factors:(a) the financial advantages or disadvantages (including the economies or diseconomies of scale) of any relevant proposal to the residents and ratepayers of the areas concerned,(b) the community of interest and geographic cohesion in the existing areas and in any proposed new area,(c) the existing historical and traditional values in the existing areas and the impact of change on them,(d) the attitude of the residents and ratepayers of the areas concerned,(e) the requirements of the area concerned in relation to elected representation for residents and ratepayers at the local level, the desirable and appropriate relationship between elected representatives and ratepayers and residents and such other matters as it considers relevant in relation to the past and future patterns of elected representation for that area,(e1) the impact of any relevant proposal on the ability of the councils of the areas concerned to provide adequate, equitable and appropriate services and facilities,(e2) the impact of any relevant proposal on the employment of the staff by the councils of the areas concerned,(e3) the impact of any relevant proposal on rural communities in the areas concerned,(e4) in the case of a proposal for the amalgamation of two or more areas, the desirability (or otherwise) of dividing the resulting area or areas into wards,(e5) in the case of a proposal for the amalgamation of two or more areas, the need to ensure that the opinions of each of the diverse communities of the resulting area or areas are effectively represented,(f) such other factors as it considers relevant to the provision of efficient and effective local government in the existing and proposed new areas.(4) The Boundaries Commission is not entitled to examine or report on any matter relating to the area of operations of a county council constituted or proposed to be constituted for the supply of electricity.(5) The Boundaries Commission must allow members of the public to attend any inquiry held by the Commission under this section.(6) The Boundaries Commission may continue with an examination or inquiry even though a commissioner or acting commissioner replaces another commissioner during the course of the examination or inquiry.(7) The Supreme Court may not make an order in the nature of prohibition in respect of, or an order for removing to the Court or quashing, any decision or proceeding made or conducted by the Boundaries Commission in connection with the exercise of its functions.
264 Can a person be represented in proceedings before the Boundaries Commission?
(1) In proceedings before the Boundaries Commission, a person is not entitled to be represented:(a) by a barrister or solicitor or by a person qualified for admission as a barrister or solicitor, or(b) by any person acting for a fee or reward.(2) However, this section does not prevent:(a) an employee of a person from representing the person before the Boundaries Commission if the employee is not a person referred to in subsection (1) (a), or(b) a person who is the mayor of an area or the chairperson of a county council from appearing in that capacity in proceedings before that Commission, or(c) a person referred to in subsection (1) (a) from preparing any documents or submissions or tendering any legal advice in connection with any proceedings before that Commission.
265 Boundaries Commission may conduct survey or poll
(1) To assist it in determining the attitude of the residents and ratepayers of an area or areas for the purposes of section 263 (3) (d), the Boundaries Commission may conduct (in such manner as it thinks appropriate) an opinion survey or poll of the residents and ratepayers.(2) The residents and ratepayers of the area or areas concerned may participate in any such opinion survey or poll but are not required to do so.(3) The Boundaries Commission may request the Electoral Commissioner, a council or any other person or organisation to conduct any such opinion survey or poll.