(1) The seal of a council must be kept by the mayor or the general manager, as the council determines.(2) The seal of a council may be affixed to a document only in the presence of:(a) the mayor and the general manager, or(b) at least one councillor (other than the mayor) and the general manager, or(c) the mayor and at least one other councillor, or(d) at least 2 councillors other than the mayor.(3) The affixing of a council seal to a document has no effect unless the persons who were present when the seal was affixed (being persons referred to in subclause (2)) attest by their signatures that the seal was affixed in their presence.(4) The seal of a council must not be affixed to a document unless the document relates to the business of the council and the council has resolved (by resolution specifically referring to the document) that the seal be so affixed.(5) For the purposes of subclause (4), a document in the nature of a reference or certificate of service for an employee of the council does not relate to the business of the council.
Division 2 Compulsory acquisition of land for resale (section 188)
401 Meaning of “diligent inquiry”
(1) For the purposes of section 188 (2) (b) of the Act, a diligent inquiry for the owner of land that a council intends to acquire by compulsory process for the purpose of resale is the taking of all the actions named and described in this clause.(2) Searching of registers, being the searching of:(a) the Register kept under the Real Property Act 1900, and(b) the General Register of Deeds kept under the Conveyancing Act 1919, and(c) the National Native Title Register kept under the Native Title Act 1993 of the Commonwealth,to identify every person who has a legal or equitable estate or interest in the land, or an easement, right, charge, power or privilege over, or in connection with, the land.(3) Fixing a notice to the land, being the placing, on a board or other structure in a conspicuous place on the land, of a notice:(a) stating that the council intends to acquire the land specified in the notice by compulsory process for the purpose of resale, and(b) inviting the owner of the land to contact the council at an address specified in the notice.(4) Publishing a notice, being the publishing, in a newspaper circulating in the area in which the land is situated and in a newspaper circulating generally in New South Wales, of a notice referred to in subclause (3).(5) Giving notice to representatives of persons who may hold native title, being the giving of notice in the following ways:(a) the giving, to the New South Wales Aboriginal Land Council and to the relevant Local Aboriginal Land Council, of a notice:(i) stating that the council intends to acquire the land specified in the notice by compulsory process for the purpose of resale, and(ii) inviting any person who considers that he or she may hold native title to the land to contact the council at an address specified in the notice,(b) if a relevant procedure under the Native Title Act 1993 of the Commonwealth applies—the giving of notice as required under that procedure,(c) if a relevant procedure under that Act does not apply—the giving of notice (as set out in paragraph (a)) to any registered native title claimant (within the meaning of that Act) in relation to the land concerned by post or in such other manner to which the notified claimant agrees.(6) For the purposes of subclause (5), a relevant procedure is the procedure under Subdivision P of Division 3 of Part 2 of the Native Title Act 1993 of the Commonwealth or the procedure under section 24MD (6B) of that Act, or the procedure prescribed by a registered indigenous land use agreement.(7) Despite subclause (1), if an action referred to in subclause (5) (b) or (c) is substantially the same as an action referred to in subclause (3), (4) or (5) (a), the action concerned need be taken only once.
Division 3 Surveys and polls relating to council amalgamations or boundary changes (section 218F)
(1) For the purposes of a postal survey or opinion poll under section 218F (3) of the Act, the Boundaries Commission or Director-General, as the case requires, is to prepare a list of electors of an area concerned, being a list of:(a) resident electors, namely, the persons whose names are contained in the roll, as at a date determined by the Boundaries Commission or Director-General, required to be kept under section 298 of the Act as the residential roll in respect of the area, and(b) other eligible electors, being:(i) the persons whose names are contained in the rolls confirmed under sections 299 (non-residential owner roll) and 300 (roll of occupiers and ratepaying lessees) for the last election held for the area, or(ii) if such rolls are not current (in the opinion of the Boundaries Commission or Director-General), the persons who, on a date determined by the Boundaries Commission or Director-General, are non-resident owners, occupiers or ratepaying lessees of rateable land in the area, and who have indicated in a manner approved by the Boundaries Commission or Director-General their desire to be included in the list prepared for the area under this clause.(2) The persons whose names are contained in a list prepared under this clause are the electors of the area concerned for the purposes only of the postal survey or opinion poll in respect of which the list is prepared.
Division 4 Payments to councillors (sections 252 and 254A)
403 Payment of expenses and provision of facilities
A policy under section 252 of the Act must not include any provision enabling a council:(a) to pay any councillor an allowance in the nature of a general expense allowance, or(b) to make a motor vehicle owned or leased by the council available for the exclusive or primary use or disposition of a particular councillor other than a mayor.
404 Circumstances in which councillors’ annual fees may be reduced or not paid
For the purposes of section 254A of the Act, a prescribed circumstance for the non-payment or reduction of a councillor’s annual fee is the circumstance where both of the following conditions are satisfied:(a) the payment of the annual fee adversely affects the councillor’s entitlement to a pension, benefit or allowance under any legislation of the Commonwealth, a Territory or a State (including New South Wales),(b) the councillor agrees to the non-payment or reduction.
Division 5 Council staffing matters
405 Exemption from Ministerial approval for certain termination payments to senior staff
(1) The following kinds of payments to a senior staff member are exempted from section 354A of the Act:(a) a termination payment that does not exceed the value of the senior staff member’s total remuneration package over the 12 months preceding his or her termination of employment,(b) a payment to which the senior staff member is entitled, on termination of employment, under any Act,(c) a payment for untaken long service leave or untaken sick leave that does not exceed an amount to which a member of staff of a council, other than a senior staff member, would be entitled under any Act or award (within the meaning of section 27 of the Industrial Relations Act 1996).(2) For the purposes of subclause (1) (a), a senior staff member’s total remuneration package includes the matters set out in section 332 (3) (a)–(d) of the Act.
406 Determinations relating to staff entitlements during proposal period not requiring Ministerial approval
A determination to which section 354E of the Act applies is not required to be approved by the Minister if it complies with any of the following requirements:(a) it is a determination that is authorised by an industrial instrument, or employment policy of the former council, made or approved before the proposal period,(b) it is a determination in, or authorised by, an award, enterprise agreement or other industrial instrument made or approved by the Industrial Relations Commission or Australian Industrial Relations Commission,(c) it is a determination that comprises the renewal of an employment contract entered into before the proposal period.
406A Transfer of accrued leave entitlements
(1) In this clause:award means the Local Government (State) Award 2004 as in force immediately before 27 March 2006.
employee does not include a member of the senior staff of a council.
(2) The provisions of the award relating to the transfer of an employee’s accrued sick leave and long service leave entitlements when changing employment from one council to another (the relevant award provisions) apply, by force of this clause, in relation to an employee of a council who changes employment, in the circumstances referred to in the relevant award provisions, from one council to another.(3) Without limiting subclause (2), the relevant award provisions that apply by force of this clause include:(a) the liability of the council by which the employee concerned was last employed to pay the council by which the employee is currently employed the cost of the employee’s accrued long service leave entitlement, and(b) the right of the employee concerned to elect to be paid the monetary value of the employee’s accrued long service leave entitlement.(4) This clause applies to an employee of a council whether or not the employee was a person to whom the award applied.(5) Nothing in this clause affects any leave entitlement of a member of the senior staff of a council under the member’s employment contract.(6) Nothing in this clause affects any entitlement of an employee of a council conferred by or under Part 6 of Chapter 11 of the Act.Note. Clause 19, Part A of the award includes the following:(v) Accumulated sick leave shall be transferable on change of employment from council to council within New South Wales up to 13 weeks, provided that an employee shall only be entitled to transfer sick leave accumulated since the employee’s last anniversary date on a pro-rata basis. Such accumulated sick leave shall only be transferable if the period of cessation of service with the council and appointment to the service of another council does not exceed three months. The sick leave entitlement transferred shall not exceed the maximum amount transferable as prescribed by the appropriate award at the time of transfer.Clause 19, Part D of the award includes the following:
(iii)(a) For the purpose of calculating long service leave entitlement in accordance with subclause (i) of this clause all prior continuous service with any other council within New South Wales shall be deemed to be service with the council by which the employee is currently employed.(b) Continuity of service shall be deemed not to have been broken by transfer or change of employment from one council to another provided the period between cessation of service with one council and appointment to the service of another council does not exceed three months and such period is covered by accrued annual and long service leave standing to the credit of the employee at the time of the transfer, provided further that the employee concerned does not engage in work of any kind during the period of paid leave between the cessation of service with one council and appointment to the service of another council.(iv) For the purpose of this clause, service shall include the following periods:-(a) Any period of service with any of Her Majesty’s Forces provided that the employee enlisted or was called up direct from the service of a council.(b) In the case of an employee, transferred to the service of a council of a new or altered area - any period of service with the council from which such employee was transferred.(c) Service shall mean all service with a council irrespective of the classification under which the employee was employed.(v) There shall be deducted in the calculation of the employee’s service all leave of absence without payment not specifically acknowledged and accepted by council as service at the time leave was taken.(vi) When an employee transfers from one council to another, the former council shall pay to the newly employing council the monetary equivalent of all long service leave accruing to the employee at the time of transfer. However, an employee who at the time of transfer has completed at least five years continuous service may elect to be paid the monetary equivalent of the entitlement. Employees who at the time of transfer elect to be paid the monetary equivalent of their long service leave entitlement shall have that entitlement calculated by multiplying in completed years and months their period of continuous service with council(s). A statement showing all prior continuous service with the council(s) of the employee concerned shall be furnished together with details of the assessment of the amount of money that shall be paid into a Long Service Leave Reserve Account and appropriate notations made in the council’s Long Service Leave Record.(vii) A council which has received under subclause (vi) of this clause a monetary equivalent of long service leave entitlement to cover an employee’s period of service with a previously employing council(s) shall if the employee subsequently leaves the service of that employing council to seek employment outside New South Wales Local Government before a long service leave entitlement has become due, refund to such previously employing council(s) the amount paid.Clause 38 of the award includes the following:
(v) Where an employee prior to 11 May 1995, had an entitlement to transfer accumulated sick leave from one council to another council in New South Wales, under the Local Government Senior Officers’ Award the employee shall retain this entitlement.
Division 6 Winding up of Cudgegong (Abattoir) County Council (section 400AA)
407 Modification of Parts 5.5–5.9 of the Corporations Act 2001 of the Commonwealth concerning winding up of Cudgegong (Abattoir) County Council
For the purposes of clause 1 (2) (g) of Schedule 9 to the Act, the following modifications of Parts 5.5–5.9 of the Corporations Act 2001 of the Commonwealth are prescribed:(a) the definition of recovery proceeding in section 588E (1) is to be read as if paragraphs (e) and (f) were omitted,(b) section 588E (8) is to be read as if paragraphs (d) and (e) were omitted,(c) section 588FF is to be read as if “(but not a director)” were inserted after “a person” wherever occurring in section 588FF (1) (a), (b), (c) and (d),(d) Part 5.7B is to be read as if sections 588FGA and 588FGB were omitted,(e) Part 5.7B is to be read as if Divisions 3–7 were omitted,(f) section 590 is to be read as if “within 10 years next before the relevant day or at a time on or after that day” wherever occurring in section 590 (1) (c), (g) and (h) and (2) were omitted and “at any time on or after the relevant day” were inserted instead,(g) section 596A is to be read as if “, to the extent that they relate to its winding up,” were inserted after “affairs”,(h) section 596B (1) is to be read as if “, to the extent that they relate to its winding up,” were inserted after “affairs” where firstly occurring,(i) section 596B (1) (b) (i) is to be read as if “, to the extent that they relate to its winding up,” were inserted after “affairs of the corporation”,(j) section 596B (1) (b) (ii) is to be read as if “, to the extent that they relate to its winding up” were inserted after “affairs of the corporation”,(k) section 596D is to be read as if “, to the extent that they relate to its winding up” were inserted after “affairs” wherever occurring in section 596D (1) (b) and (2) (b),(l) section 597 (5B) is to be read as if “, to the extent that they relate to its winding up,” were inserted after “corporation”,(m) section 597A is to be read as if “(winding up)” were inserted after “affairs” in the heading,(n) section 598 (2) (a) is to be read as if “the winding up of” were inserted after “in relation to”.
408 Arrangements excluded from provisions relating to public-private partnerships
(1) For the purposes of section 400B (1) of the Act, the following arrangements are excluded from the operation of Part 6 of Chapter 12 of the Act:(a) any arrangement between a council and a private person that is subject to the tendering requirements under section 55 of the Act,(b) the contracting out of any council staff or business unit to provide services for a private person on a full cost recovery or for profit basis,(c) any arrangement under which a council acts as trustee in connection with a bequest or donation of any property from a private person,(d) any lease or licence over any Crown land or community land granted by a council to a private person,(e) the sale by a council to a private person of any property (including operational land),(f) any arrangement arising out of the operation of Division 6 of Part 4 of the Environmental Planning and Assessment Act 1979,(g) any arrangement arising out of the imposition by a council of a requirement under section 306 of the Water Management Act 2000 (as applying to the council by virtue of section 64 of the Act).(2) In this clause, private person has the same meaning as in section 400B (2) of the Act.
409 Transitional arrangement relating to public-private partnership proposals originating after 28 June 2002
(1) If a proposal to carry out a project under a public-private partnership originated on or after 28 June 2002 but the relevant council did not, before the commencement of this clause, resolve to enter into a public-private partnership to carry out the project, the assessment of the project that is required to be provided by the council under section 400F of the Act is taken to have been prepared in accordance with the PPP guidelines. Accordingly, the general manager of the council is not, in any such case, required to certify that the project assessment has been prepared in accordance with the PPP guidelines.(2) For the purposes of subclause (1), a proposal to carry out a project under a public-private partnership is taken to have originated when the relevant council resolved to investigate the proposed project and to develop the proposal with other parties.
410 Entities excluded from restrictions under section 358 of the Act as to formation
(1) For the purposes of section 358 (4) of the Act, an entity formed under any of the following arrangements is excluded from the definition of entity under that section:(a) an arrangement between a council and a private person that is subject to the tendering requirements under section 55 of the Act,(b) the contracting out of any council staff or business unit to provide services for a private person on a full cost recovery or for profit basis,(c) any arrangement under which a council acts as trustee in connection with a bequest or donation of any property from a private person,(d) the sale by a council to a private person of any property (including operational land),(e) any arrangement arising out of the operation of Division 6 of Part 4 of the Environmental Planning and Assessment Act 1979,(f) any arrangement arising out of the imposition by a council of a requirement under section 306 of the Water Management Act 2000 (as applying to the council by virtue of section 64 of the Act).(2) In this clause, private person has the same meaning as in section 400B (2) of the Act.
Division 8 Bathing control notices (section 633)
(1) Notices that are used by a council to control bathing must comply with the requirements of AS 2416.(2) A council that uses flags to designate an area for bathing must ensure that the flags are removed from the area whenever the area is closed for bathing.(3) In this clause:AS 2416 means the Australian Standard entitled Design and Application of Water Safety Signs and numbered AS 2416—2002, as published by Standards Australia on 7 February 2002.
bathing includes surfing and any other similar form of recreation.
Division 9 Disclosure and misuse of information
For the purposes of section 664 (1B) (c) of the Act, any disclosure made with the intention of enabling the Minister or the Director-General to properly exercise the functions conferred or imposed on them by or under the Act is a prescribed circumstance.
Division 10 Application of certain penalties
413 Parking and related offences for purposes of section 694
Any offence for which a penalty notice may for the time being be served under section 15 of the Road Transport (General) Act 1999 or section 183 of the Road Transport (General) Act 2005 by a Class 12 officer referred to in Schedule 1 to the Road Transport (General) (Penalty Notice Offences) Regulation 2002 is declared to be a parking or related offence for the purposes of section 694 of the Act.Note. The Road Transport (General) (Penalty Notice Offences) Regulation 2002 defines the expression Class 12 officer and lists the offences for which a penalty notice may be served by such an officer. By operation of this clause, any offence in that list is a parking or related offence for the purposes of section 694 of the Act.
Division 11 Functions of general manager
413A Functions of general manager (section 335)
If a court or tribunal orders a council to pay any fine or other penalty, or to pay costs in relation to any legal proceedings, it is the duty of the council’s general manager to ensure that the following information is made available to each councillor as soon as practicable after the order is made:(a) the date on which the order was made,(b) the amount of the fine, penalty or costs,(c) the act or omission giving rise to the fine or penalty, or the nature of the legal proceedings giving rise to the costs, as the case may be.