Part 2A council is constituted by this Act for each area.
(1) A council is a body politic of the State with perpetual succession and the legal capacity and powers of an individual, both in and outside the State.(2) A council is not a body corporate (including a corporation).(3) A council does not have the status, privileges and immunities of the Crown (including the State and the Government of the State).(4) A law of the State applies to and in respect of a council in the same way as it applies to and in respect of a body corporate (including a corporation).
(1) The 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 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.
224A Approval to reduce number of councillors
(1) A council may resolve to make an application to the Minister to approve a decrease in the number of councillors within the limits referred to in section 224 (1).(2) The council must give not less than 42 days’ public notice of its proposed resolution.(3) After passing the resolution, the council must forward to the Minister a copy of the resolution, a summary of any submissions received by it and its comments concerning those submissions.(4) The Minister may approve the application without amendment or may decline to approve the application.(5) If the Minister approves the application, the number of councillors of the council is reduced to the number specified in the application with effect on and from the day appointed for the next ordinary election of councillors after the application is approved.(6) Section 16 does not apply to a resolution of a council to make an application to the Minister under this section.(7) An application may be made under this section after the commencement of the Local Government Amendment (Elections) Act 2011 but before the expiry of 5 months after that commencement.(8) Nothing in this section prevents a council from making more than one application under this section or from taking action under section 224 to change the number of its councillors.(9) A council for an area that is divided into wards may not make an application under this section for a decrease in the number of councillors that would result in the number of councillors for each ward being fewer than 3.
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 provide a civic leadership role in guiding the development of the community strategic plan for the area and to be responsible for monitoring the implementation of the council’s delivery program• 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 delivery program 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.(3) If the holder of a civic office attends a council meeting (whether or not an ordinary meeting) despite having been granted leave of absence, the leave of absence is taken to have been rescinded as regards any future council meeting.(4) Subsection (3) does not prevent the council from granting further leave of absence in respect of any future council meeting.
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.
242A Tribunal to give effect to declared government policy on remuneration for public sector staff
(1) In making a determination, the Remuneration Tribunal is to give effect to the same policies on increases in remuneration as those that the Industrial Relations Commission is required to give effect to under section 146C of the Industrial Relations Act 1996 when making or varying awards or orders relating to the conditions of employment of public sector employees.(2) The policies referred to in subsection (1) do not include any policy that provides for increases in remuneration based on employee-related savings.
(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 or other remuneration not to be paid during period of suspension
A council must not at any time pay any fee or other remuneration, to which a councillor would otherwise be entitled as the holder of a civic office, in respect of any period during which:(a) the councillor is suspended from civic office under this Act, or(b) the councillor’s right to be paid any fee or other remuneration is suspended under this Act,unless another provision of this Act specifically authorises payment to be made, or specifically permits a person to authorise payment to be made, when the suspension is terminated.
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) Within 5 months after the end of each year, 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 provisions of this Act, the regulations and any relevant guidelines issued under section 23A.
253 Requirements before policy concerning expenses and facilities can be adopted or amended
(1) A council must give public notice of its intention to adopt or amend a policy for the payment of expenses or provision of facilities allowing at least 28 days for the making of public submissions.(2) Before adopting or amending the policy, the council must consider any submissions made within the time allowed for submissions and make any appropriate changes to the draft policy or amendment.(3) Despite subsections (1) and (2), a council need not give public notice of a proposed amendment to its policy for the payment of expenses or provision of facilities if the council is of the opinion that the proposed amendment is not substantial.(4) Within 28 days after adopting a policy or making an amendment to a policy for which public notice is required to be given under this section, a council is to forward to the Director-General:(a) a copy of the policy or amendment together with details of all submissions received in accordance with subsection (1), and(b) a statement setting out, for each submission, the council’s response to the submission and the reasons for the council’s response, and(c) a copy of the notice given under subsection (1).(5) A council must comply with this section when proposing to adopt a policy each year in accordance with section 252 (1) even if the council proposes to adopt a policy that is the same as its existing policy.
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.