Part 1 Preliminary

1   Name of Regulation

This Regulation is the Local Government (General) Regulation 2005.

2   Commencement

This Regulation commences on 1 September 2005.

Note. This Regulation is a consolidation of nine Regulations under the Local Government Act 1993, each of which is repealed on 1 September 2005 by section 10 (2) of the Subordinate Legislation Act 1989.

3   Definitions

(1)  In this Regulation:

building includes a proposed building.

Category 1 business activity has the same meaning as in the Pricing and Costing Guidelines.

Category 2 business activity has the same meaning as in the Pricing and Costing Guidelines.

environmentally sensitive area includes:

(a)  land or an area listed in the definition of environmentally sensitive area in Part 4 of Schedule 3 to the Environmental Planning and Assessment Regulation 2000, and

(b)  any land or area:

(i)  within 100 metres of a natural waterbody, wetland or coastal dune field, or

(ii)  with a high watertable, or

(iii)  with highly permeable soils or acid sulphate, sodic or saline soils, or

(iv)  within a drinking water catchment, or

(v)  within the water catchment area of an estuary where the entrance to the sea is intermittently open.

house drain means that part of the sewerage service that conveys (or is intended to convey) the discharges from soil pipes and waste pipes on premises.

house service pipe means such part of a water service pipe as is not a property service pipe.

inspector means an employee of the council who is an authorised person for the purposes of exercising the functions of an inspector under this Regulation.

interceptor trap or boundary trap means a trap for preventing the passage of air or gases from the sewer to the house drain, being a trap located at some point between the sewer and the lowest inlet of the house drain.

licensed contractor, in relation to carrying out water supply, sewerage or drainage work, means the holder of a contractor licence in force under the Home Building Act 1989 that authorises the holder to carry out that work.

Liquid Trade Waste Management Guidelines means the Guidelines of that name produced by the Department of Energy, Utilities and Sustainability in March 2005, as in force from time to time.

Local Aboriginal Land Council means a Local Aboriginal Land Council constituted under the Aboriginal Land Rights Act 1983.

Manual of Authorization Procedures means the Manual of authorization procedures for plumbing and drainage products (MP 52–2005) published by Standards Australia.

New South Wales Aboriginal Land Council means the New South Wales Aboriginal Land Council constituted under the Aboriginal Land Rights Act 1983.

pan means any moveable receptacle kept in a closet and used for the reception of human waste.

penalty notice means a notice served under section 679 of the Act.

Plumbing Code of Australia means the document entitled the Plumbing Code of Australia, produced for all State governments by the Australian Building Codes Board, as in force from time to time.

Pricing and Costing Guidelines means the document entitled Pricing & Costing for Council Businesses—A Guide to Competitive Neutrality issued by the Department in July 1997, as in force from time to time.

principles of competitive neutrality has the same meaning as in the Pricing and Costing Guidelines.

property service pipe means such part of a water service pipe as lies between the service main and the water meter or, if there is no water meter, the boundary of the premises served by the service pipe.

public sewer means a sewer operated by a council or a county council, a water supply authority (within the meaning of the Water Management Act 2000), a State owned corporation specified in Schedule 1 or 5 to the State Owned Corporations Act 1989 (or a subsidiary of such a corporation) or any other public or local authority.

qualified supervisor, in relation to the carrying out of water supply, sewerage or drainage work, means the holder of an endorsed contractor licence or supervisor certificate in force under the Home Building Act 1989 authorising the holder to carry out or to supervise that work.

related effluent application area, in relation to a sewage management facility, means the area of land (if any):

(a)  where it is intended to dispose of the effluent and any by-products of sewage from the facility, or

(b)  to which the effluent and by-products are intended to be applied.

septic tank means a fixed receptacle of watertight material used in connection with the storage or bacterial treatment of sewage.

service main means a water main or a sewer main.

sewage includes any effluent of the kind referred to in paragraph (a) of the definition of waste in the Dictionary to the Act.

sewage management facility means:

(a)  a human waste storage facility, or

(b)  a waste treatment device intended to process sewage,

      and includes a drain connected to such a facility or device.

sewage of a domestic nature includes human faecal matter and urine and waste water associated with ordinary kitchen, laundry and ablution activities of a household, but does not include waste in or from a sewage management facility.

sewer main means a sewer main forming part of the council’s sewerage system, and:

(a)  includes risers or junctions provided by the council to enable a sewerage service to be connected to the main, and

(b)  if the main is located outside premises that are to be served—includes risers and the sewers and fittings connecting the main to the premises, but only up to the boundary of the premises or, if a boundary trap or interceptor trap is installed, up to the trap.

sewerage service, in relation to premises:

(a)  means the pipes, fittings or fixtures used or intended to be used in connection with the premises for the purpose of conveying sewage or permitted discharges from the premises to the council’s sewerage system, and

(b)  if a septic tank is installed on the premises and connects or is intended to connect (directly or indirectly) with the council’s sewerage system—includes a septic tank (other than a septic tank intended to discharge to a related effluent application area), an effluent tank or a sullage tank.

soil pipe means any pipe that conveys the discharge from human waste storage facilities, or from operating theatres or morgues, to the house drains.

the Act means the Local Government Act 1993.

trade waste means all liquid waste other than sewage of a domestic nature.

trap means any fitting designed to retain a quantity of water to prevent the passage of air or gases through such fitting.

waste pipe means any pipe that conveys discharges to a house drain from fixtures (other than human waste storage facilities) or operating theatres or morgues.

water main means a water main forming part of the council’s water supply system, and, if premises are or are to be connected to the main, includes water pipes and fittings connecting the main to the premises to the point within the premises at which the water meter is or is to be installed.

water service pipe means a pipe that connects premises to a water main.

(2), (3)  (Repealed)

(4)  Notes included in this Regulation do not form part of this Regulation.

4   Application of Regulation

Except as elsewhere provided in this Regulation, this Regulation:

(a)  applies to those parts of the State that are constituted as areas for the purposes of the Act, and

(b)  applies to county councils in the same way as it applies to councils.

Part 2 Approvals

Division 1 Preliminary

5   Exclusion of certain matters

This Part does not apply to:

(a)  the installation of manufactured homes, moveable dwellings or associated structures on land, or

(b)  the operation of manufactured home estates, caravan parks or camping grounds.

Note. The operation of manufactured home estates and the installation of manufactured homes in manufactured home estates, and the operation of caravan parks and camping grounds and the installation of moveable dwellings (including manufactured homes) both in caravan parks and camping grounds and elsewhere, are governed by the Local Government (Manufactured Home Estates, Caravan Parks, Camping Grounds and Moveable Dwellings) Regulation 2005.

Division 2

6–12(Repealed)

Division 3 Approvals relating to water supply, sewerage and stormwater drainage work

Subdivision 1 Applications for approvals

13   Standards and requirements to be met for approval

The council must not approve an application for an approval allowing water supply, sewerage or stormwater drainage work to be carried out unless it is satisfied that the activity as proposed to be carried out will comply with any applicable standards set out or referred to in Part 2 of Schedule 1 and with any other applicable standards or requirements set out or referred to in this Regulation.

14   Installation of water meters

A council may require an application for an approval relating to the installation of a water meter to be accompanied by a completed water meter identification form provided by the council for the purpose.

15   Matters to be considered when determining applications for water supply, sewerage and stormwater drainage approvals

(1)  This clause applies to the following activities:

(a)  carrying out water supply work,

(b)  drawing water from the council water supply or a standpipe,

(c)  installing, altering, disconnecting or removing a water meter connected to a service pipe,

(d)  carrying out sewerage work,

(e)  carrying out stormwater drainage work.

(2)  In determining an application for the purposes of section 68 of the Act for an approval to do any of the activities to which this clause applies, the council must have regard to the following considerations:

(a)  the protection and promotion of public health,

(b)  the protection of the environment,

(c)  the safety of its employees,

(d)  the safeguarding of its assets,

(e)  any other matter that it considers to be relevant in the circumstances.

Subdivision 2 Conditions of approvals

16   Approvals for stormwater drainage work to be subject to a condition requiring compliance with standards and requirements

It is a condition of an approval allowing stormwater drainage work that:

(a)  the activity approved, and

(b)  any building or work associated or carried out in connection with the activity,

complies with any applicable standards set out or referred to in Part 2 of Schedule 1 and with any other applicable standards or requirements set out or referred to in this Regulation or any other regulation under the Act or the Environmental Planning and Assessment Act 1979.

16A   Approvals for water supply or sewerage work subject to compliance with Plumbing and Drainage Act 2011, standards and requirements

It is a condition of an approval allowing water supply or sewerage work that the activity approved, and any building or work associated or carried out in connection with the activity, complies with:

(a)  any applicable requirements of the Plumbing and Drainage Act 2011 or the regulations made under that Act, and

(b)  any applicable standards or requirements set out or referred to in this Regulation or any other regulation under the Act or the Environmental Planning and Assessment Act 1979.

17   Discretionary conditions for carrying out water supply work

The council may, in giving an approval to carry out water supply work, impose either or both of the following conditions:

(a)  a condition that requires the work to be carried out within such time as the council considers reasonable,

(b)  a condition that requires a qualified supervisor to attend at the place at which the work is carried out at such times as the council directs.

18   Connection to water or sewerage mains

(1)  It is a condition of an approval for an activity that involves the connection of water service pipes or property service pipes to a water main or the connection of drains to a sewer main that the connection must:

(a)  comply with any operating requirements notified by the council, and

(b)  be carried out:

(i)  by a person authorised by the council, or

(ii)  by or under the control of a council officer.

(2)  The council may, as a condition of approving the connection to a water or sewer main, require that the connection must not be started unless at least 2 days’ notice of intention to start the work has been given to the council.

19   Cutting into sewer main

(1)  It is a condition of an approval for an activity that involves the cutting of a junction into a sewer main that the cutting of the junction must:

(a)  comply with any operating requirements notified by the council, and

(b)  be carried out by a qualified supervisor acting under the supervision and in accordance with the directions of the council.

(2)  The council may, as a condition of an approval for a junction to be cut into a sewer main, direct that the work must not be started unless at least 2 days’ notice of intention to start the work has been given to the council.

(3)  The council may, as a condition of an approval for a junction to be cut into a sewer main, require the work to be carried out by the council for a specified charge if the council has decided that the work should be carried out by the council.

20   Person carrying out water supply, sewerage or stormwater drainage work to hold permit

(1)  It is a condition of an approval referred to in item 1, 4, 5 or 6 of Part B of the Table to section 68 of the Act that a person must not begin carrying out the activity approved unless the person is the holder of a permit issued in accordance with the Plumbing Code of Australia.

(2)  This clause does not apply in respect of any activity that is plumbing and drainage work within the meaning of the Plumbing and Drainage Act 2011.

21   Inspection and certification of water supply, sewerage and stormwater drainage work

An approval referred to in item 1, 4, 5 or 6 of Part B of the Table to section 68 of the Act is subject to the following conditions:

(a)  a person must not put into use a soil, waste or house drain pipe, or cover up or conceal from view an underground or enclosed water supply, sewerage or stormwater drainage work or put into use such a work, until the work has been inspected and certified:

(i)  by the council or a suitably qualified person determined by the council, or

(ii)  if the work is of a type for which the approval of the Minister for Utilities is required under section 60 of the Act—in accordance with subparagraph (i) or, if that Minister has specifically authorised inspection and certification by another suitably qualified person, by that person,

      as having been constructed in accordance with the Act and this Regulation,

(b)  any such inspection and certification must be carried out in accordance with the Plumbing Code of Australia and the requirements of the council,

(c)  a person undertaking the construction of a water supply, sewerage or stormwater drainage work must provide every reasonable facility and all necessary information to enable inspection of the work for the purposes of paragraph (a),

(d)  in particular, such a person must, if required to do so by a person carrying out an inspection for the purposes of paragraph (a), produce the plan (if any) of the work for that person to look at,

(e)  a person carrying out water supply, sewerage or stormwater drainage work must immediately rectify to the satisfaction of the council any defect revealed by an inspection under paragraph (a).

22   Defective water supply, sewerage or stormwater drainage work to be rectified

(1)  It is a condition of an approval referred to in item 1, 4, 5 or 6 of Part B of the Table to section 68 of the Act that a licensed contractor who carries out the activity approved must, if ordered to do so by the council, rectify any defect in the work that is due to faulty workmanship or defective material, but only if the council notifies the contractor of the defect after the date of issue by the contractor of a certificate to the effect that the work has been carried out as required by the Act and the Environmental Planning and Assessment Act 1979.

(2)  A licensed contractor so notified must bear the cost of rectifying the defect.

(3)  This clause does not apply in respect of any activity that is plumbing and drainage work within the meaning of the Plumbing and Drainage Act 2011.

23   Diagrams of sewerage or stormwater drainage work

(1)  It is a condition of an approval referred to in item 4 or 5 of Part B of the Table to section 68 of the Act that, if the activity approved is carried out on private premises, the person who carries out the activity must provide to the council a diagram of any drains installed in accordance with the approval.

(2)  Such a diagram must show:

(a)  the level of the drains in relation to the sewer main junction and the finished ground level, and

(b)  the distances from the drains to the nearest boundaries of, and buildings on, the premises.

(3)  This clause does not apply in respect of any activity that is plumbing and drainage work within the meaning of the Plumbing and Drainage Act 2011.

Subdivision 3 Exemption

24   Approval not required for the drawing of water by council employees

An employee of a council acting in the course of his or her employment may draw water from a water supply system or standpipe without the prior approval of the council.

Division 4 Approvals relating to management of waste

Subdivision 1 Applications for approvals

25   Matters to accompany applications relating to discharge into sewers

An application for approval to discharge trade waste into a sewer under the control of a council or that connects with such a sewer must be accompanied by the information required by Table 1 to the Liquid Trade Waste Management Guidelines.

26   Matters to accompany applications for approval to install or construct sewage management facilities

(1)  An application for approval to install or construct a sewage management facility on any premises must be accompanied by the documents specified in this clause.

(2) Plan
The application must be accompanied by a plan, to scale, showing the location of:

(a)  the sewage management facility proposed to be installed or constructed on the premises, and

(b)  any related effluent application areas, and

(c)  any buildings or facilities existing on, and any environmentally sensitive areas of, any land located within 100 metres of the sewage management facility or related effluent application areas, and

(d)  any related drainage lines or pipework (whether natural or constructed).

(3) Specifications
The application must be accompanied by full specifications of the sewage management facility proposed to be installed or constructed on the premises concerned.

(4) Site assessment
The application must be accompanied by details of the climate, geology, hydrogeology, topography, soil composition and vegetation of any related effluent application areas together with an assessment of the site in the light of those details.

(5) Statement
The application must be accompanied by a statement of:

(a)  the number of persons residing, or probable number of persons to reside, on the premises, and

(b)  such other factors as are relevant to the capacity of the proposed sewage management facility.

(6) Operation and maintenance
The application must be accompanied by details of:

(a)  the operation and maintenance requirements for the proposed sewage management facility, and

(b)  the proposed operation, maintenance and servicing arrangements intended to meet those requirements, and

(c)  the action to be taken in the event of a breakdown in, or other interference with, its operation.

(7)  This clause does not apply to an application for approval to install or construct a sewage management facility on any premises if the applicant declares in the application that the facility will remain on the premises for no more than 12 months.

Note. The information that is to accompany such applications (and applications for approval to alter a sewage management facility) is to be determined by the council in each particular case. Section 81 of the Act provides that an application for an approval under Part 1 of Chapter 7 of that Act (in which category such applications fall) must be accompanied by “such matters as may be prescribed by the regulations and such matters specified by the council as may be necessary to provide sufficient information to enable the council to determine the application”.

Subdivision 2 Determination of applications for approvals

27   Matters to be taken into consideration by council in determining applications for approval to place a building waste storage container on a road

In determining an application for approval to place on a road a building waste storage container, the council is to take into consideration any requirements or guidelines relating to the location, size and visibility of building waste storage containers that are notified to the council from time to time by the Roads and Traffic Authority.

28   Approval to discharge waste into sewers: concurrence required

A council must not grant an approval under section 68 of the Act to discharge trade waste (whether treated or not) into a sewer of the council unless the Director-General of the Department of Energy, Utilities and Sustainability has concurred with the approval.

Note. Section 90 (2) of the Act permits any person or authority whose concurrence is required before an approval may be granted to give the council notice that the concurrence may be assumed (with such qualifications or conditions as are specified in the notice).

29   Matters to be taken into consideration in determining applications for approval to install, construct or alter sewage management facilities

(1)  In determining an application for approval to install, construct or alter a sewage management facility, the council must take into consideration the matters specified in this clause.

(2) Environment and health protection matters
The council must consider whether the proposed sewage management facility (or the proposed sewage management facility as altered) and any related effluent application area will make appropriate provision for the following:

(a)  preventing the spread of disease by micro-organisms,

(b)  preventing the spread of foul odours,

(c)  preventing contamination of water,

(d)  preventing degradation of soil and vegetation,

(e)  discouraging insects and vermin,

(f)  ensuring that persons do not come into contact with untreated sewage or effluent (whether treated or not) in their ordinary activities on the premises concerned,

(g)  the re-use of resources (including nutrients, organic matter and water),

(h)  the minimisation of any adverse impacts on the amenity of the land on which it is installed or constructed and other land in the vicinity of that land.

(3) Guidelines and directions
The council must consider any matter specified in guidelines or directions issued by the Director-General in relation to the matters referred to in subclause (2).

30   Standards to be met for approval

The council must not grant an application for an approval to install, construct or alter a waste treatment device or sewage management facility unless it is satisfied that the activity as proposed to be carried out will comply with any applicable standards established by this Regulation or by or under the Act.

Subdivision 3 Conditions of approvals

31   Compliance with standards

(1)  It is a condition of an approval referred to in item 4 of Part C of the Table to section 68 of the Act (Dispose of waste into a sewer of the council) that:

(a)  the activity approved, and

(b)  any building or work associated or carried out in connection with the activity,

      complies with any applicable standards established by any regulation in force under the Act or the Environmental Planning and Assessment Act 1979.

(2)  It is a condition of an approval referred to in item 5 of Part C of the Table to section 68 of the Act (Install, construct or alter a waste treatment device or a human waste storage facility or a drain connected to any such device or facility) that:

(a)  the activity approved, and

(b)  any building or work associated or carried out in connection with the activity,

      complies with any applicable standards established by this Regulation or by or under the Act.

32   Disposal of trade waste

(1)  An approval to dispose of trade waste into a sewer of the council is subject to such conditions (if any) as the council specifies in the approval.

(2)  In imposing any such conditions, the council is to have regard to the matter set out in Table 5 to the Liquid Trade Waste Management Guidelines.

33   Waste treatment devices

(1)  It is a condition of an approval to install, construct or alter a mechanical device that treats waste by compaction, shredding or other means that this clause is complied with.

(2)  An occupier of premises on which waste is deposited must comply with any directions given by the council from time to time as to the use of the device.

(3)  The waste treatment device and any part of the premises on which it is situated that is used in connection with the device must be maintained in a sanitary condition.

34   Use of sewage management facilities

It is a condition of an approval to install, construct or alter a sewage management facility that the facility is not used (or used as altered) until the council has given the applicant for approval notice in writing that it is satisfied that the facility has been installed, constructed or altered in substantial accordance with the approval.

35   Position of closets

The council may, as a condition of an approval to install, construct or alter a human waste storage facility, require the alteration of its design and proposed position, having regard to its effect on the amenity of the locality.

Subdivision 4 Performance standards

36   Sewage management facilities generally

A sewage management facility:

(a)  must be made of durable and non-corrosive components, each having an expected service life of at least:

(i)  5 years, in the case of a mechanical or electrical component, and

(ii)  15 years, in any other case, and

(b)  must be installed or constructed:

(i)  in accordance with the appropriate specifications and in accordance with good trade practice, and

(ii)  so as to allow ease of access for maintenance, and

(iii)  with regard to the health and safety of users, operators and persons maintaining the facility, and

(c)  must be installed or constructed so as to make appropriate provision for access to and removal of contents in a safe and sanitary manner, and

(d)  must, if it is intended to be a permanent fixture, be anchored to prevent movement.

37   Closets for certain toilet systems

(1)  A human waste storage facility must not be installed in any part of a building unless that part of the building complies with the following requirements:

(a)  it is adequately ventilated to the outside air,

(b)  the walls and roof are of weatherproof material,

(c)  the floor is of material that is impervious to water and is drained.

(2)  The part of the building in which a human waste storage facility (other than a water closet) is permanently installed must be designed and located so as to allow human waste to be removed without being carried through any dwelling-house or public building or any building in which any person may be, or may be intended to be, employed in any manufacture, trade or business.

38   Cesspits

(1)  A cesspit:

(a)  must be deep, dark and fly-proof, and

(b)  must be constructed and maintained so as to prevent both the access of surface waters to it and the escape of matter from it, and

(c)  must not be located where it can possibly pollute any water used or likely to be used for human consumption or for any domestic or dairy purposes, and

(d)  must not be located where the normal level of the ground water is less than one metre below the bottom of the cesspit.

(2)  If a cesspit is emptied, its contents must be disposed of in a sanitary manner and in accordance with any requirements of the council.

39   Mechanical waste treatment devices

(1)  A bag used for the retention of waste in a mechanical device that treats waste by compaction, shredding or other means must be of a kind approved by the council.

(2)  Treated waste kept on premises after treatment other than wholly within the device is to be deposited in a receptacle of a kind approved by the council.

Subdivision 5 Accreditation of sewage management facilities

40   Application of Subdivision

(1)  This Subdivision applies to such models of the following sewage management facilities as are generally available for purchase by retail:

(a)  wet composting closets,

(b)  waterless composting closets,

(c)  septic closets,

(d)  septic tanks,

(e)  holding tanks and collection wells used for the receipt and storage of effluent (other than those intended to be emptied after each use, such as chamber pots),

(f)  waste treatment devices designed to comminute or macerate and discharge sewage to a sewerage system,

(g)  waste treatment devices that receive and treat sewage before discharging effluent to a common effluent drainage scheme,

(h)  waste treatment devices that treat sewage using a specific process to produce biosolids and disinfected effluent to a standard suitable, either separately or in combination, for recycling by surface or sub-surface irrigation or by internal or external household use,

(i)  any other kind of sewage management facility specified in a notice published in the Gazette by the Director-General for the purposes of this clause.

(2)  However, this Subdivision does not apply:

(a)  to a sewage management facility intended to treat:

(i)  sewage of a non-domestic nature, or

(ii)  sewage from premises normally occupied by more than 10 persons, or

(iii)  an average daily flow of sewage exceeding 2,000 litres, or

(b)  to the part of a sewage management facility that consists of a drain connected to the facility, or

(c)  to any other component of a sewage management facility that is specified in a notice published in the Gazette by the Director-General of the Department of Health for the purposes of this clause.

41   Facilities to be accredited

(1)  The council must not approve the installation or construction of a sewage management facility to which this Subdivision applies unless the council is satisfied that the facility is to be installed or constructed to a design or plan that is the subject of a certificate of accreditation from the Director-General of the Department of Health, being a certificate that is in force.

(2)  Subclause (1) does not apply to or in respect of a sewage management facility:

(a)  that is to be installed or constructed as a model for the purposes of testing, or

(b)  that is designed, and is to be constructed, by the owner or occupier of the premises on which it is to be installed, or

(c)  that is designed, by a person other than the owner or occupier of the premises on which it is to be installed, specifically and uniquely for those premises.

Subdivision 6 Approval required to operate system of sewage management

Note. This Regulation does not prescribe the matters that are to accompany an application for approval to operate a system of sewage management. Section 81 of the Act provides that an application for an approval under Part 1 of Chapter 7 of that Act (in which category such an application falls) must be accompanied by “such matters as may be prescribed by the regulations and such matters specified by the council as may be necessary to provide sufficient information to enable the council to determine the application”.

42   Meaning of “operate a system of sewage management”

(1)  In this Subdivision, operate a system of sewage management means hold or process, or re-use or otherwise dispose of, sewage or by-products of sewage (whether or not the sewage is generated on the premises on which the system of sewage management is operated).

(2)  Without limiting subclause (1), operate a system of sewage management includes the following:

(a)  use artificial wetlands, transpiration mounds, trenches, vegetation and the like in related effluent application areas,

(b)  hold or process sewage that is to be subsequently discharged into a public sewer.

(3)  However, operate a system of sewage management does not include any of the following:

(a)  any action relating to the discharge of sewage directly into a public sewer,

(b)  any action relating to sewage or by-products of sewage after their discharge into a public sewer.

43   Matters to be taken into consideration in determining applications for approval to operate system of sewage management

In determining an application for approval to operate a system of sewage management, the council must consider any matter specified in guidelines or directions issued by the Director-General in relation to the environment and health protection matters referred to in clause 29 (2).

Subdivision 7 Operation of system of sewage management

44   Performance standards for operation of system of sewage management

(1)  A system of sewage management must be operated in a manner that achieves the following performance standards:

(a)  the prevention of the spread of disease by micro-organisms,

(b)  the prevention of the spread of foul odours,

(c)  the prevention of contamination of water,

(d)  the prevention of degradation of soil and vegetation,

(e)  the discouragement of insects and vermin,

(f)  ensuring that persons do not come into contact with untreated sewage or effluent (whether treated or not) in their ordinary activities on the premises concerned,

(g)  the minimisation of any adverse impacts on the amenity of the premises and surrounding lands,

(h)  if appropriate, provision for the re-use of resources (including nutrients, organic matter and water).

(2)  Failure to comply with subclause (1) is not a breach of that performance standard if the failure was due to circumstances beyond the control of the person operating the system of sewage management (such as a fire, flood, storm, earthquake, explosion, accident, epidemic or warlike action).

(3)  A system of sewage management must be operated:

(a)  in accordance with the relevant operating specifications and procedures (if any) for the sewage management facilities used for the purpose, and

(b)  so as to allow the removal of any treated sewage (and any by-product of any sewage) in a safe and sanitary manner.

45   Further condition of approval in relation to operation of system of sewage management

(1)  It is a condition of an approval to operate a system of sewage management that this clause is complied with.

(2)  The sewage management facilities used in the operation of the system must be maintained in a sanitary condition and must be operated in accordance with the relevant requirements of this Regulation.

(3)  A sewage management facility used in the operation of the system must not discharge into any watercourse or onto any land other than its related effluent application area.

(4)  The conditions (if any) of any certificate of accreditation issued by the Director-General of the Department of Health under this Subdivision in respect of the plans or designs for any components of the sewage management facilities must be complied with.

(5)  The person operating the system of sewage management must provide details of the way in which it is operated, and evidence of compliance with the relevant requirements of this Regulation and of the conditions of the approval, whenever the council reasonably requires the person to do so.

46   Approval to operate system of sewage management extends to concurrent owners and occupiers

If an owner or occupier of land is the holder of an approval to operate a system of sewage management on the land (being an approval that is in force), any other owner or occupier of that land may operate the system of sewage management (without obtaining a further approval) in accordance with the conditions of the approval.

47   Temporary exemption for purchaser of land

(1)  Despite the other provisions of this Regulation, a person who purchases (or otherwise acquires) land on which any sewage management facilities are installed or constructed may operate a system of sewage management without the approval required under section 68 of the Act for the period of 3 months after the date on which the land is transferred or otherwise conveyed to the person (whether or not an approval is in force, as at that date, in relation to the operation of a system of sewage management on that land).

(2)  Further, if the person duly applies, within the period of 2 months after the date on which the land is transferred or otherwise conveyed to the person, for approval to operate the system of sewage management concerned, the person may continue to operate that system of sewage management without approval until the application is finally determined.

Subdivision 8 Exemptions

48   Activities for which approval is not required

The following activities may be carried out without the prior approval of the council subject to such conditions as are specified:

(a)  Transport waste
The transporting of waste over or under a public place for fee or reward if:

(i)  the activity is licensed under the Protection of the Environment Operations Act 1997, or

(ii)  the activity is being carried out in the Sydney metropolitan area as defined in Part 3 (Interpretative provisions) of Schedule 1 to that Act, or

(iii)  the waste is being transported through the area of the council and is not being collected or deposited in that area.

Note. A person who transports waste for fee or reward in circumstances that do not require a pollution control licence issued by the Environment Protection Authority must comply with the relevant requirements of the Regulations made under the Protection of the Environment Operations Act 1997.

(b)  Place waste in a public place
The placing of waste in a public place, if it is done in accordance with arrangements instituted by the council.

(c)  Discharge of domestic sewage into sewer
The discharge of sewage of a domestic nature into a sewer of the council, if it is done in accordance with arrangements instituted by the council.

(d)  Dispose of effluent into sewer
The disposal of septic tank effluent into a sewer of the council, if the premises are within a Common Effluent Drainage District declared by the council.

(e)  Install, construct or alter a waste treatment device
The installation, construction or alteration of a waste treatment device, if that installation, construction or alteration is done:

(i)  under the authority of a licence in force under the Protection of the Environment Operations Act 1997, or

(ii)  in a vessel used for navigation, or

(iii)  in a motor vehicle registered under the Road Transport (Vehicle Registration) Act 1997 that is used primarily for road transport.

(f)  Operate a system of sewage management
So much of the operation of a system of sewage management as is limited to an action carried out:

(i)  under the authority of a licence in force under the Protection of the Environment Operations Act 1997, or

(ii)  in a vessel used for navigation, or

(iii)  in a motor vehicle registered under the Road Transport (Vehicle Registration) Act 1997 that is used primarily for road transport.

(g)  Activities authorised by licence under Water Industry Competition Act 2006
An activity referred to in Part B or C of the Table to section 68 of the Act if it is carried out under the authority of a licence in force under the Water Industry Competition Act 2006.

Division 5 Approvals relating to activities on community land and public roads and other activities

Subdivision 1 Community land

49   Approval for the use of loudspeaker or amplifying device on community land not required in certain circumstances

A loudspeaker or sound amplifying device may be set up, operated or used on community land without the prior approval of the council if it is done in accordance with a notice erected on the land by the council or if it is done in the circumstances specified, in relation to the setting up, operation or use (as the case may be), in Part 1 of the local approvals policy applying to the land.

Subdivision 2 Public roads

50   Matters for consideration by council in determining whether to approve applications relating to public roads

In determining an application for an approval under Part E of the Table to section 68 of the Act the council must take into account:

(a)  the provisions of the Roads Act 1993, and

(b)  any relevant standards and policies of public authorities applying to the use of the road.

51   Compliance with standards—approvals relating to public roads

It is a condition of an approval referred to in Part E of the Table to section 68 of the Act that the activity approved, and any building or work associated with or carried out in connection with the activity, complies with any applicable standards established by this Regulation or by any regulation in force under the Act or the Environmental Planning and Assessment Act 1979.

Subdivision 3 Public car parks

52   Matters to accompany applications relating to the operation of a public car park

An application to operate a public car park must be accompanied by the following:

(a)  3 copies of a plan that sufficiently identifies the land concerned and the streets to which the land has frontage and, if the car park comprises the whole or part of a building, describes the building, its location on the site and any other purpose for which it is to be used,

(b)  details of the number of vehicles proposed to be accommodated in the car park and the manner in which this is to be done,

(c)  details of the means or proposed means of entry to or exit from the car park and as to the method of movement within the car park,

(d)  details of the off-street parking facilities available for the temporary accommodation of vehicles awaiting access to the car park,

(e)  details of ventilation to be provided if it is a building,

(f)  details of any petrol or oil or any motor service facilities to be provided in the car park,

(g)  details of the proposed hours of operation of the car park and as to the method or proposed method of receiving the fee or charge and the location or proposed location of any facility for receiving the fee or charge.

53   Matters to be taken into consideration by council in determining whether to approve the operation of a public car park

In determining an application for approval to operate a public car park the council is to take the following matters into consideration:

(a)  the Roads and Traffic Authority’s views about the application,

(b)  the effect of the car park on the movement of vehicular traffic and pedestrian traffic,

(c)  whether the number of vehicles proposed to be accommodated is appropriate having regard to the size of the car park and the need to provide off-street parking facilities within the car park for the temporary accommodation of vehicles,

(d)  whether the means of ingress and egress and means of movement provided or to be provided within the car park are satisfactory,

(e)  whether there will be adequate provision for pedestrian safety and access for people with disabilities,

(f)  whether the internal design of parking facilities and system of traffic management are satisfactory,

(g)  whether, in the case of a car park that is a building, adequate ventilation is provided or to be provided,

(h)  the Occupational Health and Safety Act 2000, and the regulations made under that Act, as regards the safety of persons who will be employed at the proposed car park or of persons who will go there,

(i)  whether there will be adequate provision for the management of stormwater and the minimisation of stormwater pollution.

54   Standards to be met for approval

The council must not grant an application for an approval to operate a public car park unless it is satisfied that the activity as proposed to be carried out will comply with any applicable standards established by this Regulation or by or under the Act.

55   Compliance with standards

It is a condition of an approval to operate a public car park that the activity approved, and any building or work associated with or carried out in connection with the activity, complies with any applicable standards established by this Regulation or by any regulation in force under the Act or the Environmental Planning and Assessment Act 1979.

56   Number of vehicles

The council may, as a condition of an approval to operate a public car park, specify the maximum number of vehicles that may be parked at any one time.

57   Entries, exits and driveways

(1)  Vehicles must not enter and leave a public car park through the one driveway. Vehicles must not enter or leave a public car park except through the entrance or exit openings provided.

(2)  Entrances, exits and driveways are to be provided and arranged, maintained and operated so as to facilitate the orderly entrance and exit of vehicles.

(3)  Exits must not be blocked by gates and other obstacles while the car park is open to the public.

58   Surfaces

All traffic ramps, parking spaces, entrances, exits, driveways and holding areas are to be surfaced with material approved by the council.

59   Fencing

Land used as a public car park must be fenced to a height determined by the council and with materials approved by the council.

60   Lighting

A public car park is, while open to the public, to be lit to the satisfaction of the council.

61   Vehicles

A vehicle is not to be permitted to park in a public car park unless any petrol tank on the vehicle is fitted with a turn cap or seal that is kept closed except when opened for the purpose of refuelling.

62   Fire extinguishers

A public car park must be provided with a sufficient number of fire extinguishers. The fire extinguishers must be emptied and recharged every 6 months.

63   Speed limit

Notices must be displayed in a public car park directing that vehicles are to be driven at a speed not greater than 8 kilometres per hour.

64   Obstruction of roads

A public road must not be used for the purpose of holding or marshalling vehicles in connection with a public car park.

65   Concurrence required for operation of public car park

The council must not grant an application for approval to operate a public car park except with the concurrence of the Roads and Traffic Authority, given having regard to its functions under the road transport legislation (within the meaning of the Road Transport (General) Act 1999 or, after the repeal of that Act, the Road Transport (General) Act 2005) and the Roads Act 1993. The Authority may give concurrence subject to conditions.

66   Approval for operation of public car park not required in certain circumstances

(1)  A public car park may be operated without the prior approval of the council if approval for its erection or operation has already been given by the council in connection with another approval or development consent and the car park complies with any applicable conditions of that approval or development consent.

(2)  In this clause, development consent has the same meaning as it has in the Environmental Planning and Assessment Act 1979.

Subdivision 4 Domestic oil or solid fuel heating appliances

67   Standards to be met for approval

The council must not grant an application for an approval to install a domestic oil or solid fuel heating appliance (other than a portable appliance) unless it is satisfied that the activity as proposed to be carried out will comply with any applicable standards established by this Regulation or by or under the Act.

68   Compliance with standards

It is a condition of an approval to install a domestic oil or solid fuel heating appliance (other than a portable appliance) that the activity approved, and any building or work associated with or carried out in connection with the activity, complies with any applicable standards established by this Regulation or by or under the Act.

69   Adoption of Building Code of Australia

(1)  All matters relating to the installation of a domestic oil or solid fuel heating appliance (other than a portable appliance) are to be governed by the applicable provisions of the Building Code of Australia.

(2)  In this clause:

Building Code of Australia has the same meaning as it has in the Environmental Planning and Assessment Act 1979.

(3)  For the purposes of this clause:

(a)  a reference in the Building Code of Australia to the appropriate authority is a reference to the relevant authority exercising approval powers under the Act, and

(b)  the reference in the Building Code of Australia in the definition of Certificate of Accreditation to a State or Territory accreditation authority is a reference to the Director-General when exercising his or her functions under Division 5 of Part 1 of Chapter 7 (sections 120–123B) of the Act.

70   Approval for installation of domestic oil or solid fuel heating appliance not required in certain circumstances

A domestic oil or solid fuel heating appliance (other than a portable appliance) may be installed without the prior approval of the council if details of the appliance are included in plans and specifications for the relevant building approved under Part 4A of the Environmental Planning and Assessment Act 1979.

Subdivision 5 Amusement devices

71   Activities for which approval is not required

Amusement devices not required to be registered under the Occupational Health and Safety Regulation 2001 may be installed or operated without the prior approval of the council.

Note. See the Table to clause 113 of the Occupational Health and Safety Regulation 2001 for the items of plant that are required to be registered.

72   Standards to be met for approval

The council must not grant an application for an approval to install or operate an amusement device unless it is satisfied:

(a)  that the ground or other surface on which the device is to be or has been erected is sufficiently firm to sustain the device while it is in operation and is not dangerous because of its slope or irregularity or for any other reason, and

(b)  that the device is registered under the Occupational Health and Safety Regulation 2001, and

(c)  that the device is to be or has been erected in accordance with all conditions (if any) relating to its erection set out in the current certificate of registration issued for the device under that Regulation, and

(d)  that there exists for the device a current log book within the meaning of Chapter 5 of that Regulation, and

(e)  that there is in force a contract of insurance or indemnity for the device that complies with clause 74.

73   Compliance with standards

It is a condition of an approval to install or operate an amusement device, that the activity approved, and any building or work associated with or carried out in connection with the activity, complies with the following standards:

(a)  the ground or other surface on which the device is to be or has been erected is sufficiently firm to sustain the device while it is in operation and is not dangerous because of its slope or irregularity or for any other reason,

(b)  the device is registered under the Occupational Health and Safety Regulation 2001,

(c)  all conditions (if any) subject to which the device is so registered and all relevant requirements of that Regulation are complied with,

(d)  the device is installed (including erected) and operated in a safe manner.

74   Insurance

It is a condition of an approval to install or operate an amusement device that there must be in force a contract of insurance or indemnity that indemnifies to an unlimited extent (or up to an amount of not less than $10,000,000 in respect of each accident) each person who would be liable for damages for death or personal injury arising out of the operation or use of the device and any total or partial failure or collapse of the device against that liability.

75   Approval for installation or operation of small amusement devices not required in certain circumstances

(1)  In this clause, small amusement device means an amusement device that is designed primarily for the use of children 12 years of age or under and includes such amusement devices as mini-Ferris wheels, battery operated cars and miniature railways but, in the case of rotating amusement devices, includes only those devices that have a maximum rotation of 14 revolutions per minute.

(2)  A small amusement device may be installed or operated without the prior approval of the council if:

(a)  the ground or other surface on which the device is to be or has been erected is sufficiently firm to sustain the device while it is in operation and is not dangerous because of its slope or irregularity or for any other reason, and

(b)  the device is registered under the Occupational Health and Safety Regulation 2001, and

(c)  the device:

(i)  is to be or has been erected, and

(ii)  it to be or is being operated,

      in accordance with all conditions (if any) relating to its erection or operation set out in the current certificate of registration issued for the device under that Regulation, and

(d)  there exists for the device a current log book within the meaning of Chapter 5 of that Regulation, and

(e)  in the case of a device that is to be or is installed in a building, fire egress is not obstructed, and

(f)  there is in force a contract of insurance or indemnity for the device that complies with clause 74.

Subdivision 6 Domestic greywater diversion

75A   Approval required for domestic greywater diversion

(1)  For the purposes of item 10 of Part F of the Table to section 68 of the Act, domestic greywater diversion is prescribed as an activity that requires the prior approval of the council.

(2)  However, domestic greywater diversion may be carried out without the prior approval of the council if:

(a)  it is carried out in accordance with the Plumbing Code of Australia, and

(b)  a sewage management facility is not installed on the premises concerned, and

(c)  the following performance standards are achieved:

(i)  the prevention of the spread of disease by micro-organisms,

(ii)  the prevention of the spread of foul odours,

(iii)  the prevention of contamination of water,

(iv)  the prevention of degradation of soil and vegetation,

(v)  the discouragement of insects and vermin,

(vi)  ensuring that persons do not come into contact with untreated sewage or effluent (whether treated or not) in their ordinary activities on the premises concerned,

(vii)  the minimisation of any adverse impacts on the amenity of the premises concerned and surrounding lands.

(3)  Failure to comply with subclause (2) (c) is not a breach of that performance standard if the failure was due to circumstances beyond the control of the person carrying out the domestic greywater diversion.

(4)  In this clause:

domestic greywater diversion means the installation and operation of a system for diverting greywater generated on residential premises to a garden or lawn on those premises, but does not include the manual collection and re-use of greywater (for example, by means of a bucket or similar receptacle).

greywater means waste water from washing machines, laundry tubs, showers, hand basins and baths, but does not include waste water from a kitchen, toilet, urinal or bidet.

residential premises does not include premises comprising more than one dwelling.

Division 6 Miscellaneous

76   Form of application for accreditation of components, processes, designs or temporary structures

For the purposes of Division 5 of Part 1 of Chapter 7 of the Act, an application for the accreditation of a component, process, design or temporary structure must:

(a)  be in writing, and

(b)  include a description of the component, process, design or temporary structure to which it relates, and

(c)  be accompanied by a copy of a certificate of accreditation issued by the Building Regulations Advisory Committee (within the meaning of the Building Act 1993 of Victoria), if it is so accredited, or if it is not, documentary evidence of any test procedures, results, performances or appraisals relevant to the proposed accreditation that have been obtained from a recognised appraisal body.

77   Public notice of draft local approvals policies

The public notice required to be given by the council under section 160 (1) of the Act must:

(a)  be published in at least one local newspaper circulating at least once weekly in the area, and

(b)  be so published on at least 2 separate occasions, the first occasion being not more than 7 days before the commencement of the public exhibition of the draft local policy and the second occasion being at least 7 days but not more than 14 days before the conclusion of the period during which submissions may be made to the council in relation to the policy.

78   Public notice of approval

(1)  For the purposes of section 675 of the Act, the prescribed manner of giving public notice of the granting of an approval is to publish the notice in at least one local newspaper circulating at least once weekly in the area of the council.

(2)  For the purposes of section 675 of the Act, the prescribed form of public notice of the granting of an approval is a form that includes:

(a)  a precise indication of the location of any place in relation to which the approval is granted (for example, the address of the place and any other description to help a reader identify the place) and a brief description of the subject-matter of the approval, and

(b)  a statement to the effect that a record of the approval is available for inspection, without charge, at the office of the council during its ordinary office hours.

79   Matters to be submitted to council

If this Regulation requires evidence or a document to be submitted to council, any copy of the evidence or document is to be a complete and unabridged copy of the original.

80   Application may be made for approval for exempted activity

A person may apply for approval under the Act for the carrying out of an activity, and the application may be determined, even though the person is exempted from the necessity to obtain approval by a local approvals policy.

81   Local approvals policies—standards

(1)  If a person is exempt (because of a local approvals policy) from the requirement to obtain approval for an activity, the exemption is subject to the condition that the activity comply with the standards referred to in clauses 31, 44, 51, 55, 68 and 73.

(2)  However, the activity must so comply only to the extent that the provisions (and the standards to which they refer) would apply to the activity if the activity had not been the subject of an exemption under the local approvals policy.

(3)  However, if the local approvals policy specifies, as the circumstances (or as part of the circumstances) for the exemption, that the activity is carried out in such part of an area, or such an area, as is specified in the policy, subclauses (1) and (2) do not apply to the activity.

(4)  Subclause (3) does not prevent a local approvals policy from specifying compliance with one or more of the standards referred to in subclause (1) as part of the circumstances for an exemption under section 158 (3) of the Act.

Part 3 Orders

Note. In this Part, a reference to an Order of a particular number is a reference to the Order of that number set out in the Table to section 124 of the Act.

Division 1 Orders requiring or prohibiting the doing of things to or on premises

82   Relevant standards for camping grounds, caravan parks, manufactured home estates and moveable dwellings

For the purposes of:

(a)  Order No 5 (a) in its operation as to camping grounds, caravan parks and manufactured home estates, and

(b)  Order No 5 (b) in its operation as to moveable dwellings,

any applicable standards referred to in the Local Government (Manufactured Home Estates, Caravan Parks, Camping Grounds and Moveable Dwellings) Regulation 2005 are relevant standards referred to in Columns 1 and 2 of the Table to section 124 of the Act.

Note. An Order can be made requiring compliance with these standards if they are not being complied with.

83   Relevant standards for certain places of shared accommodation

(1)  This clause applies to the following kinds of places of shared accommodation:

(a)  places of shared accommodation that are class 3 buildings under the Building Code of Australia (within the meaning of the Environmental Planning and Assessment Act 1979),

(b)  places of shared accommodation that are general boarding houses within the meaning of the Boarding Houses Act 2012.

(2)  For the purposes of Order No 5 (d) in its operation as to places of shared accommodation to which this clause applies, the standards for places of shared accommodation set out in Part 1 of Schedule 2 are relevant standards referred to in Columns 1 and 2 of the Table to section 124 of the Act.

Note. An Order can be made requiring compliance with these standards if they are not being complied with.

84   Relevant standards for hairdressers shops

For the purposes of Order No 5 (e), the standards for hairdressers shops set out in Part 2 of Schedule 2 are relevant standards referred to in Columns 1 and 2 of the Table to section 124 of the Act.

Note. An Order can be made requiring compliance with these standards if they are not being complied with.

85   Relevant standards for beauty salons

For the purposes of Order No 5 (e), the standards for beauty salons set out in Part 3 of Schedule 2 are relevant standards referred to in Columns 1 and 2 of the Table to section 124 of the Act.

Note. An Order can be made requiring compliance with these standards if they are not being complied with.

86   Relevant standards for mortuaries

For the purposes of Order No 5 (f), the standards for mortuaries set out in Part 4 of Schedule 2 are relevant standards referred to in Columns 1 and 2 of the Table to section 124 of the Act.

Note. An Order can be made requiring compliance with these standards if they are not being complied with.

87   Water supply and sewerage system pipes, fittings and fixtures

(1)  Without limiting Order No 5 (h), and except in the case of a defect to which clause 88 applies, the following acts are taken to be included in Column 1 of the Table to section 124 of the Act as acts that may be required by that Order:

(a)  to remove, replace, alter, extend or repair a pipe, fitting or fixture located on premises connected to the council’s water supply system or sewerage system,

(b)  to stop using such a pipe, fitting or fixture pending its removal, replacement, alteration, extension or repair.

(2)  This clause applies only in relation to work that is not plumbing and drainage work within the meaning of the Plumbing and Drainage Act 2011.

88   Rectification of defective water supply or sewerage work

(1)  For the purposes of Order No 5 (h) (and without limiting that Order) in the case of an Order to a licensed contractor under Column 3 of the Table to section 124 of the Act in respect of a defect, the circumstances specified in Column 2 are taken to be included in that Column only where the council notifies the contractor of the defect after the date of issue by the contractor of a certificate to the effect that the work has been carried out as required by the Act and the Environmental Planning and Assessment Act 1979.

(2)  A licensed contractor so notified must bear the cost of rectifying the defect.

(3)  A circumstance in which the defective work is the subject of an order made by the Consumer, Trader and Tenancy Tribunal under the Home Building Act 1989 constitutes a circumstance that is taken to be excluded from the circumstances specified in Column 2 of the Table to section 124 of the Act as circumstances in which Order No 5 (h) can be made.

(4)  An Order given by a council in respect of any such defective work ceases to have effect if an order referred to in subclause (3) is made in respect of the defective work.

(5)  This clause applies only in relation to work that is not plumbing and drainage work within the meaning of the Plumbing and Drainage Act 2011.

89   Flow of surface water across land

(1)  Without limiting Order No 12, the repair of defective or insufficient roofing, guttering, downpiping or drainage is taken to be included in Column 1 of the Table to section 124 of the Act as an act that may be required by that Order.

(2)  Without limiting Order No 12, the circumstance in which the surface water is turbid or otherwise polluted and is flowing across the land boundary constitutes a circumstance that is taken to be included in the circumstances specified in Column 2 of the Table to section 124 of the Act as circumstances in which Order No 12 may be made.

Division 2 Orders requiring that premises be used or not used in specified ways

90   Septic tank or closet

Without limiting Order No 15, a circumstance in which a septic tank or a septic closet is being constructed, or used, on premises after the date specified (in Order No 24 served on the owner or occupier of the premises) as the date by which the premises were required to be connected with a sewerage system constitutes a circumstance that is taken to be included in the circumstances specified in Column 2 of the Table to section 124 of the Act as circumstances in which Order No 15 may be made.

91   Keeping of birds or animals

Without limiting Order No 18, failure to comply with relevant standards or requirements set or made by or under the Act constitutes a circumstance that is taken to be included in the circumstances specified in Column 2 of the Table to section 124 of the Act as circumstances in which Order No 18 may be made.

92   Relevant standards for keeping of birds or animals

For the purposes of Order No 18, the standards for the keeping of birds or animals set out in Part 5 of Schedule 2 are relevant standards referred to in Column 2 of the Table to section 124 of the Act.

Note. An Order can be made requiring compliance with these standards if they are not being complied with.

Division 3 Orders requiring the preservation of healthy conditions

93   Water carting vehicles

Without limiting Order No 20, the following circumstances are taken to be included in the circumstances specified in Column 2 of the Table to section 124 of the Act as circumstances in which that Order may be made:

(a)  a vessel used on a vehicle to cart water does not have an aperture that is large enough to enable easy inspection of the interior or thorough cleaning of the interior,

(b)  the cover of any such aperture is not of a kind that is able to be kept thoroughly clean.

94   Disposal of certain waste

For the purposes of Order No 22, and without limiting that Order, failure to comply with the standards for the disposal of certain waste set out in Part 6 of Schedule 2 is taken to be a circumstance in which waste is not being dealt with satisfactorily.

95   Connection of premises to council’s water supply

Without limiting Order No 23 in the Table to section 124 of the Act, the following acts are taken to be included in Column 1 of that Table as acts that may be required by that Order:

(a)  the construction of all necessary pipes, and the installation of all necessary fixtures and fittings,

(b)  the construction or installation of a separate service pipe to the premises, or to each of the premises concerned.

96   Connection of premises to a sewerage system

(1)  Without limiting Order No 24 in the Table to section 124 of the Act, the following acts are taken to be included in Column 1 of that Table as acts that may be required by that Order:

(a)  the construction of all necessary pipes, and the installation of all necessary fixtures and fittings,

(b)  the construction or installation of a separate service pipe to the premises, or to each of the premises concerned.

(2)  The circumstances specified in Column 2 of the Table to section 124 of the Act in relation to Order No 24 of the Table are taken to include the following:

The sewerage system of a public authority or a State owned corporation is available and the premises can be connected to the system by gravity, pumping or other means considered by the council to be suitable. This applies to all areas in which a public authority or a State owned corporation maintains a sewerage system.

Division 4 Miscellaneous

97   Copies of certain orders to be provided to EPA

(1)  If a council gives Order No 11, 12, 18, 21, 22 or 25 in respect of land or premises and the land or the land on which the premises are situated is subject to statutory contaminated land management, the council must provide the EPA with a copy of the Order and of any modification or revocation of it.

(2)  Failure to provide the EPA with a copy does not invalidate an Order, modification or revocation.

(3)  In this clause:

EPA means the Environment Protection Authority constituted by the Protection of the Environment Administration Act 1991.

statutory contaminated land management means that one or more of the following matters under the Contaminated Land Management Act 1997 apply in relation to the land:

(a)  the land is significantly contaminated land within the meaning of that Act and the council has been notified under section 59 of that Act that the land is significantly contaminated land,

(b)  a management order is in force under Part 3 of that Act and the council has been notified under section 59 of that Act that the order is in force,

(c)  an approved voluntary management proposal applies to the land under section 17 of that Act and the council has been notified under section 59 of that Act that the proposal has been approved,

(d)  an ongoing maintenance order has effect under section 28 of that Act and the council has been notified under section 59 of that Act that the order has effect,

(e)  a restriction on the use of the land or a public positive covenant has been imposed by the EPA on the land under section 29 of that Act.

Note. Section 7 (2) of the Protection of the Environment Operations Act 1997 provides for that Act to prevail over any other Act or statutory rule to the extent of any inconsistency and for a regulation under that Act to prevail over any other statutory rule to the extent of any inconsistency.

Section 109 of the Contaminated Land Management Act 1997 provides that the exercise of functions under other Acts must not be inconsistent with the functions of the EPA or other public authority under that Act.

98   Standards for water supply, sewerage or stormwater drainage work

An Order under section 124 of the Act requiring water supply, sewerage or stormwater drainage work to be carried out is not complied with unless the work is carried out in accordance with any applicable standards or requirements set out or referred to in Part 2 of this Regulation or the Order.

99   Information to be included in Orders

As well as the matters required by sections 136, 137 and 138 of the Act, the following information is to be included in an Order given by a council:

(a)  any relevant provision of the Act, local orders policy or regulations made under the Act that is not being or has not been complied with,

(b)  that it is an offence not to comply with an Order and the maximum penalty for the offence,

(c)  that, if the Order is not complied with, the council may give effect to the Order and recover the costs of doing so from the person concerned.

Note. Section 193 of the Act requires the council to give the owner or occupier of premises written notice before a person authorised to enter premises under Part 2 of Chapter 8 of the Act does so.

100   Public notice of local orders policy

The public notice required to be given by the council under section 160 (1) of the Act must:

(a)  be published in at least one local newspaper circulating at least once weekly in the area, and

(b)  be so published on at least 2 separate occasions, the first occasion being not more than 7 days before the commencement of the public exhibition of the draft local policy and the second occasion being at least 7 days but not more than 14 days before the conclusion of the period during which submissions may be made to the council in relation to the policy.

Part 4 Community land

Division 1 Guidelines for the categorisation of community land

101   Application of this Division

(1)  This Division sets out guidelines for the categorisation of community land.

(2)  A council that is preparing a draft plan of management under section 36 of the Act must have regard to the guidelines set out in this Division.

102   Guidelines for categorisation of land as a natural area

Land should be categorised as a natural area under section 36 (4) of the Act if the land, whether or not in an undisturbed state, possesses a significant geological feature, geomorphological feature, landform, representative system or other natural feature or attribute that would be sufficient to further categorise the land as bushland, wetland, escarpment, watercourse or foreshore under section 36 (5) of the Act.

Note. Section 36A of the Act provides that community land that has been declared a critical habitat under the Threatened Species Conservation Act 1995 or the Fisheries Management Act 1994 must be categorised as a natural area.

Section 36B of the Act provides that community land all or part of which is directly affected by a recovery plan or threat abatement plan under the Threatened Species Conservation Act 1995 or the Fisheries Management Act 1994 must be categorised as a natural area.

Section 36C of the Act provides that community land that is the site of a known natural, geological, geomorphological, scenic or other feature that is considered by the council to warrant protection or special management considerations, or that is the site of a wildlife corridor, must be categorised as a natural area.

103   Guidelines for categorisation of land as a sportsground

Land should be categorised as a sportsground under section 36 (4) of the Act if the land is used or proposed to be used primarily for active recreation involving organised sports or the playing of outdoor games.

104   Guidelines for categorisation of land as a park

Land should be categorised as a park under section 36 (4) of the Act if the land is, or is proposed to be, improved by landscaping, gardens or the provision of non-sporting equipment and facilities, for use mainly for passive or active recreational, social, educational and cultural pursuits that do not unduly intrude on the peaceful enjoyment of the land by others.

105   Guidelines for categorisation of land as an area of cultural significance

Land should be categorised as an area of cultural significance under section 36 (4) of the Act if the land is:

(a)  an area of Aboriginal significance, because the land:

(i)  has been declared an Aboriginal place under section 84 of the National Parks and Wildlife Act 1974, or

(ii)  whether or not in an undisturbed state, is significant to Aboriginal people in terms of their traditional or contemporary cultures, or

(iii)  is of significance or interest because of Aboriginal associations, or

(iv)  displays physical evidence of Aboriginal occupation (for example, items or artifacts such as stone tools, weapons, engraving sites, sacred trees, sharpening grooves or other deposits, and objects or materials that relate to the settlement of the land or place), or

(v)  is associated with Aboriginal stories, or

(vi)  contains heritage items dating after European settlement that help to explain the relationship between Aboriginal people and later settlers, or

(b)  an area of aesthetic significance, by virtue of:

(i)  having strong visual or sensory appeal or cohesion, or

(ii)  including a significant landmark, or

(iii)  having creative or technical qualities, such as architectural excellence, or

(c)  an area of archaeological significance, because the area contains:

(i)  evidence of past human activity (for example, below-ground features such as building foundations, occupation deposits, features or artifacts or above-ground features such as buildings, works, industrial structures, and relics, whether intact or ruined), or

(ii)  any other deposit, object or material that relates to the settlement of the land, or

(d)  an area of historical significance, because of the importance of an association or position of the land in the evolving pattern of Australian cultural history, or

(e)  an area of technical or research significance, because of the area’s contribution to an understanding of Australia’s cultural history or environment, or

(f)  an area of social significance, because of the area’s association with Aboriginal life after 1788 or the area’s association with a contemporary community for social, spiritual or other reasons.

106   Guidelines for categorisation of land as general community use

Land should be categorised as general community use under section 36 (4) of the Act if the land:

(a)  may be made available for use for any purpose for which community land may be used, whether by the public at large or by specific sections of the public, and

(b)  is not required to be categorised as a natural area under section 36A, 36B or 36C of the Act and does not satisfy the guidelines under clauses 102–105 for categorisation as a natural area, a sportsground, a park or an area of cultural significance.

107   Guidelines for categorisation of land as bushland

(1)  Land that is categorised as a natural area should be further categorised as bushland under section 36 (5) of the Act if the land contains primarily native vegetation and that vegetation:

(a)  is the natural vegetation or a remainder of the natural vegetation of the land, or

(b)  although not the natural vegetation of the land, is still representative of the structure or floristics, or structure and floristics, of the natural vegetation in the locality.

(2)  Such land includes:

(a)  bushland that is mostly undisturbed with a good mix of tree ages, and natural regeneration, where the understorey is comprised of native grasses and herbs or native shrubs, and that contains a range of habitats for native fauna (such as logs, shrubs, tree hollows and leaf litter), or

(b)  moderately disturbed bushland with some regeneration of trees and shrubs, where there may be a regrowth area with trees of even age, where native shrubs and grasses are present in the understorey even though there may be some weed invasion, or

(c)  highly disturbed bushland where the native understorey has been removed, where there may be significant weed invasion and where dead and dying trees are present, where there is no natural regeneration of trees or shrubs, but where the land is still capable of being rehabilitated.

108   Guidelines for categorisation of land as wetland

Land that is categorised as a natural area should be further categorised as wetland under section 36 (5) of the Act if the land includes marshes, mangroves, backwaters, billabongs, swamps, sedgelands, wet meadows or wet heathlands that form a waterbody that is inundated cyclically, intermittently or permanently with fresh, brackish or salt water, whether slow moving or stationary.

109   Guidelines for categorisation of land as an escarpment

Land that is categorised as a natural area should be further categorised as an escarpment under section 36 (5) of the Act if:

(a)  the land includes such features as a long cliff-like ridge or rock, and

(b)  the land includes significant or unusual geological, geomorphological or scenic qualities.

110   Guidelines for categorisation of land as a watercourse

Land that is categorised as a natural area should be further categorised as a watercourse under section 36 (5) of the Act if the land includes:

(a)  any stream of water, whether perennial or intermittent, flowing in a natural channel, or in a natural channel that has been artificially improved, or in an artificial channel that has changed the course of the stream of water, and any other stream of water into or from which the stream of water flows, and

(b)  associated riparian land or vegetation, including land that is protected land for the purposes of the Rivers and Foreshores Improvement Act 1948 or State protected land identified in an order under section 7 of the Native Vegetation Conservation Act 1997.

111   Guidelines for categorisation of land as foreshore

Land that is categorised as a natural area should be further categorised as foreshore under section 36 (5) of the Act if the land is situated on the water’s edge and forms a transition zone between the aquatic and terrestrial environment.

Division 2 Preparation and adoption of draft plans of management for community land

112   Consultation concerning categorisation of land as an area of cultural significance

(1)  A council that is considering whether or not land is an area of Aboriginal significance (within the meaning of clause 105 (a)) must give notice of that consideration to Aboriginal people traditionally associated with the area in which the land is situated.

(2)  That notice must be given by:

(a)  giving written notice to the following:

(i)  the Local Aboriginal Land Council for the area concerned,

(ii)  New South Wales Native Title Services Limited (ACN 098 971 209),

(iii)  the Registrar appointed under the Aboriginal Land Rights Act 1983,

(iv)  the Director-General of the Department of Aboriginal Affairs,

(v)  the Director-General of the Department of Environment and Conservation, and

(b)  placing an advertisement in a newspaper circulating across the State that is primarily concerned with issues of interest to Aboriginal people, and

(c)  placing a written notice on the land in a position where the notice is visible to any person on adjacent public land.

(3)  The notice:

(a)  must state that submissions may be made to the council, in relation to the council’s consideration, by any Aboriginal person traditionally associated with the area in which the community land is situated, and

(b)  must specify a period of not less than 28 days after the date on which the notice is given during which submissions may be made to the council.

(4)  A council that is considering whether or not land is an area of Aboriginal significance (within the meaning of clause 105 (a)) must not make a final determination on that matter unless the council has considered any submissions made under this clause by Aboriginal people traditionally associated with the area in which the community land is situated.

(5)  A council must not prepare a draft plan of management that categorises community land as an area of cultural significance on the ground that the land is an area of Aboriginal significance (within the meaning of clause 105 (a)) unless the council has called for and considered any submissions made under this clause by Aboriginal people traditionally associated with the area in which the community land is situated.

113   Preparation of draft plan of management where land is categorised in more than one category

A draft plan of management that categorises an area of community land, or parts of an area of community land, in more than one category must clearly identify the land or parts of the land and the separate categories (by a map or otherwise).

114   Adoption of draft plan of management in relation to which certain submissions have been made

(1)  This clause applies if:

(a)  a council prepares a draft plan of management, and

(b)  the council receives any submission, made in accordance with the Act, concerning that draft plan that makes any objection to a categorisation of land under the draft plan, and

(c)  the council adopts the plan of management without amending the categorisation that gave rise to the objection.

(2)  If this clause applies, the resolution by which the council adopts the plan of management must state the council’s reasons for categorising the relevant land in the manner that gave rise to the objection.

115   Application of amendments made by Local Government Amendment Act 2000 to draft plans of management

The amendments made to sections 40 and 40A of the Act by Schedule 3 [4]–[6] to the Local Government Amendment Act 2000 do not apply to proposed plans of management amended or adopted after the commencement of those amendments that had been placed on exhibition before the commencement of the amendments.

Division 3 Other matters

116   Leases, licences and other estates in respect of community land

(1)  For the purposes of section 46 (1) (b) (iii) of the Act, the use or occupation of community land for the following events is prescribed as a purpose in respect of which a council may grant a licence in respect of community land on a short-term, casual basis:

(a)  the playing of a musical instrument, or singing, for fee or reward,

(b)  engaging in a trade or business,

(c)  the playing of a lawful game or sport,

(d)  the delivery of a public address,

(e)  commercial photographic sessions,

(f)  picnics and private celebrations such as weddings and family gatherings,

(g)  filming sessions,

(h)  the agistment of stock.

(2)  However, the use or occupation of community land for events listed in subclause (1) is prescribed only if the use or occupation does not involve the erection of any building or structure of a permanent nature.

(3)  For the purposes of section 46 (1) (b) (iii) of the Act, the use of any existing road or fire trail on community land:

(a)  to transport building materials and equipment required in relation to building work that is to be, or is being, carried out on land adjoining the community land, or

(b)  to remove waste that is consequential on such work,

      is prescribed as a short-term, casual purpose.

(4)  For the purposes of section 46 (1) (b) (iii) of the Act, the use of any community land that does not have an existing road or fire trail:

(a)  to transport building materials and equipment required in relation to building work that is to be, or is being, carried out on land adjoining the community land, or

(b)  to remove waste that is consequential on such work,

      is prescribed as a short-term, casual purpose if such work is for a purpose referred to in section 46 (4) (a) (ii) of the Act.

(5)  In this clause, existing road or fire trail means a road or a fire trail that was in existence on 1 January 2001 (the date on which the Local Government (General) Amendment (Community Land) Regulation 2000 commenced).

117   Exemptions from section 47A of the Act (Leases, licences and other estates in respect of community land—terms of 5 years or less)

(1)  Leases, licenses and other estates granted for the following purposes are exempt from the provisions of section 47A of the Act:

(a)  residential purposes, where the relevant community land has been developed for the purposes of housing owned by the council,

(b)  the provision of pipes, conduits or other connections under the surface of the ground for the connection of premises adjoining the community land to a facility of the council or other public utility provider that is situated on the community land,

(c)  use and occupation of the community land for events such as:

(i)  a public performance (that is, a theatrical, musical or other entertainment for the amusement of the public),

(ii)  the playing of a musical instrument, or singing, for fee or reward,

(iii)  engaging in a trade or business,

(iv)  playing of any lawful game or sport,

(v)  delivering a public address,

(vi)  conducting a commercial photographic session,

(vii)  picnics and private celebrations such as weddings and family gatherings,

(viii)  filming,

(d)  a purpose referred to in clause 116 (3) or (4).

(2)  However, the use or occupation of community land for events listed in subclause (1) (c) is exempt only if:

(a)  the use or occupation does not involve the erection of any building or structure of a permanent nature, and

(b)  in the case of any use or occupation that occurs only once, it does not continue for more than 3 consecutive days, and

(c)  in the case of any use or occupation that occurs more than once, each occurrence is for no more than 3 consecutive days, not including Saturday and Sunday, and the period from the first occurrence until the last occurrence is not more than 12 months.

118   Additional notifications in relation to certain filming projects

(1)  This clause prescribes, for the purposes of section 47AA of the Act, the additional manner of notification or advertisement of a council’s proposal under section 47A of the Act to grant a lease, licence or other estate in respect of community land in order to allow a filming project to be carried out on that community land.

(2)  If the community land is:

(a)  critical habitat (as defined in section 36A (1) of the Act), or

(b)  directly affected by a recovery plan or threat abatement plan (as referred to in section 36B (2) of the Act),

      written notice is to be given to the Director-General of the Department of Environment and Conservation.

(3)  If the community land is declared to be an area of cultural significance under section 36D (1) of the Act because of the presence on the land of any item that the council considers to be of Aboriginal significance:

(a)  written notice is to be given to the Local Aboriginal Land Council for the area in which the land is situated, and

(b)  an advertisement is to be placed in a newspaper circulating across the State that is primarily concerned with issues of interest to Aboriginal people.

(4)  A notice and an advertisement required by this clause must include the matter specified in section 47 (2) of the Act (subject to section 47AA (2) of the Act).

119   Sublease of community land

For the purposes of section 47C (1) (b) of the Act:

(a)  refreshment kiosks, dances and private parties are prescribed as purposes for which community land that is leased for a surf life-saving club or a sporting club may be sublet, and

(b)  a croquet club is prescribed as a purpose for which community land that is used as a bowling club may be sublet.

Part 5 Rates and charges

Division 1 Preliminary

120   Application of Part

The provisions of this Part that relate to the making and levying of ordinary rates do not apply to county councils.

Division 2 Levying of rates and charges

120A   Rating of irrigable land the subject of certain post-1.7.05 supplementary valuations

(1)  This clause applies to such part of any area as comprises land:

(a)  that is categorised as farmland for the purposes of Part 3 of Chapter 15 of the Act, and

(b)  that is the subject of a water right within the meaning of the Valuation of Land Act 1916, and

(c)  that, since 1 July 2005, has been the subject of a supplementary valuation under that Act,

      unless the council has, by resolution, determined that this clause is not to apply to its area.

(2)  Land to which this clause applies is exempt from the provisions of section 498 of the Act to the extent to which that section requires the ad valorem amount of an ordinary rate to apply to the current land value of the land.

(3)  Instead, section 498 of the Act applies to any such land as if that section required the ad valorem amount of an ordinary rate to apply to the land value of the land as it was immediately before the land became the subject of the supplementary valuation referred to in subclause (1) (b).

(4)  If the supplementary valuation has arisen from a subdivision of land, the land value of each parcel of land arising from the subdivision is taken to be an amount that bears the same proportion to the land value of the unsubdivided land, as it was immediately before the subdivision, as the area of that parcel bears to the area of the unsubdivided land.

120B   Matters to which council may have regard in sub-categorising irrigable land

For the purpose of determining sub-categories of farmland, as referred to in section 529 of the Act, a council may have regard to any differences in the reduction of land values of irrigable land that have arisen as a consequence of the commencement of section 6A (4) of the Valuation of Land Act 1916.

120C   Transitional nature of clauses 120A and 120B

(1)  Clauses 120A and 120B are transitional provisions consequent on the enactment of the Local Government and Valuation of Land Amendment (Water Rights) Act 2005.

(2)  Clause 120A does not apply to a council in respect of any year following the first occasion after 1 July 2007 that the Valuer-General gives a valuation list to the council following a general valuation carried out in respect of the council’s area.

(3)  Clause 120B does not apply to a council in respect of any year following the second occasion after 1 July 2007 that the Valuer-General gives a valuation list to the council following a general valuation carried out in respect of the council’s area.

121   Land used for caravan park or manufactured home not to be categorised as residential (section 516 (2))

If the dominant use of land is for a caravan park or a manufactured home estate, the land is not to be categorised as residential for rating purposes.

122   Land used for retirement village, serviced apartments or time-shares to be categorised as residential (section 516 (2))

If the dominant use of land is for a retirement village, serviced apartments or a time-share scheme, the land is to be categorised as residential for rating purposes.

123   Land exempt from rates (section 556)

The following land is exempt from all rates, except water supply special rates and sewerage special rates:

(a)  all land leased by the Royal Agricultural Society in the Homebush Bay area (as defined in the Olympic Co-ordination Authority Act 1995 before the repeal of that Act),

(b)  all land occupied by the Museum of Contemporary Art Limited,

(c)  all land comprising the site known as Museum of Sydney, on the site of first Government House,

(d)  all land that is held by a body corporate on behalf of an Aboriginal person or persons pursuant to an indigenous land use agreement registered under the Native Title Act 1993 of the Commonwealth.

124   (Repealed)

125   Services for which an annual charge may be imposed (section 501)

(1)  Emergency services provided or proposed to be provided within the area of the Blue Mountains City Council are prescribed for the purposes of section 501 of the Act.

(2)  In this clause, emergency services includes (without limitation) bushfire and other fire services, civil emergency services, and management services associated with emergency services.

125A   Annual charges for stormwater management services

(1)  For the purposes of section 496A of the Act, a council may make or levy an annual charge for stormwater management services only in respect of urban land that is categorised for rating purposes as residential or business.

Note. Part 3 of Chapter 15 of the Act allows a council to categorise each parcel of land within its area.

(2)  A council may not make or levy an annual charge for the provision of stormwater management services in respect of a parcel of land if:

(a)  the parcel of land is vacant land, or

(b)  the parcel of land is subject to a special rate or charge that has been made for or towards meeting the cost of any works, services, facilities or activities the primary purpose of which is the provision of stormwater management services.

(3)  A council may not make or levy an annual charge for the provision of stormwater management services if the council has received an instrument from the Minister under section 508 or 508A of the Act which specifies the percentage by which the council may vary its income and the instrument imposes a condition with respect to that variation to the effect that the primary purpose of the variation is to fund stormwater management services.

(4)  A council may not make or levy an annual charge for the provision of stormwater management services for a parcel of land that exceeds:

(a)  if the anticipated cost of providing stormwater management services to the parcel of rateable land is less than the maximum annual charge in respect of the parcel of rateable land—the anticipated cost, or

(b)  if the anticipated cost referred to in paragraph (a) is equal to or greater than the maximum annual charge in respect of the parcel of rateable land—the maximum annual charge for the parcel of rateable land.

(5)  In this clause:

maximum annual charge, in respect of a parcel of land, means the maximum annual charge that may be made or levied by a council in respect of the parcel of rateable land in accordance with clause 125AA.

urban land means land within a city, town or village.

125AA   Maximum annual charge for stormwater management services

For the purposes of section 510A of the Act, the maximum annual charge for stormwater management services that may be levied in respect of a parcel of rateable land is:

(a)  for land categorised as residential—$25, and

(b)  for land categorised as business—$25, plus an additional $25 for each 350 square metres or part of 350 square metres by which the area of the parcel of land exceeds 350 square metres.

126   Minimum amounts of rate

For the purposes of section 548 (3) (a) of the Act, the amount prescribed is $458.

127   Rates and charges notices

A rates and charges notice must contain the following information:

(a)  the land to which it relates,

(b)  the land value of the land to which it relates and the base date of the general valuation from which the land value is derived,

(c)  particulars of each rate or charge levied on the land by the notice,

(d)  if the rate consists of a base amount to which an ad valorem amount is added, particulars of the base amount,

(e)  the date the notice is taken to have effect,

(f)  particulars of any outstanding arrears of rates and charges levied on the land and of any interest payable on those amounts,

(g)  the total amount due and the dates for payment of the rates or charges concerned,

(h)  the amounts payable for, and the due dates for payment of, instalments of rates or charges,

(i)  particulars of any waiver of an amount of special rate in consideration of payment of a lump sum,

(j)  a statement that concessions are available to eligible pensioners for any quarter in which they are eligible pensioners,

(k)  particulars of any concession extended in respect of payment of the rates,

(l)  particulars of any discount for prompt payment in full of a rate or charge,

(m)  particulars of any postponement of rates or postponed rates,

(n)  particulars of any option to pay a lump sum towards the capital cost of any works, services or facilities instead of a special rate in the notice,

(o)  a statement that if payment is not made on or before the due date or dates interest accrues on the overdue amount,

(p)  a statement as to how to make inquiries about the notice,

(q)  the text, or a summary, of the following provisions of the Act (if applicable):

(i)  section 524 (Notice of change of category),

(ii)  section 525 (Application for change of category),

(iii)  section 526 (Appeal against declaration of category),

(iv)  section 555 (What land is exempt from all rates?),

(v)  section 556 (What land is exempt from all rates, other than water supply special rates and sewerage special rates?),

(vi)  section 557 (What land is exempt from water supply special rates and sewerage special rates?),

(vii)  section 562 (Payment of rates and annual charges),

(viii)  section 563 (Discount for prompt payment in full),

(ix)  section 564 (Agreement as to periodical payment of rates and charges),

(x)  section 566 (Accrual of interest on overdue rates and charges),

(xi)  section 567 (Writing off of accrued interest),

(xii)  section 574 (Appeal on question of whether land is rateable or subject to a charge).

128   Information relating to rates and charges

A council must, if required to do so by the Minister or the Director-General, furnish information to the Minister or the Director-General, in the form required, relating to rates and charges levied by the council.

Division 3 Payment of rates and charges

129   Request for transfer of land in payment of rates, charges or accrued interest

A request to the council for the acceptance of a transfer of land under section 570 of the Act in payment of rates, charges or accrued interest must be in writing, be signed by each owner or person having an interest in the land concerned and contain the following information:

(a)  title particulars and the rate assessment number of the land,

(b)  particulars of any mortgage, charge, lien or other encumbrance affecting the land.

130   Additional circumstances in which rates or charges may be written off (section 607)

The council may write off rates and charges and interest accrued on unpaid rates and charges if an amount of an increase to a rate is subsequently reduced as a consequence of clause 84 of Schedule 8 to the Act.

Note. Clause 84 of Schedule 8 is concerned with ordinary rates levied for the year commencing 1 July 2005 and each of the subsequent four years. It provides that, in general, the amount that may be levied as an ordinary rate for any parcel of land in the category “farmland” (or any sub-category of that category) must not be more than 20% above the amount levied as an ordinary rate for that parcel for the previous year.

131   Procedures for writing off rates and charges

(1)  The council must, from time to time, by resolution, fix the amount of rates and charges above which any individual rate or charge may be written off only by resolution of the council.

(2)  An amount of rates or charges of or below that amount can be written off either by resolution of the council or by order in writing of the council’s general manager. In the absence of a resolution under subclause (1), rates and charges can be written off only by resolution of the council.

(3)  A resolution or order writing off an amount of rates or charges must:

(a)  specify the name of the person whose debt is being written off, and

(b)  identify the account concerned, and

(c)  specify the amount written off,

      or must refer to a record kept by the council in which those particulars are recorded.

(4)  An amount of rates or charges can be written off under this clause only:

(a)  if there is an error in the assessment, or

(b)  if the amount is not lawfully recoverable, or

(c)  as a result of a decision of a court, or

(d)  if the council or the general manager believes on reasonable grounds that an attempt to recover the amount would not be cost effective.

(5)  The fact that an amount of rates or charges is written off under this clause does not prevent the council concerned from taking legal proceedings to recover the amount.

(6)  The general manager must advise the council of rates and charges written off by written order of the general manager.

132   Details of written off rates and charges to be included in annual report

The council’s annual report must include the amount of rates and charges written off during the year.

133   Sale of land to recover overdue rates or charges

An advertisement under section 715 (1) of the Act notifying a proposed sale of land for unpaid rates or charges is to contain the following information:

(a)  that the council proposes to sell the land for unpaid rates or charges at public auction,

(b)  the name of the auctioneer and the proposed place, date and time of the auction,

(c)  the persons known to the council to have an interest in the land,

(d)  the amount of rates and charges unpaid for more than 5 years from the date on which they became payable and the amount of any interest accrued,

(e)  the amount of any other rates and charges payable and unpaid and the amount of any interest accrued,

(f)  the total amount due,

(g)  that, if all rates and charges payable (including overdue rates and charges) are not paid to the council or an arrangement satisfactory to the council is not entered into by the rateable person before the time fixed for the sale, the council will proceed with the sale.

Division 4 Pensioners

134   Eligible pensioners for the purposes of determining pensioner concessions—prescribed classes

For the purposes of paragraph (a) of the definition of eligible pensioner in the Dictionary to the Act, the following classes of persons are prescribed:

(a)  persons who receive a pension, benefit or allowance under Chapter 2 of the Social Security Act 1991 of the Commonwealth, or a service pension under Part III of the Veterans’ Entitlements Act 1986 of the Commonwealth, and who are entitled to a pensioner concession card issued by or on behalf of the Commonwealth Government,

(b)  persons who receive a pension from the Commonwealth Department of Veterans’ Affairs as:

(i)  a war widow or war widower within the meaning of the Veterans’ Entitlements Act 1986 of the Commonwealth, or

(ii)  the unmarried mother of a deceased unmarried member of the Australian Defence or Peacekeeping Forces, or

(iii)  the widowed mother of a deceased unmarried member of the Australian Defence or Peacekeeping Forces,

      and do not have income and assets that would prevent them from being granted a pensioner concession card (assuming they were eligible for such a card),

(b1)  persons who have received a lump sum mentioned in section 234 (1) (b) of the Military Rehabilitation and Compensation Act 2004 of the Commonwealth or are receiving a weekly amount mentioned in that paragraph, and do not have income and assets that would prevent them from being granted a pensioner concession card (assuming they were eligible for such a card),

(c)  persons who receive a general rate of pension adjusted for extreme disablement under section 22 (4) of the Veterans’ Entitlements Act 1986 of the Commonwealth, or a special rate of pension under section 24 of that Act,

(d)  persons who receive, or who at some point in their life have been eligible for, a Special Rate Disability Pension under the Military Rehabilitation and Compensation Act 2004 of the Commonwealth.

135   Application for eligible pensioners concession

An application under Division 1 of Part 8 of Chapter 15 of the Act is to be made in the form approved by the Director-General.

136   Abandonment of pensioners rates and charges—prescribed persons

For the purposes of section 582 of the Act, any person who receives a pension, benefit or allowance under Chapter 2 of the Social Security Act 1991 of the Commonwealth and is the holder of a pensioner concession card issued by or on behalf of the Commonwealth Government is a prescribed person.

Part 5A Environmental upgrade agreements

136A   What are environmental upgrade works?

(1)  For the purposes of section 54E of the Act, environmental upgrade works include any works in respect of a building that result in an environmental improvement in respect of the use and occupation of the building.

(2)  Works result in an environmental improvement if the works:

(a)  increase the efficiency of energy or water consumption, or

(b)  reduce energy or water consumption, or

(c)  prevent or reduce pollution, or

(d)  eliminate or reduce the discharge of wastes, or other substances, that are harmful to the environment, or

(e)  reduce the use of materials, or

(f)  enable the recovery or recycling of materials, or

(g)  enable the monitoring of environmental quality, or

(h)  reduce greenhouse gas emissions, or

(i)  encourage or facilitate alternative methods of transportation to the use of a private motor vehicle (such as walking and cycling).

(3)  Without limiting the above, the following works are environmental upgrade works if they result in an environmental improvement:

(a)  the replacement, modification, removal or installation of end-user equipment,

(b)  the modification of the usage of end-user equipment.

(4)  In this clause:

end-user equipment means any equipment, process or system that:

(a)  directly consumes energy or water, causes a risk to human health, or degrades the environment, or

(b)  controls or influences the impact any other equipment, process or system has on the consumption of energy or water, human health, or the environment.

136B   Delegation of power to impose charge

(1)  A council may, by resolution, delegate to the general manager of the council the function of making or amending environmental upgrade charges under an environmental upgrade agreement.

(2)  The general manager cannot sub-delegate such a function.

(3)  Sections 377 and 378 of the Act are modified to the extent necessary to give effect to this clause.

136C   Form of charge

(1)  It is not necessary for a council, when making an environmental upgrade charge, to give a short separate name for each amount of the charge.

(2)  Section 543 of the Act is modified to the extent necessary to give effect to this clause.

136D   Curing of irregularities

Section 545 of the Act is modified so that a reference to the Minister, in relation to an environmental upgrade charge, is to be read as a reference to the Minister for Climate Change and the Environment or the Minister’s delegate.

136E   Levying of charge on strata buildings

(1)  An environmental upgrade charge levied on land that is the subject of a strata scheme is a charge on all lots that are the subject of the strata scheme.

(2)  However, the amount of any unpaid environmental upgrade charge is to be apportioned between the lots the subject of the strata scheme, so that the charge payable in respect of each lot the subject of the strata scheme is taken to be the relevant proportion of the unpaid environmental upgrade charge.

(3)  If the charge payable in respect of a particular lot is paid by the owner of the lot, the unpaid environmental charge to which the payment relates ceases to be a charge on that lot.

(4)  In this clause, the relevant proportion is the proportion that the unit entitlement of a lot bears to the aggregate unit entitlement of all lots the subject of the strata scheme.

(5)  Unit entitlements are determined in accordance with the Strata Schemes (Freehold Development) Act 1973, or the Strata Schemes (Leasehold Development) Act 1986, as appropriate.

(6)  Section 550 of the Act, and the provisions of Part 7 of Chapter 15 of the Act that apply in respect of environmental upgrade charges, are modified to the extent necessary to give effect to this clause.

(7)  To avoid doubt, a reference in this clause to the amount of any unpaid environmental upgrade charge includes a reference to any amount charged under an environmental upgrade agreement for late payment of an environmental upgrade charge.

136F   Payment of environmental upgrade charges by lessees

(1)  The Crown is liable to pay an environmental upgrade charge in respect of land owned by the Crown if the environmental upgrade charge is levied under an environmental upgrade agreement that the Crown entered into as owner of the land.

(2)  This clause applies even if the land is held under a lease for private purposes.

(3)  Section 561 of the Act is modified to the extent necessary to give effect to this clause.

(4)  This clause does not affect the application of section 54N of the Act in respect of any lease of the land by the Crown.

136G   Payment of environmental upgrade charges by instalment

Section 562 of the Act applies to the payment of environmental upgrade charges, unless otherwise agreed by the parties to the environmental upgrade agreement.

136H   Accrual of interest on overdue charges

(1)  Section 566 of the Act applies in relation to any interest on an unpaid environmental upgrade charge that is charged by or on behalf of a finance provider under an environmental upgrade agreement in the same way as it applies in relation to rates and charges levied by a council under Chapter 15 of the Act.

(2)  Accordingly, a reference in section 566 (3) of the Act to the rate of interest set by the council is to be read as a reference to the rate of interest charged by or on behalf of the finance provider.

136I   Application of payments

Section 568 of the Act applies to environmental upgrade charges.

136J   Certificate issued by Council as to environmental upgrade charges

(1)  A certificate issued by a council under section 603 of the Act in respect of a parcel of land that is affected by an environmental upgrade agreement is to state (in addition to the matters referred to in that section) the amount of any environmental upgrade charges that are due and payable under the agreement.

(2)  Land is affected by an environmental upgrade agreement if there is an environmental upgrade agreement in force that enables the council to levy an environmental upgrade charge in respect of the land.

(3)  Section 603 of the Act is modified to the extent necessary to give effect to this clause.

136K   Sale of land to pay charge

(1)  If a council sells land as a result of a failure to pay an environmental upgrade charge, the unpaid environmental upgrade charge ceases to be a charge on the land when the purchase money for the land is paid to the council (even if the purchase money is insufficient to satisfy the amount of the unpaid environmental upgrade charge).

(2)  However, if the purchase money is insufficient to satisfy the amount of the unpaid environmental upgrade charge, a person who, before the sale, was liable to pay the environmental upgrade charge continues to be liable to pay the outstanding amount of the unpaid environmental upgrade charge.

(3)  Section 719 (b) of the Act does not apply in respect of an environmental upgrade charge.

136L   Modification of Retail Leases Act 1994

(1)  Section 12 of the Retail Leases Act 1994 does not apply to a provision of a lease that requires a lessee to pay an environmental upgrade contribution.

(2)  Accordingly, an environmental upgrade contribution may be recovered whether or not the contribution is disclosed in a disclosure statement given to the lessee in accordance with Part 2 of that Act.

(3)  Section 24A of the Retail Leases Act 1994 does not apply to a provision of a lease to that requires a lessee to pay an environmental upgrade contribution.

(4)  In this clause, an environmental upgrade contribution means a contribution towards an environmental upgrade charge payable under an environmental upgrade agreement.

136M   Mandatory requirements of guidelines

Sections 4–7 of the guidelines made under section 54Q of the Act and published in the Gazette on 18 February 2011 are adopted as mandatory requirements.

Note. A council must comply with any mandatory requirements of the guidelines in exercising its functions under Part 2A of Chapter 6 of the Act.

Part 6 Water services

Division 1 General provisions

137   Water supply may be restricted if there is a shortage of supply

(1)  A council that considers the available stored water in a water supply system supplying its area, or the available capacity of supply from that system, to be insufficient to allow the unrestricted consumption of water for purposes other than domestic purposes may, by notice published in accordance with this clause, restrict:

(a)  the purposes for which the water can be used, or

(b)  the times when the water can be used, or

(c)  the methods by which the water can be used, or

(d)  the quantities of the water that can be used.

(2)  The council may, by notice published in accordance with this clause, place the same sort of restrictions as are referred to in subclause (1) on the use of water from such a water supply system for any purposes (including domestic purposes):

(a)  if there is a drought, or

(b)  if the available stored water, or the available capacity of supply, is so limited as to make extraordinary measures necessary in the general interest of water consumers.

(3)  Restrictions under this clause can be imposed in respect of all of the council area supplied by the water supply system, but can apply to a part of that area if and only if:

(a)  the shortage of water or shortage in capacity of supply is limited to that part, or

(b)  the council orders the supply to be restricted to different parts of the area in rotation.

(4)  Restrictions under this clause can be imposed only by a notice of the council published in a newspaper circulating within the council’s area.

(5)  All agreements made by the council relating to the supply of water are subject to this clause.

(6)  This clause does not authorise the council to make orders restricting persons’ rights under the Water Act 1912 or the Water Management Act 2000.

138   Works for which approval is required under section 60 of the Act

(1)  The Minister for Utilities may give a council an approval for the purposes of section 60 of the Act if and only if:

(a)  the council has made an application in writing for consent that is accompanied by the relevant documents, and

(b)  either the council has complied with any requirement of that Minister to supply further information with respect to the application or that Minister has waived any such requirement, and

(c)  that Minister is satisfied that the council is competent to exercise the powers that it would not be able to exercise without that approval, and

(d)  all inspections of the work and the site of the work that that Minister has directed to be carried out for the purpose of enabling the application to be considered have been carried out.

(2)  The relevant documents are:

(a)  the plans and specifications of, and documents and data in the possession of the council that are relevant to, the exercise of power in respect of which the approval is sought, and

(b)  any documents containing details sufficient to satisfy the Minister for Utilities of the matters referred to in subclause (1) (b)–(d).

(3)  If the Minister for Utilities has, for the purposes of section 60 of the Act, approved the exercise by the council of its powers with respect to a work, that Minister may, by notice in writing to the council, revoke that approval if the council has failed:

(a)  to comply with any requirements that that Minister has made with respect to the provision of additional plans, specifications, documents or information with respect to the exercise of those powers, or

(b)  to comply with any directions that that Minister has given with respect to the work, or

(c)  to accept any supervision of the exercise of those powers that that Minister has required.

139   Erection of notices to indicate catchment districts

The council may, on land in a catchment district, erect such notices as it considers necessary for indicating the boundaries of the district and directing attention to any prohibitions or restrictions applicable to the district.

Note. Section 640 of the Act provides that contravention of a prohibition or restriction in such a notice is an offence.

140   Flood retarding basins

A work that is, or will when completed be, a prescribed dam for the purposes of the Dams Safety Act 1978 is prescribed as a flood retarding basin for the purposes of section 60 (d) of the Act.

Division 2 Functions of councils

141   Works constructed to serve 2 or more council areas

(1)  If water supply works have been constructed to serve the areas of 2 or more councils, the council that has control of the works is required to supply water to each of the other councils concerned, either at the boundary of its area or at some other convenient point that may be mutually agreed with those other councils.

(2)  If sewerage works have been constructed to serve the areas of 2 of more councils, the council controlling the sewer mains through which sewage has to flow must allow that flow.

(3)  If stormwater drainage works have been constructed to serve the areas of 2 or more councils, a council controlling a component of the stormwater drainage system must facilitate the proper functioning of the system.

(4)  If the capital cost of the water supply, sewerage or stormwater drainage works has not been notified as a joint debt, the council that has control of the works may make a charge for:

(a)  the supply of water from the water supply works, or

(b)  allowing the flow of sewage through the sewerage works and for pumping and treating the sewage, or

(c)  managing the flow of stormwater through the stormwater drainage works.

(5)  Such a charge is to be:

(a)  of such amount as may be agreed with each of the other councils concerned, or

(b)  if there is no agreement, of such amount as the Minister may from time to time determine and notify to all of the councils concerned.

142   Fire hydrants

(1)  The council:

(a)  must install hydrants in its water mains at such convenient distances, and at such places, as may be necessary for the ready supply of water to extinguish fires, and

(b)  must maintain the hydrants in effective working order.

This subclause does not apply to a water main that is less than 100 millimetres in diameter or if the water supply system is not sufficient for the operation of fire hydrants (in such circumstances the council may provide other means for the ready supply of water to extinguish fires).

(2)  The council may, at the request and expense of the owner or occupier of a building, install a hydrant (to be used only for extinguishing fires) in or in the vicinity of the building. If such a hydrant is installed, the council must ensure that it is maintained in effective working order.

(3)  A council may remove a hydrant from any of its water mains if satisfied on reasonable grounds that the hydrant is no longer needed.

(4)  The council must at all times keep charged with water all its pipes to which hydrants are connected unless prevented from doing so:

(a)  by drought or other unavoidable cause or accident, or

(b)  while necessary repairs to the pipe or hydrant are being carried out.

(5)  Persons authorised to do so by the council may take water without charge for the purpose of extinguishing fires.

143   Inspection of pipes and drains and measurement of water and sewage

(1)  The council may, at any reasonable time:

(a)  inspect any service pipe connected to a water main, and

(b)  inspect any drain connected to a sewer main, and

(c)  install meters or other devices for measuring the quantity of water supplied to, or the quantity of sewage discharged from, premises, and

(d)  measure the quantity of water supplied to, or the quantity of sewage discharged from, premises.

(2)  The occupier of the relevant premises must provide to the council such information as it requires to enable it to estimate the quantity of water actually supplied to, or the quantity of sewage actually discharged from, the premises.

144   Cutting off or restricting water supply

(1)  The council may cut off or restrict the supply of water to premises:

(a)  if any water meter used to measure that supply is out of repair or, in the opinion of the council, incorrectly registers the supply of water, or

(b)  if any rates or charges in respect of the water supplied to the premises are unpaid, or

(c)  if, in the opinion of the council, that action is necessary because of unusual drought or other unavoidable cause or any accident, or

(d)  if the owner or occupier or person requiring a supply of water fails to comply with a lawful order or requirement of the council as to installing water meters or instruments for measuring the quantity of water supplied, or

(e)  if the owner or occupier or person requiring a supply of water fails to comply with a lawful order or requirement of the council to repair or alter water connections, pipes, fittings or fixtures connected to the council’s water supply system, or

(f)  if the occupier of the premises contravenes a provision of Division 3 of this Part or fails to comply with any council order or public notice requiring consumers of water to economise its use in time of drought or scarcity of supply, or

(g)  if the owner or occupier of the premises fails to comply with a requirement of a council order to remove, replace, alter, extend, repair or stop using a water pipe, fitting or fixture.

(2)  The cutting off of the supply of water under this clause for non-payment of rates or charges does not affect the liability of the rateable person to pay those rates or charges.

(3)  If the council cuts off the supply of water to premises because:

(a)  there is no water meter installed on the premises, or

(b)  the water meter on the premises registers incorrectly, or

(c)  water rates or charges for the premises are unpaid,

      the council may refuse to supply water to those premises until a water meter is installed on the premises, the water meter registers correctly or the water rates or charges are paid (as the case may require).

145   New sewer or stormwater drain to be constructed if it is less costly than a connection to an existing sewer or stormwater drain

(1)  A council that believes that it would cost more to provide for the flow of existing sewers or stormwater drains on 2 or more separate premises to empty into an existing sewer or stormwater drain than it would to provide for the flow to empty into a new sewer or stormwater drain may construct a new sewer or stormwater drain for that purpose.

(2)  A council, on constructing such a new sewer or stormwater drain, may, by order served on the owners or occupiers of the premises concerned, order those owners or occupiers to cause the sewers or stormwater drains on each of those premises to empty into the new sewer or stormwater drain.

(3)  The council:

(a)  must apportion fairly the expenses of the construction of the new sewer or stormwater drain among the owners or occupiers of each of the premises affected, and

(b)  require those owners or occupiers to pay the apportioned expenses to the council.

146   Connections to council’s sewerage system

(1)  If premises are liable to a special sewerage rate, the council may, at the request of the person liable to pay rates in respect of the premises:

(a)  carry out such works as may be necessary to provide for the drainage of sewage from the premises, and

(b)  provide such connections as may be necessary to enable fixtures installed on the premises to discharge their contents into the council’s sewerage system.

(2)  The council may, in respect of work done or any materials provided under subclause (1), impose on the person a charge sufficient to meet the cost of the work or materials.

(3)  Such a charge:

(a)  must cover the cost of doing the work or providing the materials, together with interest on that cost at a rate not exceeding that fixed in respect of overdue rates, and

(b)  may be recovered by equated instalments of principal and interest during such period as the council determines.

(4)  Any such charge may be recovered as a rate and is to be a charge on the premises in respect of which it is imposed as if it were a rate.

(5)  The council is not responsible for the repair, maintenance or renewal of any work done or materials provided under this clause on or in respect of the premises concerned, except as regards defective work or materials.

(6)  Any work so done or materials so provided belongs to the owner of those premises.

147   Water not to be supplied through water supply work until inspected and certified

The council must not supply water through a water supply work connected to the council’s water supply system until the work has been inspected and certified:

(a)  by the council or a suitably qualified person determined by the council, or

(b)  if the water supply work is of a type for which the approval of the Minister for Utilities is required under section 60 of the Act—in accordance with paragraph (a) or, if that Minister has specifically authorised inspection and certification by another suitably qualified person, by that person,

as having been constructed in accordance with all applicable standards or requirements set out or referred to in the Act and this Regulation.

148   Council to prepare map of water supply, sewerage and stormwater drainage works

(1)  The council:

(a)  must, before or within a reasonable time after water supply, sewerage or stormwater drainage works have been constructed, prepare a map of the works and the surrounding land that is liable to be rated or become subject to an annual charge for services in relation to the works, and

(b)  must from time to time, as the works are extended, amend the map so that it shows the extended works and the land.

(2)  The council must ensure that every such map also shows:

(a)  the levels of the works at the road frontages of the land, and

(b)  so far as is reasonably practicable, the distances from the works of the nearest boundaries of that land and the location of buildings on that land, and

(c)  any information relating to the works that might reasonably be expected to affect construction work that might be carried out on the land.

(3)  The owner or occupier of land affected by such a map, or any other person who has the written permission of such an owner, is entitled to inspect the map during the council’s office hours.

149   Plans of connections to sewerage or stormwater drainage systems

If the owner or occupier of premises has been ordered by the council to connect the premises to the council’s sewerage system or stormwater drainage system, the council must give that owner or occupier a plan showing the location of the connection.

150   Inspection of drainage diagrams

An owner or occupier of land affected by the installation of drains in accordance with an approval referred to in item 4 or 5 of Part B of the Table to section 68 of the Act (or any other person with the written permission of such an owner) is entitled to inspect, during the council’s office hours, any diagrams of those drains provided to the council as a condition of the approval.

Division 3 General requirements relating to water supply, sewerage and stormwater drainage

151   Water supply, sewerage and stormwater drainage work to comply with applicable standards and requirements

(1)  Water supply work and sewerage work that is plumbing and drainage work within the meaning of the Plumbing and Drainage Act 2011 must comply with any requirements of that Act or the regulations made under that Act.

(2)  Any other water supply work or sewerage work, and any stormwater drainage work, must comply with any applicable standards or requirements set out or referred to in the Act or this Regulation.

152   Premises to be connected to water supply by an independent house service pipe

(1)  The owner of premises must, unless the council authorises otherwise, ensure that the premises are not connected to a property service pipe linked to the council’s water supply system except by an independent house service pipe.

(2)  The owner of premises connected to the council’s water supply by an independent house service pipe must ensure that the pipe has a stop-valve within the premises that is not more than 450 millimetres from the road alignment or at some other place within the premises approved by the council.

(3)  If several premises are supplied with water by a single house service pipe, the council may require, as a condition of the supply, that a separate house service pipe be laid to each of the premises.

(4)  If the council authorises the connection of 2 or more premises by means of a single house service pipe, the owner of each of the premises must (unless all the premises are occupied by a single household or firm as a residence or place of business) ensure that there is installed on each of those premises:

(a)  a separate stop-valve that complies with subclause (2), and

(b)  a separate water meter to measure the water supply to those premises.

(5)  The owner of a group of contiguous premises may request the council to lay a large property service pipe or water sub-main to supply 2 or more of the premises in the group.

153   Laying of house service pipes

(1)  A person must not lay a house service pipe that is to be connected to the council’s water supply system otherwise than in accordance with the Plumbing Code of Australia.

(2)  However, a person does not contravene subclause (1) only by laying a house service pipe at a depth less than that required by the Plumbing Code of Australia if the council has, in writing, authorised the person to do so.

154   Privately owned water meters to be of a size and class approved by the council

(1)  Before a water meter (other than a water meter hired from or provided by the council) is installed on premises connected or to be connected to the council’s water supply system, the owner of the premises concerned must submit the meter to the council for testing and stamping.

(2)  If it is proposed to move such a water meter to a new position and more than 2 years has elapsed since the meter was last tested and stamped by the council, the owner of the premises concerned must resubmit it for further testing and stamping before moving it to the new position.

(3)  The council is not required to test and stamp a water meter submitted or resubmitted under this clause unless the fee fixed by the council is paid.

155   Security of water meters

(1)  The owner of premises on which there is located a water meter connected to the council’s water supply system must, if required by the council to do so, protect the meter by enclosing it in a box constructed of metal, wood or other strong durable material and fitted with a lock and key approved by the council.

(2)  The owner of such premises must, if the council so requires, deposit with the council the key to the water meter or, if it is enclosed in a meter-box, the key to the box immediately after the meter or box is installed.

156   Water meter not to be used to measure the water supplied to more than one premises except in certain cases

(1)  The owner of premises on which a water meter is installed must ensure that the meter is not used to measure the quantity of water supplied by the council to other premises.

(2)  Subclause (1) does not apply:

(a)  if the premises and the other premises are occupied by a single household or firm as a residence or place of business, or

(b)  if the council authorises the meter to measure the water supplied to the premises and the other premises.

(3)  In those circumstances:

(a)  the council must credit the relevant water account with the amount of any water rate or charge paid in respect of all the premises, and

(b)  the owner of the premises on which the water meter is installed must ensure that:

(i)  the meter is directly connected to the water main by a single property service pipe, and

(ii)  the water for each of the premises passes through and is measured by the meter.

(4)  However, if there are special circumstances requiring the laying of 2 or more service pipes, the owner of the premises must ensure that each service pipe is connected to a water meter.

(5)  In that case, the council must credit the water account of each meter with the amount of any water rate or charge paid in respect of the premises supplied through the relevant service pipe.

157   Hire of meters

(1)  A person who wishes to hire a water meter from the council must execute an agreement prepared for that purpose.

(2)  The agreement must contain the conditions on which the meter is to be hired.

158   Testing of meters

(1)  At the request of an owner or occupier of premises and on the payment of a fee fixed by the council, the council must arrange for a water meter installed on the premises to be examined and tested.

(2)  The council may, on its own initiative, arrange for such a water meter to be examined and tested.

(3)  If, as a result of such an examination and test, a water meter is found not to correctly measure the quantity of water passing through it, the council may charge for the supply of water:

(a)  on the basis of a daily consumption equal to the average daily consumption during the corresponding meter reading period of the previous year, or

(b)  on such other basis as the council and the consumer may agree.

(4)  Testing carried out at the request of a person who is the owner or occupier of premises is to be at the expense of the person, unless the meter is one hired from or provided by the council and the testing indicates that the meter is defective, in which case the testing is to be at the expense of the council.

(5)  A water meter that registers less than 3 per cent more or less than the correct quantity is taken to correctly measure the water passing through it.

(6)  If a water meter provided by the council is found to be defective, the council must replace it with one that is not defective.

(7)  If a privately owned meter is found to be defective, the council may require the owner to rectify the meter or, if the defect cannot be rectified, replace the meter with one that is not defective. An owner who is required to rectify or replace a meter must comply with the requirement.

(8)  The rectification or replacement is to be at the expense of the owner.

(9)  When a privately owned water meter is being rectified or is awaiting replacement, the supply of water to the owner of the meter:

(a)  is to be regulated by special contract made between the owner and the council, and

(b)  is to be restricted to use for domestic purposes.

159   Prevention of waste and misuse of water

The owner, occupier or manager of premises to which water is supplied by the council must:

(a)  prevent waste of water by taking prompt action to repair leaking taps, pipes or fittings located on the premises, and

(b)  take any other action that is reasonable to prevent waste and misuse of water.

160   Misuse of water

An occupier of premises supplied with water from the council’s water supply system must not:

(a)  take any of the water away from the premises, or

(b)  allow any other person to take any of the water away from the premises, or

(c)  use water contrary to a council notice restricting the use of water,

other than in accordance with arrangements instituted by the council.

161   Particular provisions for unmetered premises

(1)  In this clause, unmetered premises means premises to which the council supplies water other than through a water meter.

(2)  An occupier of unmetered premises supplied with water from the council’s water supply system must not use the water for purposes other than domestic purposes unless the water is supplied under a special contract or the permission of the council has been obtained.

(3)  For the purposes of subclause (2), the use of water for domestic purposes does not include the use of water for any of the following:

(a)  buildings used for housing animals or birds (not being buildings also used for human habitation),

(b)  a manufacturing purpose,

(c)  the irrigation or sprinkling of crops, gardens or lawns,

(d)  the production of power for fountains,

(e)  ornamental purposes.

(4)  A person must not install or allow to remain installed within unmetered premises a tap or device to which a hose can be attached, unless:

(a)  the water supplied by the council is supplied under a contract allowing the use of the tap or device, and

(b)  any special fee for the tap or device fixed by the council has been paid.

(5)  A person must not, on unmetered premises to which water is supplied by the council for domestic purposes, use a hose for the purpose of watering a garden or laying dust (or any similar purpose) with the water supplied, unless:

(a)  the activity is specifically authorised by an arrangement entered into with the council, and

(b)  any fee required by the arrangement has been paid.

162   Joint sewerage services prohibited

(1)  The owner of premises connected to the council’s sewerage system must ensure:

(a)  that any house drain on the premises is kept separate from that of all other premises, and

(b)  that the only fittings and fixtures permitted to discharge into the house drain are those located on the premises.

(2)  The owner of premises on which a house drain is or is to be connected to the council’s sewerage system must ensure that the drain is laid within the boundary of the premises until it:

(a)  reaches that system or the boundary nearest to that system, or

(b)  emerges into a public place.

Part 7 Tendering

Division 1 Preliminary

163   Application of Part

(1)  This Part applies to all contracts for which a council is required by section 55 of the Act to invite tenders.

Note. This Part does not apply to other kinds of contracts. However, a council may apply provisions of this Part (with any necessary alterations) to other kinds of contracts if it wishes to do so.

(1A)  The following persons are prescribed for the purposes of section 55 (3) (a) of the Act:

(i)  Local Government Procurement Partnership (ABN 34 578 553 267),

(ii)  MAPS Group Limited trading as Strategic Purchasing (ABN 45 058 335 363).

(1B)  To avoid doubt, a reference to a person prescribed by subclause (1A) includes any duly appointed agent of that person.

(2)  For the purposes of section 55 (3) (n) of the Act, section 55 does not apply to a contract involving an estimated expenditure or receipt of an amount of less than $150,000.

164   Definitions

In this Part:

appropriate person, in relation to a tender submitted to a council, means a person designated by the general manager to receive or deal with tenders submitted to the council and, if a person is not designated, means the general manager.

electronic means includes electronic communication within the meaning of the Electronic Transactions Act 2000.

formal tender document means a standard form document issued by a council for completion by tenderers in connection with the submission of tenders to the council.

goods includes materials.

instalment contract means a contract requiring the payment of instalments by or to a council over a period of 2 or more years.

public authority includes a council.

relevant newspapers, in relation to a council, means:

(a)  a Sydney metropolitan daily newspaper, and

(b)  either or both of the following:

(i)  a newspaper circulating in the council’s area,

(ii)  a newspaper circulating in the district where potential tenderers are likely to be carrying on business or to be residing.

tender means a tender submitted or proposed to be submitted to a council in accordance with this Part.

Note. Part 2 of the Electronic Transactions Act 2000 facilitates the use of electronic communication as a means of effecting certain transactions, such as contracts.

165   Requirements for contracts to which this Part applies

(1)  A council may enter into a contract to which this Part applies only in accordance with the provisions of this Part.

(2)  A contract to which this Part applies, and any variation or discharge of the contract, must be in writing and must be executed by or on behalf of the council.

Division 2 Prerequisites for tendering

166   Council to decide whether tenders are to be by open tendering or selective tendering

Whenever a council is required by section 55 of the Act to invite tenders before entering into a contract, the council must decide which of the following tendering methods is to be used:

(a)  the open tendering method by which tenders for the proposed contract are invited by public advertisement,

(b)  the selective tendering method by which invitations to tender for a particular proposed contract are made following a public advertisement asking for expressions of interest,

(c)  the selective tendering method by which recognised contractors selected from a list prepared or adopted by the council are invited to tender for proposed contracts of a particular kind.

167   Open tendering

(1)  A council that decides to use the open tendering method for a proposed contract must publish an advertisement in the relevant newspapers inviting tenders for the proposed contract.

(2)  The advertisement must:

(a)  express the purpose of the proposed contract, and

(b)  give details of where and when tender documents relating to the proposed contract can be obtained and the purchase price of those documents, and

(c)  specify the name of a person to whom requests for information concerning the proposed contract may be addressed and how the person can be contacted, and

(d)  invite any person willing to fulfil the requirements of the proposed contract to submit a tender to the council by the deadline specified in the advertisement.

The deadline must be a specified time on a date that is at least 21 days after the date of publication or first publication of the advertisement.

(3)  The tender documents relating to the proposed contract must comply with clause 170.

168   Selective tendering method by which invitations to tender for proposed contract are made following public advertisement asking for expressions of interest

(1)  A council that decides to use the selective tendering method referred to in clause 166 (b) for allocating a particular proposed contract must publish in the relevant newspapers an advertisement inviting applications from persons interested in tendering for the proposed contract.

(2)  Every such advertisement must include:

(a)  a brief description of the work, goods, facilities, services or property concerned, and

(b)  the name of a person to whom requests for information concerning the proposed contract may be addressed and how the person can be contacted, and

(c)  the deadline for submitting applications.

The deadline must be a specified time on a date that is at least 21 days after the date of publication or first publication of the advertisement.

(3)  A council must consider all applications made in response to such an advertisement and, in so doing, must take into account:

(a)  the experience of the applicants in fulfilling the requirements of similar contracts, and

(b)  the capacity of the applicants to fulfil the requirements of the proposed contract.

(4)  After considering the applications, the council may either:

(a)  send invitations in writing to all applicants, or such of them as the council thinks will be able to fulfil the requirements of the proposed contract, to tender for the proposed contract, or

(b)  decline to invite tenders from any of the applicants.

(5)  In inviting tenders from applicants, the council must:

(a)  invite them to submit tenders to the council by the deadline specified in the invitations, and

(b)  give details of where and when tender documents relating to the proposed contract can be obtained and the purchase price of those documents.

The deadline must be a specified time on a date that is at least 21 days after the date of the invitation.

(6)  The tender documents relating to the proposed contract must comply with clause 170.

169   Selective tendering method by which recognised contractors listed by council are invited to tender for particular kinds of proposed contracts

(1)  A council that decides to use the selective tendering method referred to in clause 166 (c) for the allocation of proposed contracts of a specified kind must publish in the relevant newspapers an advertisement inviting applications from persons interested in tendering for proposed contracts of that kind so that the council may prepare a list of suitable tenderers.

(2)  Every such advertisement must include:

(a)  a brief description of the kind of work, goods, facilities, services or property concerned, and

(b)  the name of a person to whom requests for information concerning the proposed contracts may be addressed and how the person can be contacted, and

(c)  the deadline for submitting applications.

(3)  A council must consider all applications made in response to such an advertisement and, in so doing, take into account the experience of the applicants in fulfilling the requirements of, and their capacity to undertake, similar contracts.

(4)  After considering an application under this clause, the council may either:

(a)  list the applicant as a recognised contractor for some or all of the kinds of work, goods, facilities, services or property specified in the application, or

(b)  reject the application in whole or part.

(5)  In seeking tenders for a particular proposed contract, a council may invite some or all of the recognised contractors listed by it under this clause to tender for that contract and may do so on the basis of:

(a)  their capacity to fulfil the requirements of that contract, and

(b)  the number of occasions on which each contractor has previously been invited to tender for similar proposed contracts.

(6)  In inviting tenders for a proposed contract from recognised contractors listed by the council under this clause, the council must:

(a)  invite them to submit tenders to the council by the deadline specified in the invitations, and

(b)  give details of where and when tender documents relating to the proposed contract can be obtained and the purchase price of those documents.

The deadline must be a specified time on a date that is at least 21 days after the date of the invitation.

(7)  The tender documents relating to the proposed contract must comply with clause 170.

(8)  As an alternative to listing persons as recognised contractors in accordance with subclauses (1)–(4), a council may adopt a list of contractors prepared by another public authority, but only if the list was prepared by the authority following the publication of an advertisement similar to that provided for under subclause (1).

(9)  If a council adopts such a list, the persons whose names appear on the list are taken to be recognised contractors for the kinds of work, goods, facilities, services or property specified in the list.

(10)  A person who is a contractor recognised by a council ceases to be so recognised if the person informs the council in writing that the person no longer wishes to be listed as a recognised contractor for the purposes of this clause.

(11)  Nothing in this clause requires a council to take the action referred to in subclause (1) on each occasion that it decides to invite tenders under this clause.

170   Tender documents

(1)  The tender documents relating to a proposed contract must:

(a)  give details of the work to be carried out, the goods or facilities to be provided, the services to be performed or the property to be disposed of and, if the proposed contract is an instalment contract:

(i)  give details of the instalments to be paid by or to the council, and

(ii)  specify the period over which the instalments are to be paid, and

(iii)  specify the intervals between payment of the instalments, and

(b)  specify the criteria on which the assessment of tenders will be based, and

(c)  specify the name of a person to whom requests for information concerning the proposed contract may be addressed and how the person can be contacted, and

(d)  indicate whether formal tender documents must be submitted in relation to the tender and, if so, how they may be obtained, and

(e)  if the proposed contract is for the performance of domestic or other waste management services of the same kind as those performed under a contract in force immediately before the tenders are invited (an existing contract)—specify the information which must be submitted about the continuity of employment of workers employed or engaged by the contractor under the existing contract to perform the domestic or other waste management services (the existing workers).

(1A)  Without limiting subclause (1) (e), information that must be submitted is:

(a)  a statement as to whether or not the proposed contractor intends to offer the existing workers employment or engagement with the contractor if the tender is accepted, and

(b)  if employment or engagement is offered—relevant details of the terms and conditions of employment or engagement that will be offered (including details of remuneration, preservation of accrued or accruing leave and other entitlements, hours of work, working conditions and rights to negotiate working conditions under the Industrial Relations Act 1996, the conduct of training with respect to industrial rights and occupational health and safety, duration of the employment or engagement and rights with respect to trade union membership).

(2)  If a council amends tender documents after they have been issued to persons, it must take all reasonably practicable steps to inform those persons of the amendments.

(3)  Subclause (1) (e) does not apply to tender documents issued before the commencement of this subclause.

(4)  In this clause:

domestic or other waste management services means the storage, treatment, processing, collecting, removal, disposal, destruction, sorting or recycling of domestic waste and other waste.

171   Shortened tender period

(1)  A council that believes there are exceptional circumstances rendering inappropriate a deadline that would, but for this clause, be required to be specified in an advertisement under clause 167, 168 or 169 or an invitation under clause 168 (4) or 169 (6) may decide on an earlier deadline. However, the earlier deadline must be a specified time on a date that is at least 7 days after:

(a)  the date of the publication or first publication of the advertisement, or

(b)  the date of the invitation.

(2)  A council must keep a record of:

(a)  the circumstances requiring an earlier deadline to be specified in such an advertisement or invitation, and

(b)  the name of the staff member who made the decision to change the deadline (if not made by the council).

172   Extended tender period

(1)  If, having specified or included a deadline in an advertisement under clause 167, 168 or 169 or an invitation under clause 168 (4) or 169 (6), a council becomes aware of circumstances that show that the deadline may not allow enough time for meaningful tenders or applications to be submitted, it may extend the deadline by specifying a later deadline.

(2)  If, at the time of extending the deadline, the council has issued invitations to persons under clause 168 (4) or 169 (6) or has issued tender documents to persons, it must take all reasonably practicable steps to inform those persons of the later deadline.

(3)  A council must keep a record of:

(a)  the circumstances requiring a later deadline to be specified in an advertisement or invitation, and

(b)  the name of the staff member who made the decision to change the deadline (if not made by the council).

Division 3 Submission and opening of tenders

173   Submission of tenders

(1)  A tender must be submitted in writing, by facsimile transmission or (subject to subclause (2)) by electronic means.

(2)  A tender may not be submitted by electronic means:

(a)  if guidelines are in force under section 23A of the Act with respect to the transmission of tenders by electronic means—unless its submission by electronic means is authorised by, and effected in accordance with, those guidelines, and

(b)  in any other case—unless its submission by electronic means is effected by a secure mechanism (such as an encryption-based technology) that ensures that it cannot subsequently be altered.

(3)  Unless sent by facsimile transmission or electronic means, a tender must be sent or delivered in a sealed envelope.

(4)  If a tender is sent by facsimile transmission or electronic means (other than the means referred to in subclause (2) (b)), it must be printed out on receipt, and an appropriate person must place the tender in a sealed envelope immediately after it is printed out.

174   Custody of tenders after receipt

(1)  A council must:

(a)  provide a secure tender box, and

(b)  ensure that:

(i)  all tenders (except the tenders received by electronic means that have not been printed out, but including those received by facsimile transmission) submitted to it for a proposed contract are kept in the tender box, and

(ii)  the tender box, when containing tenders, is kept in a safe and secure place,

      until the envelopes containing the tenders are opened in accordance with clause 175.

(2)  A council must ensure that, whenever the council’s office is open for business, its tender box is kept in a place that allows tenderers who wish to do so to deposit their tenders personally.

(3)  Tenders received by electronic means as referred to in clause 173 (2) (b) must be stored on an information system (within the meaning of the Electronic Transactions Act 2000) in such a manner (whether by means of password protection or otherwise) that they are accessible only to an appropriate person.

175   Opening of tenders

(1)  At the time specified for the close of tenders, the appropriate person must open the tenders in the presence of:

(a)  at least 2 persons designated by the general manager for the purpose, and

(b)  such tenderers and members of the public as wish to attend the opening.

(2)  A member of the public who attends the opening of tenders for a proposed contract is entitled, on request, to be informed as to whether the council has received a particular tender and the number of tenders received.

(3)  As soon as practicable after the tenders for a proposed contract have been opened, the appropriate person:

(a)  must record the names of the tenderers and the amounts that appear to have been tendered for the contract, and

(b)  must prepare a tender list specifying the names of the tenderers in alphabetical order.

(4)  Immediately after preparing a tender list, the appropriate person must display the list in a place where it can be readily seen by members of the public. That person may add to the list such information as he or she considers appropriate.

176   Tenders may be varied in certain circumstances

(1)  At any time before a council accepts any of the tenders that it has received for a proposed contract, a person who has submitted a tender may, subject to subclause (2), vary the tender:

(a)  by providing the council with further information by way of explanation or clarification, or

(b)  by correcting a mistake or anomaly.

(2)  Such a variation may be made either:

(a)  at the request of the council, or

(b)  with the consent of the council at the request of the tenderer, but only if, in the circumstances, it appears to the council reasonable to allow the tenderer to provide the information or correct the mistake or anomaly.

(3)  If a tender is varied in accordance with this clause, the council must provide all other tenderers whose tenders have the same or similar characteristics as that tender with the opportunity of varying their tenders in a similar way.

(4)  A council must not consider a variation of a tender made under this clause if the variation would substantially alter the original tender.

(5)  A council must keep a record of:

(a)  the circumstances requiring the variation of a tender, and

(b)  the name of the staff member handling the matter.

Division 4 Determination of successful tenderer

177   Consideration of tenders

(1)  As soon as practicable after the tenders for a proposed contract have been opened, the council must assess the tenders.

(2)  A council must not consider a tender that is not submitted to the council by the deadline for the closing of tenders. This subclause is subject to subclauses (4) and (5).

(3)  A council must consider a tender transmitted to it by facsimile machine or electronic means, but only if:

(a)  in the case of transmission by electronic means, that means of transmission was specified in the relevant tender documents, and

(b)  the transmission was received before the deadline for the closing of tenders, and

(c)  the tender is complete.

(4)  However, if a council has specified in the relevant tender documents issued by the council that a tender will not be considered unless formal tender documents are submitted to the council, then (despite subclause (3)), the council is not obliged to consider a tender transmitted to it in accordance with that subclause (being a tender that does not include formal tender documents) unless:

(a)  the tenderer is able to satisfy the council that formal tender documents and all other requisite essential information were posted or lodged at a Post Office or other recognised delivery agency before the deadline for the closing of tenders, and

(b)  the council actually receives those documents within such period as it decides to be reasonable in the circumstances.

(5)  A council must also consider a tender received within such period after the deadline for the closing of tenders as it decides to be reasonable in the circumstances if the tenderer satisfies the council that the tender documents and all other requisite essential information were posted or lodged at a Post Office or other recognised delivery agency in sufficient time to enable the documents to have been received by the council in the ordinary course of business before that deadline.

178   Acceptance of tenders

(1)  After considering the tenders submitted for a proposed contract, the council must either:

(a)  accept the tender that, having regard to all the circumstances, appears to it to be the most advantageous, or

(b)  decline to accept any of the tenders.

(1A)  Without limiting subclause (1), in considering the tenders submitted for a proposed contract for the performance of domestic or other waste management services, the council must take into account whether or not existing workers (within the meaning of clause 170) will be offered employment or engagement on terms and conditions comparable to those applicable to the workers immediately before the tender was submitted.

(2)  A council must ensure that every contract it enters into as a result of a tender accepted by the council is with the successful tenderer and in accordance with the tender (modified by any variation under clause 176). However, if the successful tender was made by the council (as provided for in section 55 (2A) of the Act), the council is not required to enter into any contract in order to carry out the requirements of the proposed contract.

(3)  A council that decides not to accept any of the tenders for a proposed contract or receives no tenders for the proposed contract must, by resolution, do one of the following:

(a)  postpone or cancel the proposal for the contract,

(b)  invite, in accordance with clause 167, 168 or 169, fresh tenders based on the same or different details,

(c)  invite, in accordance with clause 168, fresh applications from persons interested in tendering for the proposed contract,

(d)  invite, in accordance with clause 169, fresh applications from persons interested in tendering for contracts of the same kind as the proposed contract,

(e)  enter into negotiations with any person (whether or not the person was a tenderer) with a view to entering into a contract in relation to the subject matter of the tender,

(f)  carry out the requirements of the proposed contract itself.

(4)  If a council resolves to enter into negotiations as referred to in subclause (3) (e), the resolution must state the following:

(a)  the council’s reasons for declining to invite fresh tenders or applications as referred to in subclause (3) (b)–(d),

(b)  the council’s reasons for determining to enter into negotiations with the person or persons referred to in subclause (3) (e).

179   Notification of acceptance of successful tender

As soon as practicable after entering into a contract in accordance with clause 178 or deciding not to accept any of the tenders for a proposed contract, a council must:

(a)  send to all tenderers whose tenders were not accepted notices to the effect that their tenders were unsuccessful or, as the case may be, that none of the tenders for the proposed contract was accepted, and

(b)  display in a conspicuous place that is accessible to members of the public a notice specifying the name of the tenderer whose tender was accepted and the amount of the successful tender or, if none of the tenders was accepted, a notice to that effect.

Part 8 Honesty and disclosure of interests

Division 1 Preliminary

180   Definitions

In this Part and Schedules 3 and 3A:

address means:

(a)  in relation to a person other than a corporation, the last residential or business address of the person known to the councillor or designated person disclosing the address, or

(b)  in relation to a corporation, the address of the registered office of the corporation in New South Wales or, if there is no such office, the address of the principal office of the corporation in the place where it is registered, or

(c)  in relation to any real property, the postal address of the property or particulars of title of the property.

disposition of property means a conveyance, transfer, assignment, settlement, delivery, payment or other alienation of property, including the following:

(a)  the allotment of shares in a company,

(b)  the creation of a trust in respect of property,

(c)  the grant or creation of a lease, mortgage, charge, easement, licence, power, partnership or interest in respect of property,

(d)  the release, discharge, surrender, forfeiture or abandonment, at law or in equity, of a debt, contract or chose in action, or of an interest in respect of property,

(e)  the exercise by a person of a general power of appointment over property in favour of another person,

(f)  a transaction entered into by a person who intends by the transaction to diminish, directly or indirectly, the value of the person’s own property and to increase the value of the property of another person.

gift means a disposition of property made otherwise than by will (whether or not by instrument in writing) without consideration, or with inadequate consideration, in money or money’s worth passing from the person to whom the disposition was made to the person who made the disposition, but does not include a financial or other contribution to travel.

interest means:

(a)  in relation to property—an estate, interest, right or power, at law or in equity, in or over the property, or

(b)  in relation to a corporation—a relevant interest (within the meaning of section 9 of the Corporations Act 2001 of the Commonwealth) in securities issued or made available by the corporation.

listed company means a company that is listed within the meaning of section 9 of the Corporations Act 2001 of the Commonwealth.

occupation includes trade, profession and vocation.

professional or business association means an incorporated or unincorporated body or organisation having as one of its objects or activities the promotion of the economic interests of its members in any occupation.

property includes money.

travel includes accommodation incidental to a journey.

181   Return dates and periods

(1)  A reference in this Part or in Schedule 3 to the return date for a return made by a person under section 449 (1) of the Act is a reference to the date on which the person became the holder of a position required to make such a return.

(2)  A reference in this Part or in Schedule 3 to the return period for a return by a person under section 449 (3) of the Act in a particular year is a reference to:

(a)  if the last return made by the person was a return under section 449 (1) of the Act, the period commencing on the first day after the return date and ending on 30 June in that particular year, or

(b)  if the last return made by a person was a return under section 449 (3) of the Act, the period commencing on the expiration of the period to which that return relates and ending on 30 June in that particular year.

182   Matters relating to the interests that must be included in returns

(1) Interests etc outside New South Wales
A reference in this Part or in Schedule 3 to a disclosure concerning a corporation or other thing includes a reference to a disclosure concerning a corporation registered, or other thing arising or received, outside New South Wales.

(2) References to interests in real property
A reference in this Part or in Schedule 3 to real property in which a councillor or designated person has an interest includes a reference to any real property situated in Australia in which the councillor or designated person has an interest.

(3) Gifts, loans etc from related corporations
For the purposes of this Part and Schedule 3, gifts or contributions to travel given, loans made, or goods or services supplied, to a councillor or designated person by two or more corporations that are related to each other for the purposes of section 50 of the Corporations Act 2001 of the Commonwealth are all given, made or supplied by a single corporation.

Division 2 Pecuniary interests to be disclosed in returns

183   Real property

(1)  A person making a return under section 449 (1) of the Act must disclose:

(a)  the address of each parcel of real property in which he or she had an interest on the return date, and

(b)  the nature of the interest.

(2)  A person making a return under section 449 (3) of the Act must disclose:

(a)  the address of each parcel of real property in which he or she had an interest at any time since the last return under Part 2 of Chapter 14 of the Act was made, and

(b)  the nature of the interest.

(3)  An interest in a parcel of real property need not be disclosed in a return if the person making the return had the interest only:

(a)  as executor of the will, or administrator of the estate, of a deceased person and not as a beneficiary under the will or intestacy, or

(b)  as a trustee, if the interest was acquired in the ordinary course of an occupation not related to his or her duties as the holder of a position required to make a return.

(4)  In this clause, interest includes an option to purchase.

184   Gifts

(1)  A person making a return under section 449 (3) of the Act must disclose:

(a)  a description of each gift received since the last return under Part 2 of Chapter 14 of the Act was made, and

(b)  the name and address of the donor of each of the gifts.

(2)  A gift need not be included in a return if:

(a)  it did not exceed $500, unless it was among gifts totalling more than $500 made by the same person during a period of 12 months or less, or

(b)  it was a political contribution disclosed, or required to be disclosed, under Part 6 of the Election Funding and Disclosures Act 1981, or

(c)  the donor was a relative of the donee.

(3)  For the purposes of this clause, the amount of a gift other than money is an amount equal to the value of the property given.

185   Contributions to travel

(1)  A person making a return under section 449 (3) of the Act must disclose:

(a)  the name and address of each person who made any financial or other contribution to the expenses of any travel undertaken by the person since the last return under Part 2 of Chapter 14 was made, and

(b)  the dates on which the travel was undertaken, and

(c)  the names of the States and Territories, and of the overseas countries, in which the travel was undertaken.

(2)  A financial or other contribution to any travel need not be disclosed under this clause if it:

(a)  was made from public funds (including a contribution arising from travel on free passes issued under an Act or from travel in government or council vehicles), or

(b)  was made by a relative of the traveller, or

(c)  was made in the ordinary course of an occupation of the traveller that is not related to his or her functions as the holder of a position requiring the making of a return, or

(d)  did not exceed $250, unless it was among gifts totalling more than $250 made by the same person during a 12 month period or less, or

(e)  was a political contribution disclosed, or required to be disclosed, under Part 6 of the Election Funding Act 1981, or

(f)  was made by a political party of which the traveller was a member and the travel was undertaken for the purpose of political activity of the party in New South Wales or to enable the traveller to represent the party within Australia.

(3)  For the purposes of this clause, the amount of a contribution (other than a financial contribution) is an amount equal to the value of the contribution.

186   Interests and positions in corporations

(1)  A person making a return must disclose:

(a)  the name and address of each corporation in which he or she had an interest or held a position (whether remunerated or not) on the return date (in the case of a return under section 449 (1) of the Act) or at any time since the last return under Part 2 of Chapter 14 of the Act was made (in the case of a return under section 449 (3) of the Act), and

(b)  the nature of the interest, or the position held, in each of the corporations, and

(c)  a description of the principal objects (if any) of each of the corporations, except in the case of a listed company.

(2)  An interest in, or a position held in, a corporation need not be disclosed if the corporation is:

(a)  formed for the purpose of providing recreation or amusement or for promoting commerce, industry, art, science, religion or charity, or for any other community purpose, and

(b)  required to apply its profits or other income in promoting its objects, and

(c)  prohibited from paying any dividend to its members.

(3)  An interest in a corporation need not be disclosed if the interest is a beneficial interest in shares in a company that does not exceed 10 per cent of the voting rights in the company.

187   Positions in trade unions and professional or business associations

A person making a return must disclose:

(a)  the name of each trade union, and of each professional or business association, in which he or she held any position (whether remunerated or not) on the return date (in the case of a return under section 449 (1) of the Act) or at any time since the last return under Part 2 of Chapter 14 was made (in the case of a return under section 449 (3) of the Act), and

(b)  a description of the position held in each of the unions and associations.

188   Dispositions of real property

(1)  A person making a return under section 449 (3) of the Act must disclose particulars of each disposition of real property by the person, at any time since the last return under Part 2 of Chapter 14 of the Act was made, under which he or she wholly or partly retained the use and benefit of the property or the right to re-acquire the property.

(2)  A person making a return under section 449 (3) of the Act must disclose particulars of each disposition of real property to another person, since the last return under Part 2 of Chapter 14 of the Act was made, that is made under arrangements with, but is not made by, the person making the return, being a disposition under which the person making the return obtained wholly or partly the use of the property.

189   Sources of income

(1)  A person making a return must disclose:

(a)  in the case of a return under section 449 (1) of the Act—each source of income that the person reasonably expects to receive in the period commencing on the first day after the return date and ending on the following 30 June, and

(b)  in the case of a return under section 449 (3) of the Act—each source of income received by the person since the last return under Part 2 of Chapter 14 of the Act was made.

(2)  A reference in subclause (1) to each source of income received, or reasonably expected to be received, by a person is a reference to:

(a)  in relation to income from an occupation of the person:

(i)  a description of the occupation, and

(ii)  if the person is employed or the holder of an office, the name and address of his or her employer or a description of the office, and

(iii)  if the person has entered into a partnership with other persons, the name (if any) under which the partnership is conducted, or

(b)  in relation to income from a trust, the name and address of the settlor and the trustee, or

(c)  in relation to any other income, a description sufficient to identify the person from whom, or the circumstances in which, the income was, or is reasonably expected to be, received.

(3)  The source of any income need not be disclosed by a person in a return if the amount of the income received, or reasonably expected to be received, by the person from that source did not exceed $500, or is not reasonably expected to exceed $500, as the case may be.

190   Debts

(1)  A person making a return must disclose the name and address of each person to whom the person was liable to pay any debt:

(a)  in the case of a return under section 449 (1) of the Act—on the return date, or

(b)  in the case of a return under section 449 (3) of the Act—at any time since the last return under Part 2 of Chapter 14 of the Act was made.

(2)  A liability to pay a debt must be disclosed by a person in a return whether or not the amount, or any part of the amount, to be paid was due and payable on the return date or at any time since the last return under Part 2 of Chapter 14 of the Act was made, as the case may be.

(3)  A liability to pay a debt need not be disclosed by a person in a return if:

(a)  the amount to be paid did not exceed $500 on the return date or at any time since the last return under Part 2 of Chapter 14 of the Act was made, as the case may be, unless:

(i)  the debt was one of two or more debts that the person was liable to pay to one person on the return date or at any time since the last return was made, as the case may be, and

(ii)  the amounts to be paid exceeded, in the aggregate, $500, or

(b)  the person was liable to pay the debt to a relative, or

(c)  in the case of a debt arising from a loan of money the person was liable to pay the debt to an authorised deposit-taking institution or other person whose ordinary business includes the lending of money and the loan was made in the ordinary course of business of the lender, or

(d)  in the case of a debt arising from the supply of goods or services:

(i)  the goods or services were supplied in the period of 12 months immediately preceding the return date or were supplied since the last return under Part 2 of Chapter 14 of the Act was made, as the case may be, or

(ii)  the goods or services were supplied in the ordinary course of any occupation of the person that is not related to his or her duties as the holder of a position required to make a return.

191   Discretionary disclosures

A person may voluntarily disclose in a return any interest, benefit, advantage or liability, whether pecuniary or not, that is not required to be disclosed under another provision of this Part.

Division 3 Form of return

192   Form of return

For the purposes of section 449 of the Act, the form set out in Schedule 3 is prescribed.

Division 4 Conduct generally

193   Model code of conduct and model procedure

(1)  For the purposes of section 440 of the Act, the document entitled The Model Code of Conduct for Local Councils in NSW published in the Gazette on 7 December 2012 is prescribed as the model code of conduct.

(2)  For the purposes of section 440AA of the Act, the document entitled Procedures for the Administration of the Model Code of Conduct for Local Councils in NSW published in the Gazette on 7 December 2012 is prescribed as the model procedure.

194   Acts of disorder

For the purposes of Chapter 14 (Honesty and disclosure of interests) of, and Schedule 6A (Code of conduct) to, the Act, the acts of disorder specified in clause 256 (1) are prescribed as acts of disorder.

Division 5 Appeals against suspension

195   Making of appeal

An appeal under section 440L of the Act is to be made:

(a)  in accordance with any relevant procedures set out in the Pecuniary Interest and Disciplinary Tribunal Procedure Manual published by the Pecuniary Interest and Disciplinary Tribunal, as in force from time to time, or

(b)  if there are no such relevant procedures (or no such manual)—by giving written notice of the appeal to that Tribunal.

Division 6 Special disclosure of pecuniary interests in meetings

195A   Special disclosure of pecuniary interests in meetings

(1)  A special disclosure of the pecuniary interest under section 451 of the Act must be in the form set out in Schedule 3A and must contain the information required by that form.

(2)  If a special disclosure of a pecuniary interest is made at a meeting of a council or council committee, a copy of the special disclosure is to be recorded in the minutes of the meeting.

Part 9 Management and accountability

Division 1 Preliminary

196   Definitions

In this Part:

accounting records of a council means the records that section 412 of the Act requires the council to keep, and includes any cash receipt record, assets register, contracts register, stores register or ledger, debtors’ ledger and creditors’ ledger.

Code means the Local Government Code of Accounting Practice and Financial Reporting published by the Department, as in force from time to time.

Departmental representative means a person authorised under section 430 of the Act.

estimate includes any sub-estimate that an estimate is required to contain.

Manual means the Local Government Asset Accounting Manual published by the Department, as in force from time to time.

quarter means the period of 3 months ending on 30 September, 31 December, 31 March or 30 June.

records includes books, registers, deeds and documents, and any other sources of information compiled, recorded or stored in written form or on microfilm, or by electronic process, or in any other manner or by any other means.

responsible accounting officer of a council means:

(a)  a member of the staff of the council designated by the general manager, or

(b)  if no such member has been designated, the general manager.

Division 2

197–200A(Repealed)

Division 3 Budgeting by councils

201   Annual statement of council’s revenue policy

(1)  The statement of a council’s revenue policy for a year that is required to be included in an operational plan under section 405 of the Act must include the following statements:

(a)  a statement containing a detailed estimate of the council’s income and expenditure,

(b)  a statement with respect to each ordinary rate and each special rate proposed to be levied,

Note. The annual statement of revenue policy may include a note that the estimated yield from ordinary rates is subject to the specification of a percentage variation by the Minister if that variation has not been published in the Gazette when public notice of the annual statement of revenue policy is given.

(c)  a statement with respect to each charge proposed to be levied,

(d)  a statement of the types of fees proposed to be charged by the council and, if the fee concerned is a fee to which Division 3 of Part 10 of Chapter 15 of the Act applies, the amount of each such fee,

(e)  a statement of the council’s proposed pricing methodology for determining the prices of goods and the approved fees under Division 2 of Part 10 of Chapter 15 of the Act for services provided by it, being an avoidable costs pricing methodology determined by the council in accordance with guidelines issued by the Director-General,

(f)  a statement of the amounts of any proposed borrowings (other than internal borrowing), the sources from which they are proposed to be borrowed and the means by which they are proposed to be secured.

(2)  The statement with respect to an ordinary or special rate proposed to be levied must include the following particulars:

(a)  the ad valorem amount (the amount in the dollar) of the rate,

(b)  whether the rate is to have a base amount and, if so:

(i)  the amount in dollars of the base amount, and

(ii)  the percentage, in conformity with section 500 of the Act, of the total amount payable by the levying of the rate, or, in the case of the rate, the rate for the category or sub-category concerned of the ordinary rate, that the levying of the base amount will produce,

(c)  the estimated yield of the rate,

(d)  in the case of a special rate—the purpose for which the rate is to be levied,

(e)  the categories or sub-categories of land in respect of which the council proposes to levy the rate.

(3)  The statement with respect to each charge proposed to be levied must include the following particulars:

(a)  the amount or rate per unit of the charge,

(b)  the differing amounts for the charge, if relevant,

(c)  the minimum amount or amounts of the charge, if relevant,

(d)  the estimated yield of the charge,

(e)  in relation to an annual charge for the provision by the council of coastal protection services (if any)—a map or list (or both) of the parcels of rateable land that are to be subject to the charge.

(4)  The statement of fees and the statement of the pricing methodology need not include information that could confer a commercial advantage on a competitor of the council.

202   Responsible accounting officer to maintain system for budgetary control

The responsible accounting officer of a council must:

(a)  establish and maintain a system of budgetary control that will enable the council’s actual income and expenditure to be monitored each month and to be compared with the estimate of the council’s income and expenditure, and

(b)  if any instance arises where the actual income or expenditure of the council is materially different from its estimated income or expenditure, report the instance to the next meeting of the council.

203   Budget review statements and revision of estimates

(1)  Not later than 2 months after the end of each quarter (except the June quarter), the responsible accounting officer of a council must prepare and submit to the council a budget review statement that shows, by reference to the estimate of income and expenditure set out in the statement of the council’s revenue policy included in the operational plan for the relevant year, a revised estimate of the income and expenditure for that year.

(2)  A budget review statement must include or be accompanied by:

(a)  a report as to whether or not the responsible accounting officer believes that the statement indicates that the financial position of the council is satisfactory, having regard to the original estimate of income and expenditure, and

(b)  if that position is unsatisfactory, recommendations for remedial action.

(3)  A budget review statement must also include any information required by the Code to be included in such a statement.

Division 4 Councils’ funds

204   Council to establish and maintain accounts with authorised deposit-taking institutions

A council must establish and maintain at least one account with an authorised deposit-taking institution for its consolidated fund and at least one account with an authorised deposit-taking institution for its trust fund.

205   Withdrawal of certain money

A council must ensure that the following classes of money are withdrawn for use only for the purpose for which it is held or for investment in accordance with section 625 of the Act:

(a)  money that the council must set aside to repay the principal outstanding on loans made to the council on interest-only terms,

(b)  money lent to the council not yet expended for the purpose for which the money was obtained,

(c)  money that the council must set aside to meet outstanding claims to be met by the council under any self-insurance scheme that the council operates.

Note. Section 409 (3) of the Act contains requirements in respect of the use of other classes of money. Those classes are:

(a)  money received as a result of levying a special rate or charge,

(b)  money that is, by the provisions of an Act, required to be set aside for a specific purpose,

(c)  money received from the Government or a public authority for a specific purpose.

Section 625 of the Act specifies the way in which a council may invest its surplus funds.

Division 5 Accounting records and accounting practices

206   Accounting records and accounting practices to accord with the Code

(1)  A council’s accounting records must be kept in a form that accords with the Code.

(2)  A council’s accounting practices must accord with the Code.

Note. Section 412 of the Act contains the general requirements for the keeping of a council’s accounting records.

207   Responsibility for accounting records

(1)  The responsible accounting officer of a council is responsible for keeping the council’s accounting records.

(2)  The responsible accounting officer must ensure that the accounting records are kept up-to-date and in an accessible form.

(3)  The responsible accounting officer must take all reasonable measures to ensure that:

(a)  all money payable to the council is collected or recovered promptly, and

(b)  appropriate arrangements are implemented for the security and banking of money received by the council, and

(c)  the assets of or under the control of the council are properly accounted for, and

(d)  liabilities are incurred by the council only with the authority of the council and the council’s funds are properly spent in meeting those liabilities, and

(e)  appropriate budgeting and accounting systems (including internal control systems) are established and maintained for the purposes of the council, and

(f)  adequate measures are taken to protect the council’s valuable securities and accounting records from loss, destruction, damage and theft.

208   Production of accounting records

A member of the staff of a council who has control of any of the council’s accounting records must:

(a)  produce those records for inspection and audit in proper order whenever directed or requested to do so by the council’s mayor, responsible accounting officer, general manager (if not the council’s responsible accounting officer) or auditor or by a Departmental representative, and

(b)  render all practicable assistance to the mayor, responsible accounting officer, general manager, auditor or Departmental representative with respect to those records.

209   Particular responsibilities of the general manager

The general manager of a council must ensure that:

(a)  the provisions of the Act, this Regulation and any other written law relating to councils’ financial obligations or the keeping of accounts by councils are complied with, and

(b)  effective measures are taken to secure the effective, efficient and economical management of financial operations within each division of the council’s administration, and

(c)  authorising and recording procedures are established to provide effective control over the council’s assets, liabilities, revenue and expenditure and secure the accuracy of the accounting records, including a proper division of accounting responsibilities among the council’s staff, and

(d)  lines of authority and the responsibilities of members of the council’s staff for related tasks are clearly defined.

210   Council to rectify defects in internal control systems

On becoming aware:

(a)  that the systems for properly accounting for the receipt, investment, handling or expenditure of money by a council are defective or inadequate, or

(b)  that the existing systems established for those purposes are not being complied with,

the Director-General may, by notice in writing served on the council, direct the council to remedy the defect or inadequacy, or to comply with the existing systems. The council must comply with such a direction.

Note. Failure to comply with a direction under this clause may lead to an investigation being held under Part 5 of Chapter 13 of the Act.

211   Authorisation of expenditure

(1)  A council, or a person purporting to act on behalf of a council, must not incur a liability for the expenditure of money unless the council at the annual meeting held in accordance with subclause (2) or at a later ordinary meeting:

(a)  has approved the expenditure, and

(b)  has voted the money necessary to meet the expenditure.

(2)  A council must each year hold a meeting for the purpose of approving expenditure and voting money.

(3)  All such approvals and votes lapse at the end of a council’s financial year. However, this subclause does not apply to approvals and votes relating to:

(a)  work carried out or started, or contracted to be carried out, for the council, or

(b)  any service provided, or contracted to be provided, for the council, or

(c)  goods or materials provided, or contracted to be provided, for the council, or

(d)  facilities provided or started, or contracted to be provided, for the council,

      before the end of the year concerned, or to the payment of remuneration to members of the council’s staff.

212   Reports on council investments

(1)  The responsible accounting officer of a council:

(a)  must provide the council with a written report (setting out details of all money that the council has invested under section 625 of the Act) to be presented:

(i)  if only one ordinary meeting of the council is held in a month, at that meeting, or

(ii)  if more than one such meeting is held in a month, at whichever of those meetings the council by resolution determines, and

(b)  must include in the report a certificate as to whether or not the investment has been made in accordance with the Act, the regulations and the council’s investment policies.

(2)  The report must be made up to the last day of the month immediately preceding the meeting.

Note. Section 625 of the Act specifies the way in which a council may invest its surplus funds.

213   Restrictions on writing off debts to a council

(1)  This clause does not apply to amounts owed to a council for rates or other charges for which the Act, or any other regulation in force under the Act, makes specific provision for writing off those amounts in specified circumstances.

(2)  A council must from time to time, by resolution, fix an amount above which debts to the council may be written off only by resolution of the council.

(3)  A debt of or below that amount can be written off either by resolution of the council or by order in writing of the council’s general manager. In the absence of a resolution under subclause (2), the council’s debts can be written off only by resolution of the council.

(4)  A resolution or order writing off a debt to a council must:

(a)  specify the name of the person whose debt is being written off, and

(b)  identify the account concerned, and

(c)  specify the amount of the debt,

      or must refer to a record kept by the council in which those particulars are recorded.

(5)  A debt can be written off under this clause only:

(a)  if the debt is not lawfully recoverable, or

(b)  as a result of a decision of a court, or

(c)  if the council or the general manager believes on reasonable grounds that an attempt to recover the debt would not be cost effective.

(6)  The fact that a debt is written off under this clause does not prevent the council concerned from taking legal proceedings to recover the debt.

Division 6 Annual financial reports

214   Additional requirements for preparation of a council’s financial reports

(1)  For the purpose of section 413 (2) (b) of the Act, any matters required by the Code or the Manual to be included in a council’s financial reports are prescribed matters.

(2)  For the purpose of section 413 (3) (b) of the Act, the Code and the Manual are prescribed standards.

215   Statement by a council on its annual financial reports

(1)  The statement required by section 413 (2) (c) of the Act must:

(a)  be made by resolution of the council, and

(b)  be signed by:

(i)  the mayor, and

(ii)  at least one other member of the council, and

(iii)  the responsible accounting officer, and

(iv)  the general manager (if not the responsible accounting officer).

(2)  The statement must indicate:

(a)  whether or not the council’s annual financial reports have been drawn up in accordance with:

(i)  the Act and this Regulation, and

(ii)  the Code and the Manual, and

(iii)  the Australian Accounting Standards issued by the Australian Accounting Standards Board, and

(b)  whether or not those reports present fairly the council’s financial position and operating result for the year, and

(c)  whether or not those reports accord with the council’s accounting and other records, and

(d)  whether or not the signatories know of anything that would make those reports false or misleading in any way,

      and include such information and explanations as will prevent those reports from being misleading because of any qualification that is included in the statement.

(3)  The council must ensure that the statement is attached to the relevant annual financial reports.

216   Council’s annual financial reports to be amended in certain cases

(1)  If the Director-General, by notice in writing served on a council, directs the council to amend its annual financial reports in a way specified in the notice, the council must comply with the direction as soon as practicable after service of the notice.

(2)  A council that amends its annual financial reports to give effect to such a direction must give public notice of the amendment in a newspaper circulating in its area. The council must specify in the notice that any member of the public is entitled to inspect, without fee, the amended financial reports at each of the council’s offices during the council’s ordinary office hours.

Division 7 Annual reports

Subdivision 1 Additional information—general

217   Additional information for inclusion in annual report

(1)  For the purposes of section 428 (4) (b) of the Act, an annual report of a council is to include the following information:

(a)  details (including the purpose) of overseas visits undertaken during the year by councillors, council staff or other persons while representing the council (including visits sponsored by other organisations),

(a1)  details of the total cost during the year of the payment of the expenses of, and the provision of facilities to, councillors in relation to their civic functions (as paid by the council, reimbursed to the councillor or reconciled with the councillor), including separate details on the total cost of each of the following:

(i)  the provision during the year of dedicated office equipment allocated to councillors on a personal basis, such as laptop computers, mobile telephones and landline telephones and facsimile machines installed in councillors’ homes (including equipment and line rental costs and internet access costs but not including call costs),

(ii)  telephone calls made by councillors, including calls made from mobile telephones provided by the council and from landline telephones and facsimile services installed in councillors’ homes,

(iii)  the attendance of councillors at conferences and seminars,

(iv)  the training of councillors and the provision of skill development for councillors,

(v)  interstate visits undertaken during the year by councillors while representing the council, including the cost of transport, the cost of accommodation and other out-of-pocket travelling expenses,

(vi)  overseas visits undertaken during the year by councillors while representing the council, including the cost of transport, the cost of accommodation and other out-of-pocket travelling expenses,

(vii)  the expenses of any spouse, partner (whether of the same or the opposite sex) or other person who accompanied a councillor in the performance of his or her civic functions, being expenses payable in accordance with the Guidelines for the payment of expenses and the provision of facilities for Mayors and Councillors for Local Councils in NSW prepared by the Director-General from time to time,

(viii)  expenses involved in the provision of care for a child of, or an immediate family member of, a councillor, to allow the councillor to undertake his or her civic functions,

(a2)  details of each contract awarded by the council during that year (whether as a result of tender or otherwise) other than:

(i)  employment contracts (that is, contracts of service but not contracts for services), and

(ii)  contracts for less than $150,000 or such other amount as may be prescribed by the regulations,

      including the name of the contractor, the nature of the goods or services supplied by the contractor and the total amount payable to the contractor under the contract,

(a3)  a summary of the amounts incurred by the council during the year in relation to legal proceedings taken by or against the council (including amounts, costs and expenses paid or received by way of out of court settlements, other than those the terms of which are not to be disclosed) and a summary of the state of progress of each legal proceeding and (if it has been finalised) the result,

(a4)  details or a summary (as required by section 67 (3) of the Act) of resolutions made during that year under section 67 of the Act concerning work carried out on private land and details or a summary of such work if the cost of the work has been fully or partly subsidised by the council, together with a statement of the total amount by which the council has subsidised any such work during that year,

(a5)  the total amount contributed or otherwise granted under section 356 of the Act,

(a6)  a statement of all external bodies that during that year exercised functions delegated by the council,

(a7)  a statement of all corporations, partnerships, trusts, joint ventures, syndicates or other bodies (whether or not incorporated) in which the council (whether alone or in conjunction with other councils) held a controlling interest during that year,

(a8)  a statement of all corporations, partnerships, trusts, joint ventures, syndicates or other bodies (whether or not incorporated) in which the council participated during that year,

(a9)  a statement of the activities undertaken by the council during that year to implement its equal employment opportunity management plan,

(b)  a statement of the total remuneration comprised in the remuneration package of the general manager during the year that is to include the total of the following:

(i)  the total value of the salary component of the package,

(ii)  the total amount of any bonus payments, performance payments or other payments made to the general manager that do not form part of the salary component of the general manager,

(iii)  the total amount payable by the council by way of the employer’s contribution or salary sacrifice to any superannuation scheme to which the general manager may be a contributor,

(iv)  the total value of any non-cash benefits for which the general manager may elect under the package,

(v)  the total amount payable by the council by way of fringe benefits tax for any such non-cash benefits,

(c)  a statement of the total remuneration comprised in the remuneration packages of all senior staff members (other than the general manager) employed during the year, expressed as the total remuneration of all the senior staff members concerned (not of the individual senior staff members) and including totals of each of the following:

(i)  the total of the values of the salary components of their packages,

(ii)  the total amount of any bonus payments, performance payments or other payments made to them that do not form part of the salary components of their packages,

(iii)  the total amount payable by the council by way of the employer’s contribution or salary sacrifice to any superannuation scheme to which any of them may be a contributor,

(iv)  the total value of any non-cash benefits for which any of them may elect under the package,

(v)  the total amount payable by the council by way of fringe benefits tax for any such non-cash benefits,

(d)  (Repealed)

(e)  if the council has levied an annual charge for stormwater management services—a statement detailing the stormwater management services provided by the council during that year,

(e1)  if the council has levied an annual charge for coastal protection services—a statement detailing the coastal protection services provided by the council during that year,

(f)  a detailed statement, prepared in accordance with such guidelines as may be issued by the Director-General from time to time, of the council’s activities during the year in relation to enforcing, and ensuring compliance with, the provisions of the Companion Animals Act 1998 and the regulations under that Act.

(2)–(3)  (Repealed)

Subdivision 2

(Repealed)

Division 8 County councils

218   Application of planning and reporting provisions to county councils

Part 2 (Strategic planning) of Chapter 13 of the Act applies to county councils with the following exceptions and modifications:

(a)  section 402 (Community strategic plan) does not apply to county councils,

(b)  each county council is required to have a business activity strategic plan as provided by clause 219,

(c)  a reference in a provision of that Part to a community strategic plan is (in the application of the provision to and in respect of a county council) to be read as a reference to a business activity strategic plan.

219   Business activity strategic plan of county council

(1)  A business activity strategic plan is a plan developed and endorsed by a county council that:

(a)  identifies the main business activity priorities of the council covering a period of at least 10 years from when the plan is endorsed, and

(b)  establishes strategic objectives together with strategies for achieving those objectives, and

(c)  has been developed having due regard to the community strategic plans of the county council’s constituent councils and in consultation with those councils.

(2)  Following an ordinary election of councillors for the constituent councils of a county council, the county council must review the business activity strategic plan before 30 June following the election. The council may endorse the existing plan, endorse amendments to the existing plan or develop and endorse a new business activity strategic plan, as appropriate to ensure that the council has a business activity strategic plan covering at least the next 10 years.

(3)  Within 28 days after a business activity strategic plan is endorsed, the council must post a copy of the plan on the council’s website and provide a copy to the Director-General. A copy of a business activity strategic plan may be provided to the Director-General by notifying the Minister of the appropriate URL link to access the plan on the council’s website.

220–226   (Repealed)

Division 9 Miscellaneous

227   Matters to be taken into consideration by auditor

For the purposes of section 415 (3) of the Act, the matters that an auditor must consider and provide comment on in auditing a council’s financial reports are the matters that the Code requires an auditor to consider and provide comment on.

228   Half-yearly inspection of council’s accounting records

(1)  For the purposes of section 426 (1) (b) of the Act, the prescribed periods are after the first 6 months of each financial year.

(2)  The responsible accounting officer of a council must:

(a)  ensure that, within 1 month after the first 6 months of each financial year, the council’s ledgers are balanced and a list of ledger balances is prepared so as to enable the council’s auditor to conduct a six-monthly inspection of the council’s accounting records, and

(b)  as soon as practicable afterwards, notify the council’s auditor that those records are available for inspection.

229   Loans to council to be charge on the council’s income

The repayment of money borrowed by a council (whether by way of overdraft or otherwise), and the payment of any interest on that money, is a charge on the income of the council.

230   General manager to notify borrowings to Director-General

(1)  Within 7 days after a council borrows money under a loan contract, the general manager must notify the Director-General of the borrowing.

(2)  This clause extends to further advances made to a council under an existing loan contract, but does not apply to a borrowing by a council by way of overdraft.

Part 10 Meetings

Division 1 Preliminary

231   Definitions

In this Part:

amendment, in relation to an original motion, means a motion moving an amendment to that motion.

chairperson:

(a)  in relation to a meeting of a council—means the person presiding at the meeting as provided by section 369 of the Act, and

(b)  in relation to a meeting of a committee of a council—means the person presiding at the meeting as provided by clause 267.

committee, in relation to a council, means a committee established under clause 260 or the council when it has resolved itself into a committee of the whole.

councillor includes a member of the governing body of a county council.

Division 2 Convening of, and attendance at, council meetings

232   Notice of meetings

(1)  This clause prescribes the manner in which the requirements outlined in section 9 (1) of the Act are to be complied with.

(2)  A notice of a meeting of a council or of a committee must be published in a newspaper circulating in the area before the meeting takes place.

(3)  The notice must specify the time and place of the meeting.

(4)  Notice of more than one meeting may be given in the same notice.

(5)  This clause does not apply to an extraordinary meeting of a council or committee.

233   What happens when a quorum is not present

(1)  A meeting of a council must be adjourned if a quorum is not present:

(a)  within half an hour after the time designated for the holding of the meeting, or

(b)  at any time during the meeting.

(2)  In either case, the meeting must be adjourned to a time, date and place fixed:

(a)  by the chairperson, or

(b)  in his or her absence—by the majority of the councillors present, or

(c)  failing that, by the general manager.

(3)  The general manager must record in the council’s minutes the circumstances relating to the absence of a quorum (including the reasons for the absence of a quorum) at or arising during a meeting of the council, together with the names of the councillors present.

234   Minister to convene meetings in certain cases

(1)  Whenever an area is constituted or reconstituted, the Minister is required:

(a)  to convene the first meeting of the council of the area, and

(b)  to nominate the business to be transacted at the meeting, and

(c)  to give the councillors notice of the meeting.

(2)  If there is no quorum at that meeting, the Minister may convene meetings in the same manner until a quorum is present.

(3)  The council must transact the business nominated by the Minister for a meeting convened under this clause.

235   Presence at council meetings

A councillor cannot participate in a meeting of a council unless personally present at the meeting.

235A   Leave of absence

(1)  A councillor’s application for leave of absence from council meetings should, if practicable, identify (by date) the meetings from which the councillor intends to be absent.

(2)  A councillor who intends to attend a council meeting despite having been granted leave of absence should, if practicable, give the general manager at least 2 days’ notice of his or her intention to attend.

Division 3 Procedure for the conduct of council meetings

236   Councillor to be elected to preside at certain meetings

(1)  If no chairperson is present at a meeting of a council at the time designated for the holding of the meeting, the first business of the meeting must be the election of a chairperson to preside at the meeting.

Note. Section 369 (2) of the Act provides for a councillor to be elected to chair a meeting of a council when the mayor and deputy mayor are absent.

(2)  The election must be conducted:

(a)  by the general manager or, in his or her absence, an employee of the council designated by the general manager to conduct the election, or

(b)  if neither of them is present at the meeting or there is no general manager or designated employee—by the person who called the meeting or a person acting on his or her behalf.

(3)  If, at an election of a chairperson, 2 or more candidates receive the same number of votes and no other candidate receives a greater number of votes, the chairperson is to be the candidate whose name is chosen by lot.

(4)  For the purposes of subclause (3), the person conducting the election must:

(a)  arrange for the names of the candidates who have equal numbers of votes to be written on similar slips, and

(b)  then fold the slips so as to prevent the names from being seen, mix the slips and draw one of the slips at random.

(5)  The candidate whose name is on the drawn slip is the candidate who is to be the chairperson.

237   Chairperson to have precedence

When the chairperson rises during a meeting of a council:

(a)  any councillor then speaking or seeking to speak must, if standing, immediately resume his or her seat, and

(b)  every councillor present must be silent to enable the chairperson to be heard without interruption.

238   Chairperson’s duty with respect to motions

(1)  It is the duty of the chairperson at a meeting of a council to receive and put to the meeting any lawful motion that is brought before the meeting.

(2)  The chairperson must rule out of order any motion that is unlawful or the implementation of which would be unlawful.

(3)  Any motion, amendment or other matter that the chairperson has ruled out of order is taken to have been rejected.

239   Order of business

(1)  At a meeting of a council (other than an extraordinary meeting), the general order of business is (except as provided by this Regulation) as fixed by the council’s code of meeting practice or (if the council does not have a code of meeting practice or its code of meeting practice does not fix the general order of business) as fixed by resolution of the council.

(2)  The order of business fixed under subclause (1) may be altered if a motion to that effect is passed. Such a motion can be moved without notice.

(3)  Despite clause 250, only the mover of a motion referred to in subclause (2) may speak to the motion before it is put.

240   Agenda and business papers for council meetings

(1)  The general manager must ensure that the agenda for a meeting of the council states:

(a)  all matters to be dealt with arising out of the proceedings of former meetings of the council, and

(b)  if the mayor is the chairperson—any matter or topic that the chairperson proposes, at the time when the agenda is prepared, to put to the meeting, and

(c)  subject to subclause (2), any business of which due notice has been given.

(2)  The general manager must not include in the agenda for a meeting of the council any business of which due notice has been given if, in the opinion of the general manager, the business is (or the implementation of the business would be) unlawful. The general manager must report (without giving details of the item of business) any such exclusion to the next meeting of the council.

(3)  The general manager must cause the agenda for a meeting of the council or a committee of the council to be prepared as soon as practicable before the meeting.

(4)  The general manager must ensure that the details of any item of business to which section 9 (2A) of the Act applies are included in a business paper for the meeting concerned.

(5)  Nothing in this clause limits the powers of the chairperson under clause 243.

241   Giving notice of business

(1)  A council must not transact business at a meeting of the council:

(a)  unless a councillor has given notice of the business in writing within such time before the meeting as is fixed by the council’s code of meeting practice or (if the council does not have a code of meeting practice or its code of meeting practice does not fix that time) as is fixed by resolution of the council, and

(b)  unless notice of the business has been sent to the councillors in accordance with section 367 of the Act.

(2)  Subclause (1) does not apply to the consideration of business at a meeting if the business:

(a)  is already before, or directly relates to a matter that is already before, the council, or

(b)  is the election of a chairperson to preside at the meeting as provided by clause 236 (1), or

(c)  is a matter or topic put to the meeting by the chairperson in accordance with clause 243, or

(d)  is a motion for the adoption of recommendations of a committee of the council.

(3)  Despite subclause (1), business may be transacted at a meeting of a council even though due notice of the business has not been given to the councillors. However, this can happen only if:

(a)  a motion is passed to have the business transacted at the meeting, and

(b)  the business proposed to be brought forward is ruled by the chairperson to be of great urgency.

Such a motion can be moved without notice.

(4)  Despite clause 250, only the mover of a motion referred to in subclause (3) can speak to the motion before it is put.

242   Agenda for extraordinary meetings

(1)  The general manager must ensure that the agenda for an extraordinary meeting of a council deals only with the matters stated in the notice of the meeting.

(2)  Despite subclause (1), business may be transacted at an extraordinary meeting of a council even though due notice of the business has not been given to the councillors. However, this can happen only if:

(a)  a motion is passed to have the business transacted at the meeting, and

(b)  the business proposed to be brought forward is ruled by the chairperson to be of great urgency.

Such a motion can be moved without notice but only after the business notified in the agenda for the meeting has been disposed of.

(3)  Despite clause 250, only the mover of a motion referred to in subclause (2) can speak to the motion before it is put.

243   Official minutes

(1)  If the mayor is the chairperson at a meeting of a council, the chairperson is, by minute signed by the chairperson, entitled to put to the meeting without notice any matter or topic that is within the jurisdiction of the council or of which the council has official knowledge.

(2)  Such a minute, when put to the meeting, takes precedence over all business on the council’s agenda for the meeting. The chairperson (but only if the chairperson is the mayor) may move the adoption of the minute without the motion being seconded.

(3)  A recommendation made in a minute of the chairperson (being the mayor) or in a report made by a council employee is, so far as adopted by the council, a resolution of the council.

244   Report of a Departmental representative to be tabled at council meeting

When a report of a Departmental representative has been presented to a meeting of a council in accordance with section 433 of the Act, the council must ensure that the report:

(a)  is laid on the table at that meeting, and

(b)  is subsequently available for the information of councillors and members of the public at all reasonable times.

245   Notice of motion—absence of mover

In the absence of a councillor who has placed a notice of motion on the agenda for a meeting of a council:

(a)  any other councillor may move the motion at the meeting, or

(b)  the chairperson may defer the motion until the next meeting of the council at which the motion can be considered.

246   Motions to be seconded

A motion or an amendment cannot be debated unless or until it has been seconded. This clause is subject to clauses 243 (2) and 250 (5).

247   How subsequent amendments may be moved

If an amendment has been rejected, a further amendment can be moved to the motion to which the rejected amendment was moved, and so on, but no more than one motion and one proposed amendment can be before the council at any one time.

248   Motions of dissent

(1)  A councillor can, without notice, move to dissent from the ruling of the chairperson on a point of order. If that happens, the chairperson must suspend the business before the meeting until a decision is made on the motion of dissent.

(2)  If a motion of dissent is passed, the chairperson must proceed with the suspended business as though the ruling dissented from had not been given. If, as a result of the ruling, any motion or business has been discharged as out of order, the chairperson must restore the motion or business to the agenda and proceed with it in due course.

(3)  Despite clause 250, only the mover of a motion of dissent and the chairperson can speak to the motion before it is put. The mover of the motion does not have a right of general reply.

249   Questions may be put to councillors and council employees

(1)  A councillor:

(a)  may, through the chairperson, put a question to another councillor, and

(b)  may, through the general manager, put a question to a council employee.

(2)  However, a councillor or council employee to whom a question is put is entitled to be given reasonable notice of the question and, in particular, sufficient notice to enable reference to be made to other persons or to documents.

(3)  The councillor must put every such question directly, succinctly and without argument.

(4)  The chairperson must not permit discussion on any reply or refusal to reply to a question put to a councillor or council employee under this clause.

250   Limitation as to number of speeches

(1)  A councillor who, during a debate at a meeting of a council, moves an original motion has the right of general reply to all observations that are made by another councillor during the debate in relation to the motion and to any amendment to it, as well as the right to speak on any such amendment.

(2)  A councillor, other than the mover of an original motion, has the right to speak once on the motion and once on each amendment to it.

(3)  A councillor must not, without the consent of the council, speak more than once on a motion or an amendment, or for longer than 5 minutes at any one time. However, the chairperson may permit a councillor who claims to have been misrepresented or misunderstood to speak more than once on a motion or an amendment, and for longer than 5 minutes on that motion or amendment to enable the councillor to make a statement limited to explaining the misrepresentation or misunderstanding.

(4)  Despite subclauses (1) and (2), a councillor may move that a motion or an amendment be now put:

(a)  if the mover of the motion or amendment has spoken in favour of it and no councillor expresses an intention to speak against it, or

(b)  if at least 2 councillors have spoken in favour of the motion or amendment and at least 2 councillors have spoken against it.

(5)  The chairperson must immediately put to the vote, without debate, a motion moved under subclause (4). A seconder is not required for such a motion.

(6)  If a motion that the original motion or an amendment be now put is passed, the chairperson must, without further debate, put the original motion or amendment to the vote immediately after the mover of the original motion has exercised his or her right of reply under subclause (1).

(7)  If a motion that the original motion or an amendment be now put is rejected, the chairperson must allow the debate on the original motion or the amendment to be resumed.

251   Voting at council meetings

(1)  A councillor who is present at a meeting of a council but who fails to vote on a motion put to the meeting is taken to have voted against the motion.

(2)  If a councillor who has voted against a motion put at a council meeting so requests, the general manager must ensure that the councillor’s dissenting vote is recorded in the council’s minutes.

(3)  The decision of the chairperson as to the result of a vote is final, unless the decision is immediately challenged and not fewer than 2 councillors rise and demand a division.

(4)  When a division on a motion is demanded, the chairperson must ensure that the division takes place immediately. The general manager must ensure that the names of those who vote for the motion and those who vote against it are respectively recorded in the council’s minutes.

(5)  Voting at a council meeting, including voting in an election at such a meeting, is to be by open means (such as on the voices or by show of hands). However, the council may resolve that the voting in any election by councillors for mayor or deputy mayor is to be by secret ballot.

Note. Part 11 of this Regulation provides that a council is to resolve whether an election by the councillors for mayor or deputy mayor is to be by preferential ballot, ordinary ballot or open voting (clause 394 and clause 3 of Schedule 7). Clause 3 of Schedule 7 also makes it clear that ballot has its normal meaning of secret ballot.

252   Representations by members of the public—closure of part of meeting

(1)  A representation at a council meeting by a member of the public as to whether a part of the meeting should be closed to the public can only be made for a fixed period immediately after the motion to close the part of the meeting is moved and seconded.

(2)  That period is as fixed by the council’s code of meeting practice or (if the council does not have a code of meeting practice or its code of meeting practice does not fix that period) as fixed by resolution of the council. Different periods can be fixed according to the different types of matters to be discussed or received and discussed at closed parts of meetings.

253   Resolutions passed at closed meetings to be made public

If a council passes a resolution during a meeting, or a part of a meeting, that is closed to the public, the chairperson must make the resolution public as soon as practicable after the meeting or part of the meeting has ended.

254   Matters to be included in minutes of council meeting

The general manager must ensure that the following matters are recorded in the council’s minutes:

(a)  details of each motion moved at a council meeting and of any amendments moved to it,

(b)  the names of the mover and seconder of the motion or amendment,

(c)  whether the motion or amendment is passed or lost.

Note. Section 375 (1) of the Act requires a council to ensure that full and accurate minutes are kept of the proceedings of a meeting of the council (other provisions of this Regulation and of the Act require particular matters to be recorded in a council’s minutes).

Division 4 Keeping order at meetings

255   Questions of order

(1)  The chairperson, without the intervention of any other councillor, may call any councillor to order whenever, in the opinion of the chairperson, it is necessary to do so.

(2)  A councillor who claims that another councillor has committed an act of disorder, or is out of order, may call the attention of the chairperson to the matter.

(3)  The chairperson must rule on a question of order immediately after it is raised but, before doing so, may invite the opinion of the council.

(4)  The chairperson’s ruling must be obeyed unless a motion dissenting from the ruling is passed.

256   Acts of disorder

(1)  A councillor commits an act of disorder if the councillor, at a meeting of a council or a committee of a council:

(a)  contravenes the Act or any regulation in force under the Act, or

(b)  assaults or threatens to assault another councillor or person present at the meeting, or

(c)  moves or attempts to move a motion or an amendment that has an unlawful purpose or that deals with a matter that is outside the jurisdiction of the council or committee, or addresses or attempts to address the council or committee on such a motion, amendment or matter, or

(d)  insults or makes personal reflections on or imputes improper motives to any other councillor, or

(e)  says or does anything that is inconsistent with maintaining order at the meeting or is likely to bring the council or committee into contempt.

(2)  The chairperson may require a councillor:

(a)  to apologise without reservation for an act of disorder referred to in subclause (1) (a) or (b), or

(b)  to withdraw a motion or an amendment referred to in subclause (1) (c) and, where appropriate, to apologise without reservation, or

(c)  to retract and apologise without reservation for an act of disorder referred to in subclause (1) (d) or (e).

(3)  A councillor may, as provided by section 10 (2) (a) or (b) of the Act, be expelled from a meeting of a council for having failed to comply with a requirement under subclause (2). The expulsion of a councillor from the meeting for that reason does not prevent any other action from being taken against the councillor for the act of disorder concerned.

257   How disorder at a meeting may be dealt with

(1)  If disorder occurs at a meeting of a council, the chairperson may adjourn the meeting for a period of not more than 15 minutes and leave the chair. The council, on reassembling, must, on a question put from the chair, decide without debate whether the business is to be proceeded with or not. This subclause applies to disorder arising from the conduct of members of the public as well as disorder arising from the conduct of councillors.

(2)  A member of the public may, as provided by section 10 (2) (a) or (b) of the Act, be expelled from a meeting of a council for engaging in or having engaged in disorderly conduct at the meeting.

258   Power to remove persons from meeting after expulsion

If a councillor or a member of the public fails to leave the place where a meeting of a council is being held:

(a)  immediately after the council has passed a resolution expelling the councillor or member from the meeting, or

(b)  where the council has authorised the person presiding at the meeting to exercise the power of expulsion—immediately after being directed by the person presiding to leave the meeting,

a police officer, or any person authorised for the purpose by the council or person presiding, may, by using only such force as is necessary, remove the councillor or member from that place and, if necessary, restrain the councillor or member from re-entering that place.

Division 5 Council committees

259   Committee of the whole

(1)  All the provisions of this Regulation relating to meetings of a council, so far as they are applicable, extend to and govern the proceedings of the council when in committee of the whole, except the provision limiting the number and duration of speeches.

(2)  The general manager or, in the absence of the general manager, an employee of the council designated by the general manager is responsible for reporting to the council proceedings in committee of the whole. It is not necessary to report the proceedings in full but any recommendations of the committee must be reported.

(3)  The council must ensure that a report of the proceedings (including any recommendations of the committee) is recorded in the council’s minutes. However, the council is not taken to have adopted the report until a motion for adoption has been made and passed.

260   Council may establish committees

(1)  A council may, by resolution, establish such committees as it considers necessary.

(2)  A committee is to consist of the mayor and such other councillors as are elected by the councillors or appointed by the council.

(3)  The quorum for a meeting of a committee is to be:

(a)  such number of members as the council decides, or

(b)  if the council has not decided a number—a majority of the members of the committee.

261   Functions of committees

A council must specify the functions of each of its committees when the committee is established, but may from time to time amend those functions.

262   Notice of committee meetings to be given

(1)  The general manager of a council must send to each councillor, at least 3 days before each meeting of the committee, a notice specifying:

(a)  the time and place at which and the date on which the meeting is to be held, and

(b)  the business proposed to be transacted at the meeting.

(2)  However, notice of less than 3 days may be given of a committee meeting called in an emergency.

263   Non-members entitled to attend committee meetings

(1)  A councillor who is not a member of a committee of a council is entitled to attend, and to speak at, a meeting of the committee.

(2)  However, the councillor is not entitled:

(a)  to give notice of business for inclusion in the agenda for the meeting, or

(b)  to move or second a motion at the meeting, or

(c)  to vote at the meeting.

264   Representations by members of the public—closure of part of meeting

(1)  A representation at a committee meeting by a member of the public as to whether a part of the meeting should be closed to the public can only be made for a fixed period immediately after the motion to close the part of the meeting is moved and seconded.

(2)  That period is as fixed by the council’s code of meeting practice or (if the council does not have a code of meeting practice or its code of meeting practice does not fix that period) as fixed by resolution of the council. Different periods can be fixed according to the different types of matters to be discussed or received and discussed at closed parts of meetings.

265   Procedure in committees

(1)  Subject to subclause (3), each committee of a council may regulate its own procedure.

(2)  Without limiting subclause (1), a committee of a council may decide that, whenever the voting on a motion put to a meeting of the committee is equal, the chairperson of the committee is to have a casting vote as well as an original vote.

(3)  Voting at a committee meeting is to be by open means (such as on the voices or by show of hands).

266   Committees to keep minutes

(1)  Each committee of a council must ensure that full and accurate minutes of the proceedings of its meetings are kept. In particular, a committee must ensure that the following matters are recorded in the committee’s minutes:

(a)  details of each motion moved at a meeting and of any amendments moved to it,

(b)  the names of the mover and seconder of the motion or amendment,

(c)  whether the motion or amendment is passed or lost.

(2)  As soon as the minutes of an earlier meeting of a committee of the council have been confirmed at a later meeting of the committee, the person presiding at the later meeting must sign the minutes of the earlier meeting.

267   Chairperson and deputy chairperson of committees

(1)  The chairperson of each committee of the council must be:

(a)  the mayor, or

(b)  if the mayor does not wish to be the chairperson of a committee—a member of the committee elected by the council, or

(c)  if the council does not elect such a member—a member of the committee elected by the committee.

(2)  A council may elect a member of a committee of the council as deputy chairperson of the committee. If the council does not elect a deputy chairperson of such a committee, the committee may elect a deputy chairperson.

(3)  If neither the chairperson nor the deputy chairperson of a committee of a council is able or willing to preside at a meeting of the committee, the committee must elect a member of the committee to be acting chairperson of the committee.

(4)  The chairperson is to preside at a meeting of a committee of a council. If the chairperson is unable or unwilling to preside, the deputy chairperson (if any) is to preside at the meeting, but if neither the chairperson nor the deputy chairperson is able or willing to preside, the acting chairperson is to preside at the meeting.

268   Absence from committee meetings

(1)  A member (other than the mayor) ceases to be a member of a committee if the member:

(a)  has been absent from 3 consecutive meetings of the committee without having given reasons acceptable to the committee for the member’s absences, or

(b)  has been absent from at least half of the meetings of the committee held during the immediately preceding year without having given to the committee acceptable reasons for the member’s absences.

(2)  Subclause (1) does not apply in respect of a committee that consists of all of the members of the council.

Note. The expression year means the period beginning 1 July and ending the following 30 June. See the Dictionary to the Act.

269   Reports of committees

(1)  If in a report of a committee of the council distinct recommendations are made, the decision of the council may be made separately on each recommendation.

(2)  The recommendations of a committee of the council are, so far as adopted by the council, resolutions of the council.

(3)  If a committee of a council passes a resolution, or makes a recommendation, during a meeting, or a part of a meeting, that is closed to the public, the chairperson must:

(a)  make the resolution or recommendation public as soon as practicable after the meeting or part of the meeting has ended, and

(b)  report the resolution or recommendation to the next meeting of the council.

270   Disorder in committee meetings

The provisions of the Act and of this Regulation relating to the maintenance of order in council meetings apply to meetings of committees of the council in the same way as they apply to meetings of the council.

271   Certain persons may be expelled from council committee meetings

(1)  If a meeting or part of a meeting of a committee of a council is closed to the public in accordance with section 10A of the Act, any person who is not a councillor may be expelled from the meeting as provided by section 10 (2) (a) or (b) of the Act.

(2)  If any such person, after being notified of a resolution or direction expelling him or her from the meeting, fails to leave the place where the meeting is being held, a police officer, or any person authorised for the purpose by the council, committee or person presiding, may, by using only such force as is necessary, remove the first-mentioned person from that place and, if necessary, restrain that person from re-entering that place.

Division 6 Miscellaneous

272   Inspection of the minutes of a council or committee

(1)  An inspection of the minutes of a council or committee of a council is to be carried out under the supervision of the general manager or an employee of the council designated by the general manager to supervise inspections of those minutes.

(2)  The general manager must ensure that the minutes of the council and any minutes of a committee of the council are kept secure and in safe custody and that no unauthorised person is allowed to interfere with them.

Note. Section 12 of the Act confers a right (restricted in the case of closed parts of meetings) to inspect the minutes of a council or committee of a council.

273   Tape recording of meeting of council or committee prohibited without permission

(1)  A person may use a tape recorder to record the proceedings of a meeting of a council or a committee of a council only with the authority of the council or committee.

(2)  A person may, as provided by section 10 (2) (a) or (b) of the Act, be expelled from a meeting of a council or a committee of a council for using or having used a tape recorder in contravention of this clause.

(3)  If any such person, after being notified of a resolution or direction expelling him or her from the meeting, fails to leave the place where the meeting is being held, a police officer, or any person authorised for the purpose by the council or person presiding, may, by using only such force as is necessary, remove the first-mentioned person from that place and, if necessary, restrain that person from re-entering that place.

(4)  In this clause, tape recorder includes a video camera and any electronic device capable of recording speech, whether a magnetic tape is used to record or not.

Part 11 Elections

Division 1 Preliminary

274   Application of Part and associated Schedules

(1)  This Part (except Division 12) applies to the election of the councillors (by ward or area) and the mayor (by area) of an area by the persons entitled to vote in the area.

(2)  Schedules 7–10 do not apply to elections of the kind referred to in subclause (1).

(3)  Division 12 and Schedules 7–10 apply to other matters as specified in Division 12 (ie the election of a mayor or deputy mayor by councillors, the election of the members of, and the chairperson of, a county council and the conduct of constitutional referendums and council polls).

275   Definitions

(1)  In this Part:

authorised copy of a roll, in relation to an election, means an authorised copy of a roll referred to in section 301 (4) of the Act.

close of the poll, in relation to an election, means 6 pm on the day on which the election is held.

closing date, in relation to an election, means the date prescribed by clause 278 for the closing of the roll of electors for the election.

Note. Clause 278 provides that the closing date is the fortieth day preceding election day, except where the election is delayed.

declared institution means an institution declared under clause 327.

declared institutions ballot-box means the ballot-box reserved for the receipt of declared institution votes.

driver licence means a driver licence issued under the Road Transport (Driver Licensing) Act 1998.

election manager means:

(a)  in relation to an election, council poll or constitutional referendum administered by the general manager of a council—the general manager, or

(b)  in relation to an election, council poll or constitutional referendum administered by the Electoral Commissioner—the Electoral Commissioner.

election official means:

(a)  a returning officer or substitute returning officer, or

(b)  an electoral official appointed by the returning officer under section 296A (3) or 296B (3) of the Act.

Electoral Commission means the New South Wales Electoral Commission constituted by section 21A of the Parliamentary Electorates and Elections Act 1912, and includes the Electoral Commissioner.

Note. Section 21A of that Act provides that:

(a)  the functions of the Electoral Commission are exercisable by the Electoral Commissioner, and

(b)  any functions conferred or imposed on the Electoral Commissioner by or under any Act may be exercised by the Electoral Commissioner in his or her official name as Electoral Commissioner or in the name of the Commission.

general manager means, in relation to an election or enrolment, the general manager of the council of the area in which the election is being held or of the area to which the enrolment relates.

nomination day, in relation to an election, means the day specified in clause 286.

Photo Card means a New South Wales Photo Card issued by Roads and Maritime Services under the Photo Card Act 2005.

polling place manager, in relation to a polling place, means:

(a)  the electoral official appointed by the returning officer under section 296A (3) or 296B (3) of the Act and in charge of the polling place, or

(b)  the returning officer if authorised by the election manager to act as polling place manager at the polling place.

postal ballot-box means the ballot-box reserved for the receipt of postal votes.

pre-poll ballot-box means the ballot-box reserved for the receipt of pre-poll votes.

pre-poll voting office means a pre-poll voting office appointed under clause 298.

pre-poll voting officer means:

(a)  the returning officer, or

(b)  an election official assigned by the election manager or returning officer to conduct pre-poll voting.

provisional vote means a vote under Subdivision 1A of Division 7.

registered officer of a registered political party includes a deputy registered officer of the party.

registered political party means a political party registered under Part 7 of Chapter 10 of the Act.

silent elector means an elector whose place of living is not included on a roll of electors because of a request made under section 739 of the Act.

(2)  In this Part, a reference to a form by number is a reference to a form contained in Schedule 11.

(3)  In this Part, a reference to the Electoral Commissioner includes a reference to the returning officer where the Commissioner authorises the returning officer to exercise a specified function conferred or imposed on the Commissioner by this Part.

(4)  In this Part, a reference to the election manager’s website is a reference to:

(a)  in relation to an election, council poll or constitutional referendum administered by the general manager of a council—the council’s website, and

(b)  in relation to an election, council poll or constitutional referendum administered by the Electoral Commissioner—the Electoral Commission’s website.

Division 2 Administration

276   Election official cannot be candidate

(1)  A person who is nominated for election to civic office in an area cannot be appointed as a returning officer or other election official in respect of an election in that or any other area.

(2)  A returning officer or other election official ceases to hold office in respect of an election in an area on being nominated for election in that or any other area.

276A   Election official to be on electoral roll

A person is not qualified for appointment as an election official unless:

(a)  if the person resides in New South Wales—the person is enrolled for an electoral district under the Parliamentary Electorates and Elections Act 1912, or

(b)  in any other case—the person is enrolled in any other State or Territory of the Commonwealth as an elector for the House of Representatives.

277   Notice of changes to wards

(1)  If a council divides its area into wards, abolishes all its wards, alters its ward boundaries or names or renames a ward in its area, the general manager of the council must give notice of that fact.

(2)  The notice is to be given:

(a)  by advertisement in a newspaper circulating generally in the council’s area, and

(b)  in writing displayed at the office of the council, and

(c)  in writing delivered or sent to the Electoral Commission.

(3)  If, as a result of the changes referred to in this clause, there are any wards that are new or that have altered boundaries, the notice must include a written description of, and a map showing, the boundaries of the new wards or boundaries as so altered.

277A   Effect of changes to wards on approaching elections

(1) Application of this clause
This clause applies if a council divides its area into wards, abolishes all its wards, alters its ward boundaries, or names or renames a ward in its area. Each such action is a change for the purposes of this clause.

(2) Effect on approaching election (other than by-election)
The next election (other than a by-election) held after a change is made is to be held as if the change had not been made if it was made during the period of 6 months before the closing date, unless the Electoral Commission approves in special circumstances determined by the Commission.

(3) Effect on approaching by-election
A by-election held after a change is made and before the next ordinary election is to be held as if the change had not been made. This subclause does not apply to an alteration of ward boundaries (which is provided for by section 210 (6) of the Act).

(4) Transitional
Subclause (2) does not apply in relation to the ordinary election to be held in September 2008.

277B   Advertising by election manager

(1) General power to advertise
The election manager may publish (at such times as the election manager thinks fit) such electoral information as the election manager thinks fit, including but not limited to:

(a)  information of the fact that an election is to be held, and

(b)  information about:

(i)  the nomination process for an election, and

(ii)  entitlements and obligations to vote in an election, and

(iii)  the location of polling places for the election and who may vote at the respective polling places.

(2) Types of advertising
The information may be published by way of newspaper notices, by display on the election manager’s internet website, or in any other manner the election manager thinks appropriate.

(3) Coverage of advertisement
A publication of information may relate to one or more areas.

(4) Relationship of clause to other provisions
This clause has effect subject to the specific requirements of clauses 280, 288 and 300, but nothing in those clauses prevents the election manager from publishing additional notices or information under this clause.

Division 3 Electoral rolls

278   Closing date

(1)  For the purposes of the Dictionary to the Act, closing date is defined in this clause.

(2)  The closing date in relation to an election or poll is the date of the fortieth day preceding the day for the election or poll.

(3)  If an election or poll is delayed, the closing date in relation to it is:

(a)  in the case of a delay occurring before the fortieth day preceding the original day of the election or poll—the date of the fortieth day preceding the new day of the election or poll, or

(b)  in any other case—the date of the fortieth day preceding the original day.

279   Form of roll of electors

(1)  For the purposes of section 301 (2) of the Act, the form of the roll of electors is a form containing the following particulars:

(a)  the ward (if any) and area to which the roll relates,

(b)  a numbered entry containing the surname, other names and address of each elector (the entry being in alphabetical order according to surname).

(2)  A copy of the roll of electors may be compiled in an electronic form.

280   Advertising of enrolments

(1)  The Electoral Commission is to give notice under clause 277B of the fact that persons are entitled to vote in an election, constitutional referendum or council poll, and are entitled to be enrolled as electors for a ward or area, if they are residents of the ward or area, or are owners, occupiers, or ratepaying lessees, of rateable land in the ward or area.

(2)  The notice is to invite claims for the inclusion of the names of persons in the roll of electors or for the amendment of any particulars entered in the roll against the names of persons.

(3)  The notice is to be given at least once in the 14 days before the closing date for the election, constitutional referendum or council poll. The notice is to be given by advertisement in a newspaper circulating generally in the State or another newspaper circulating in the relevant area, or both.

(4)  An advertisement may contain notices required by this clause relating to more than one area.

(5)  The election manager must cause the information contained in a notice under this clause to be published on the election manager’s internet website until at least 6 pm on the closing date for the election.

(6)  (Repealed)

281   Enrolment claims and objections

(1)  A claim under section 303 (1) (a) of the Act for inclusion of a person’s name is to be in a form containing the following particulars:

(a)  whether the claim is being lodged with the Electoral Commission or the general manager,

(b)  the person’s full name and full address,

(c)  the person’s date of birth,

(d)  whether the person is entitled to be enrolled as an elector under the Act and whether the person claims enrolment as a resident of a ward or area, or is an owner, occupier, or ratepaying lessee, of rateable land in a ward or area,

(e)  the full address of any such rateable land,

(f)  whether the person is already enrolled in another ward (if any) of the same area,

(g)  particulars of any relevant nomination of the person under section 270, 271 or 272 of the Act (or section 16 or 16A of the City of Sydney Act 1988).

(2)  A claim under section 303 (1) (a) of the Act for the amendment of any particulars entered in the roll against a person’s name is to be in a form containing the following particulars:

(a)  whether the claim is being lodged with the Electoral Commission or the general manager,

(b)  the person’s full name and full address,

(c)  particulars of the amendment sought.

(3)  A claim under section 303 (1) (a) of the Act is to be signed by the person who lodges it and to contain a statement signed by a witness to the effect that the witness saw the person sign the claim and believes, to the best of the witness’s knowledge, that the statements in the claim are true.

(4)  An objection under section 303 (1) (b) or (c) of the Act to the inclusion of a name or the inclusion of any particulars against a name is to be in a form containing the following particulars:

(a)  whether the objection is being lodged with the Electoral Commission or the general manager,

(b)  the name or particulars to the inclusion of which the objection is made,

(c)  the full name and full address of the person lodging the objection,

(d)  the reasons for the objection.

(5)  An objection under section 303 (1) (b) or (c) of the Act is to be signed by the person who lodges it and that signature is to be witnessed by a justice of the peace.

282   Competing claimants for enrolment

(1)  A general manager who nominates a person under section 272 of the Act must do so on the basis of lots drawn in accordance with this clause.

(2)  For the purposes of this clause, the general manager writes the names of the claimants who are competing for enrolment in respect of the same parcel of land on similar slips of paper. The general manager then folds the slips so as to prevent the names being seen, mixes them, and draws one slip at random.

(3)  The person to be nominated is the one whose name appears on the slip that is drawn.

283   Supply of forms

The Electoral Commission and general manager are to supply a reasonable number of copies of forms suitable for use for the purposes of clause 281 free of charge to any person who applies for them.

284   Request for omission of place of living from roll (non-resident electors)

For the purposes of section 739 of the Act, the prescribed form of request for the omission or removal of any matter that would disclose or discloses a person’s place of living on the roll of electors is Form 1.

284A   Provision of enrolment information to candidates

(1)  At the request of any candidate for an election, the Electoral Commission must provide to the candidate, free of charge and in the manner and form determined by the Commission, enrolment information consisting of:

(a)  a list of electors for the candidate’s ward or, if the area is not divided into wards, a list of electors for the candidate’s area, and

(b)  their particulars,

      as appearing in the roll of electors referred to in section 301 of the Act.

(2)  Without limiting subclause (1), the Electoral Commission may determine that enrolment information to be provided under this clause is to be provided electronically or in electronic form.

284B   Use of enrolment information—application of section 42 of Parliamentary Electorates and Elections Act 1912

(1)  The provisions of section 42 (1) and (2) (other than section 42 (2) (c)) of the Parliamentary Electorates and Elections Act 1912 are adopted in connection with enrolment information provided under clause 284A, with modifications so that those provisions as modified are as set out in subclauses (2) and (3), including the penalty set out at the end of subclause (2).

Note. Section 748 (3) and (4) of the Act provide for the creation of offences in connection with elections and polls by adopting, with such modifications as are necessary, any of the provisions of the Parliamentary Electorates and Elections Act 1912, and for the penalty for such an offence not to exceed the penalty for the corresponding offence in that Act.

(2)  A person must not use enrolment information that is provided by the Electoral Commission under clause 284A except for a purpose that is a permitted purpose in relation to the person to whom the information was provided.

Maximum penalty: 1,000 penalty units.

(3)  A permitted purpose is any purpose in connection with an election under the Act.

284C   Prohibition of disclosure or commercial use of enrolment information—application of section 43 of Parliamentary Electorates and Elections Act 1912

(1)  The provisions of section 43 (other than section 43 (5)) of the Parliamentary Electorates and Elections Act 1912 are adopted in connection with enrolment information provided under clause 284A, with modifications so that those provisions as modified are as set out in subclauses (2)–(5), including the penalty set out at the end of this clause.

Note. Section 748 (3) and (4) of the Act provide for the creation of offences in connection with elections and polls by adopting, with such modifications as are necessary, any of the provisions of the Parliamentary Electorates and Elections Act 1912, and for the penalty for such an offence not to exceed the penalty for the corresponding offence in that Act.

(2)  For the purposes of this clause, enrolment information is protected information in relation to a person if the person knows, or has reasonable grounds for believing, that the information has been provided under clause 284A.

(3)  A person must not disclose protected information unless the disclosure would be a use of the information for a permitted purpose under clause 284B.

(4)  A person must not use protected information for a commercial purpose.

(5)  Without limiting subclause (4), protected information is used for a commercial purpose if it is sold or offered for sale.

Maximum penalty: 1,000 penalty units.

Division 4 Notice of election and nominations

285   Notification of vacancy

When a civic office in an area becomes vacant, the general manager of the council of the area is to give notice of the vacancy within 7 days:

(a)  to the Director-General and the Secretary of the Local Government and Shires Associations of New South Wales if the vacancy is in the office of a mayor elected by councillors, or

(b)  to the Electoral Commission, the Director-General and the Secretary of those Associations in any other case.

286   Nomination day

The date of the nomination day for an ordinary election or a by-election is the date of the fifth Wednesday before the day of the election, or such other date as the election manager determines in a particular case.

287   Place of nomination

The place of nomination is determined by the returning officer, but it is to be the council’s office if practicable.

288   Notice of election and call for nomination proposals

(1)  Not less than one week before the nomination day, the election manager is to give public notice of the election by advertisement in a newspaper circulating in the area.

(2)  The notice must:

(a)  invite proposals for nomination for the election, and

(b)  specify where nomination forms may be obtained, and

(c)  specify the date of the nomination day and the place of nomination, and

(d)  specify the date when the poll will be held for the election if more candidates are nominated than the number of councillors to be elected, and

(e)  give notice of the requirements under the Act for proposals for nomination (including the payment of deposits, the provision of candidate information sheets, the grouping of candidates and the creation of group voting squares).

(3)  The notice may contain any other information that the election manager thinks appropriate.

(4)  An advertisement may contain notices required by subclause (1) relating to more than one area.

(5)  The election manager must cause the information contained in a notice under this clause to be published on the election manager’s internet website until at least 12 noon on the nomination day for the election.

(6)  (Repealed)

289   Nomination proposals

(1)  A candidate for election is to be proposed for nomination in a nomination paper:

(a)  in Form 2 by at least 2 proposers (other than the candidate) who are enrolled (at the closing date for the election) in respect of the same ward or area as the one in respect of which the candidate is proposed for nomination, or

(b)  in Form 3 by the registered officer of a registered political party.

(2)  Each candidate must be proposed on a separate nomination paper.

(3)  A nomination paper is not valid unless the person proposed for nomination in the paper has completed and signed the Form of Consent included in the paper.

(4)  A nomination paper is not in Form 2 or 3 unless:

(a)  it has printed on the back, or on an attached sheet, sections 274, 275, 276 and 283 of the Act, and

(b)  it is accompanied by a candidate information sheet that is in such form that the requirements of section 308 (1) of the Act can be satisfied, and

(c)  if the nomination proposal is for an ordinary election, it is accompanied by a statistical information sheet as specified in those forms.

(4A)  A given name of a candidate specified in a nomination paper as the form in which that name should be printed on the ballot-papers for the election may differ from the candidate’s given name as it appears on the roll only to the extent that the given name is specified by:

(a)  an initial standing for that name, or

(b)  a commonly accepted variation of the name (including an abbreviation or truncation of that name or an alternative form of that name), or

(c)  a commonly used other name specific to the candidate by which the candidate is usually identified (if the returning officer is satisfied that the proposed name is a commonly used other name specific to the candidate by which the candidate is usually identified).

(5)  A nomination paper must be delivered or sent (by post or otherwise), or transmitted by facsimile or email, so as to reach the returning officer by 12 noon on the nomination day. The returning officer must give a receipt for it if asked to do so.

(5A)  A nomination paper is not validly transmitted by email unless:

(a)  an image of the completed nomination paper signed by the proposers and the person proposed for nomination is included in or attached to the email, and

(b)  that image includes an image of the actual signatures as appearing on the nomination paper.

(5B)  The returning officer may make such inquiries as he or she thinks fit to confirm the authenticity of a nomination paper if he or she considers it appropriate to do so in the circumstances.

(6)  On receipt of a nomination paper, the returning officer must endorse on it the date and time of receipt.

(7)  The election manager is to supply a reasonable number of copies of Forms 2 and 3 free of charge to any person who applies for them.

(8)  A deposit for a nomination proposal is to be paid, by the person proposed for nomination or some person on his or her behalf, in cash or by a cheque issued by an authorised deposit-taking institution but not by way of personal cheque. The deposit must be paid by 12 noon on the nomination day.

290   Candidate information sheets

(1)  The matters prescribed for the purposes of section 308 (2) of the Act that are to be included in a candidate information sheet are:

(a)  the proposed candidate’s full name, and

(b)  the suburb, town or other locality of the proposed candidate’s place of living (as shown on a roll kept under the Parliamentary Electorates and Elections Act 1912), and

(c)  whether the proposed candidate is a member of any registered political party and, if so, the name of the party, and

(d)  whether the proposed candidate is qualified to hold the civic office concerned by virtue of being enrolled on:

(i)  the residential roll for the ward or area concerned, or

(ii)  the non-residential roll for the ward or area concerned, or

(iii)  the roll of occupiers and ratepaying lessees for the ward or area concerned.

(2)  Nothing in this clause prevents the inclusion of other matters (such as the proposed candidate’s date of birth, occupation, trade and professional qualifications, membership of organisations, the registered party (if any) that has endorsed the proposed candidate, statements as to the proposed candidate’s policies and beliefs, and other qualifications relevant to the proposed candidature).

(3)  A candidate information sheet must be written or typed on a form supplied by an election official. The form is to consist of one side of an A4 sheet of paper.

(4)  As soon as practicable after a candidate is nominated, the election manager must cause the information contained in the candidate’s information sheet to be published on the election manager’s internet website until at least election day. The election manager may edit the format in which the information is presented on the website and may delete any material the election manager thinks inappropriate to be included.

(5)  (Repealed)

291   Withdrawal of nomination proposals

(1) Manner of withdrawal
A nomination proposal may be withdrawn by the delivery or sending (by post or otherwise), or the transmission by facsimile or email, to the returning officer of a notice in writing signed personally by the person proposed for nomination.

(2) Timing of withdrawal
The notice must be delivered, sent or transmitted so as to reach the returning officer by 12 noon on the nomination day.

(3) Emailed withdrawal notice
The notice is not validly transmitted by email unless:

(a)  an image of the completed notice signed by the person proposed for nomination is included in or attached to the email, and

(b)  that image includes an image of the actual signature as appearing on the notice.

(4) Inquiries as to authenticity of withdrawal notice
The returning officer may make such inquiries as he or she thinks fit to confirm the authenticity of a withdrawal notice if he or she considers it appropriate to do so in the circumstances.

292   Multiple nomination proposals

(1)  If a person has been proposed for nomination in respect of more than one ward in an area, and by 12 noon on the nomination day there are still proposals for the nomination of the person in respect of more than one ward in that area, those proposals are all invalid.

(2)  A proposal for nomination for election as councillor is invalid if it is made by a person who has already proposed as many candidates for election as councillor for an area or ward as there are councillors to be elected for that area or ward.

(3)  A proposal for nomination for election as mayor of an area is invalid if it is made by a person who has already proposed a candidate for election as mayor of that area.

(4)  Subclauses (2) and (3) do not apply in any case where the proposals referred to are made by the registered officer for a political party registered in the Local Government Register of Political Parties.

293   Refund of deposit

(1)  A deposit in respect of the nomination of a person (the candidate) is to be returned if:

(a)  the candidate withdraws the proposal for nomination or cannot be nominated because the candidate is not qualified to hold civic office, or

(b)  the candidate dies before election day, or

(c)  the candidate is elected (whether or not a poll is taken), or

(d)  the candidate receives at least 4 per cent of the total number of formal first preference votes, or

(e)  the name of the candidate appears in a group on the ballot-papers and any candidate whose name appears in that group is elected or receives at least 4 per cent of the total number of formal first preference votes, or

(f)  a poll is not taken in the ward or area for which the candidate has been nominated.

(2)  The deposit that is to be returned under subclause (1) is to be returned:

(a)  to the candidate (or to some person authorised in writing by the candidate to receive it), unless paragraph (b) applies, or

(b)  to the candidate’s personal representatives, if the candidate died before election day.

(3)  A deposit that is not required to be returned is to be forfeited to the council.

294   Inspection of names of persons proposed for nomination

(1)  A person is to be allowed, at any reasonable time in office hours, to inspect, without charge, a list prepared by the returning officer of:

(a)  the full names of persons proposed for nomination, and

(b)  the names under which those persons have requested, in the consents to their nomination papers, that they be shown on the ballot-papers, and

(c)  the suburb, town or other locality of the place of living as enrolled of those persons (as stated on the nomination papers).

(2)  A copy of the list in its current form must be displayed on the election manager’s internet website between the time when the first name is placed on the list and noon on the nomination day.

295   Returning officer to nominate candidates

(1)  On the nomination day, and in the presence of such scrutineers and such reasonable number of other persons as choose to be present, the returning officer is to do the following, commencing at 12 noon:

(a)  attend at the place of nomination, and

(b)  announce any withdrawals of nominations, and

(c)  cancel the nomination papers of the persons who have withdrawn, and

(d)  nominate as candidates for election the persons whose nomination papers the returning officer believes to be valid and that have not been cancelled.

(2)  The name under which the returning officer is to nominate a person as a candidate for election is:

(a)  the name under which the person has requested, in the consent to that person’s nomination paper, that the person be shown on the ballot-papers, or

(b)  if the returning officer is not satisfied that that name is either one of the given names of the person or a generally recognised abbreviation or derivative of one of the given names together with the full surname of the person—the first given name and the surname of the person.

(3)  On or as soon as practicable after the nomination day, the returning officer is to deliver or send to the election manager a list or lists of:

(a)  the persons proposed for nomination and the names under which the persons have requested, in the consents to their nomination papers, that they be shown on the ballot-papers and of the wards or area for which they are proposed, and

(b)  the persons nominated as candidates under subclause (1).

(4)  Within 5 days after the nomination day, the returning officer (in relation to an election administered by a general manager) is to deliver or send to the Election Funding Authority of New South Wales a list or lists of:

(a)  the persons proposed for nomination and the names under which the persons have requested, in the consents to their nomination papers, that they be shown on the ballot-papers and of the wards or area for which they are proposed, and

(b)  the persons nominated as candidates under subclause (1).

296   Declaration of uncontested election

(1)  If, on the nomination day, candidates are taken to be elected in accordance with section 311 of the Act, the returning officer must, at the place and time of nomination, declare in writing the names of the candidates so elected.

(2)  The declaration is to be signed by the returning officer and is to state the names of the candidates declared elected (being the names under which those candidates were nominated by the returning officer) and the ward or area for which they have been elected.

(3)  After declaring the election, the returning officer must:

(a)  display the written declaration in a conspicuous position at the office of the relevant council and at the place of nomination (if that place is not the office of the council), and

(b)  deliver or send a copy of the written declaration to the Electoral Commission, the Director-General, the Secretary of the Local Government and Shires Associations of New South Wales, and the relevant general manager.

(c)  (Repealed)

(3A)  The election manager must:

(a)  insert a copy of the written declaration in a newspaper circulating in the relevant area, and

(b)  cause the information in the declaration to be published on the election manager’s internet website for at least one month.

(4)  The general manager of a council must, on application to the council by any person, deliver or send to the person a copy of the written declaration.

Division 5 Polling places

297   Polling places

(1)  At least one polling place is to be appointed by the election manager for each ward.

(2)  If an area is divided into wards, at least one polling place is to be appointed by the election manager for all wards, at which a person enrolled in any such ward may vote.

(3)  The election manager may appoint a place as a polling place for an area or ward whether or not the place is within or outside the area or ward concerned.

298   Pre-poll voting offices

(1)  The election manager must appoint one or more places as pre-poll voting offices for the purpose of enabling electors to vote in person before election day.

(2)  The office of the returning officer is taken to be appointed as a pre-poll voting office under subclause (1).

(3)  The election manager may appoint a place as a pre-poll voting office whether or not the place is within or outside the area or ward concerned.

Note. Subdivision 4 of Division 7 of Part 11 (clauses 332 and 332A) provides for mobile booths for the purposes of voting.

Division 6 Preparation for poll

299   Poll

A contested election is to be determined by ballot.

Note. Section 309 of the Act specifies the circumstances in which a contested election is to be held.

300   Notice of contested election

(1)  If there is to be a contested election in respect of any ward or area, the election manager must on the nomination day or as soon as practicable afterwards cause a notice of that fact to be:

(a)  published in a newspaper circulating in the area, and

(b)  displayed at the council’s office and on the election manager’s internet website.

(2)  The notice to be published in a newspaper circulating in the area must state the following:

(a)  that a poll will be taken in respect of the ward or area,

(b)  the date of the poll,

(c)  that information relating to the following is available at the council’s office and on the election manager’s internet website:

(i)  the names of candidates and persons who have been nominated as candidates for the election and the registered political parties of which they are members,

(ii)  the location of the pre-poll voting office or offices and the hours and days that those pre-poll voting office or offices will be open for pre-poll voting,

(iii)  the location of the polling places where the poll will be taken on election day.

(3)  The notices to be displayed at the council’s office and on the election manager’s internet website must state the following:

(a)  that a poll will be taken in respect of the ward or area,

(b)  the date of the poll,

(c)  the full names of the persons who have become candidates and the names under which those persons have been nominated as candidates,

(d)  the names of the political parties (if any) that must be printed adjacent to the names of the candidates on the ballot-papers,

(e)  whether the word “Independent” must be printed adjacent to the name of any candidate on the ballot-papers,

(f)  the location of the polling places where the poll will be taken on election day,

(g)  the location of the pre-poll voting office or offices and the hours between which and the days on which electors may vote at the pre-poll voting office or offices.

(4)  The notices referred to in subclause (1) (b) must be displayed until at least election day.

(5)  A notice under this clause may include such other information relating to the election as the election manager thinks fit.

301   Claims for grouping of candidates

(1)  This clause applies to a claim under section 308A (Grouping of candidates) of the Act.

(2)  A claim must be in writing in the form approved by the election manager to be effective.

(3)  A claim is of no effect if:

(a)  the name of any candidate included in the claim is included in any other claim, or

(b)  the claim is withdrawn by the candidates who made the claim by a notice in writing in the form approved by the election manager delivered or sent to the returning officer so as to reach the returning officer before noon on the nomination day.

(4)  On receipt of a claim or notice of withdrawal of a claim, the returning officer must endorse on it the date and time of receipt.

302   Order of ungrouped candidates and groups on ballot-papers

If after noon on the nomination day there are two or more candidates, not included in a group, for the election or two or more groups of candidates for the election, the returning officer must immediately determine the order of those candidates’ names or those groups’ names on the ballot-papers by:

(a)  a ballot in accordance with clause 303 or 304 (as appropriate), or

(b)  another method of random selection (including by electronic means) approved by the relevant election manager.

303   Ballot for determining the order of ungrouped candidates on ballot-papers

(1)  A ballot to determine the order in which ungrouped candidates’ names are to appear on the ballot-papers, as referred to in clause 302, is to be conducted in the following manner:

(a)  the returning officer must, at the place of nomination and before all persons present, make out in respect of each candidate a slip bearing the name under which the candidate has been nominated,

(b)  the returning officer must then enclose the slips in separate identical containers, securely seal each container and deposit all the containers in a securely fastened ballot-box,

(c)  the returning officer must then shake and rotate the ballot-box and, on request, permit any other person present to do the same,

(d)  the returning officer must then unfasten the ballot-box and take out and open each container one by one,

(e)  the returning officer must then announce to the persons present and record the name of the candidate whose name appears on the slip enclosed in the container first taken from the ballot-box and, in consecutive order, the name of the candidate whose name appears on the slip enclosed in the container next taken from the ballot-box, and so on until the placing of all the names has been determined,

(f)  the returning officer must sign the record and allow any of the persons present to do the same,

(g)  the returning officer must promptly deliver or send the original of the record to the election manager.

(2)  Each candidate or an agent of each candidate is entitled to be present at a ballot in accordance with this clause.

304   Ballot for determining the order of groups of candidates on ballot-papers

(1)  A ballot to determine the order in which the names of groups of candidates are to appear on the ballot-papers, as referred to in clause 302, is to be conducted in the following manner:

(a)  the returning officer must, at the place of nomination and before all persons present, make out in respect of each group of candidates a slip bearing the surname of every candidate in the group and, if the returning officer considers it necessary to do so, the given names or the initial letter or letters of the given names of every candidate in the group,

(b)  the returning officer must then enclose the slips in separate identical containers, securely seal each container and deposit all the containers in a securely fastened ballot-box,

(c)  the returning officer must then shake and rotate the ballot-box and, on request, permit any other person present to do the same,

(d)  the returning officer must then unfasten the ballot-box and take out and open each container one by one,

(e)  the returning officer must then write the word “Group” followed by the letter “A” on the slip enclosed in the container first taken from the ballot-box and write the word “Group” followed by the letter “B” on the slip enclosed in the container next taken from the ballot-box, and so on until the word “Group” and a successive letter of the English alphabet (or, if there are more than 26 groups, a distinctive symbol determined by the returning officer) have been written on each slip,

(f)  the returning officer must then announce to the persons present, and record, the names of the candidates in each group and include in that record, before the names of the candidates in each group, the word “Group” followed by the identifying letter or symbol determined in respect of that group in accordance with paragraph (e),

(g)  the record must be signed by the returning officer and may also be signed by any of the persons present,

(h)  the returning officer must promptly deliver or send the original of the record to the election manager.

(2)  Each candidate or an agent of each candidate is entitled to be present at a ballot in accordance with this clause.

305   Form of ballot-papers

(1)  The returning officer is to have ballot-papers printed for the election and is to provide a sufficient number of ballot-papers to be initialled and used for the election.

(2)  Every ballot-paper must contain a mark:

(a)  in relation to an election administered by a general manager—that bears the name of the council, or

(b)  in relation to an election administered by the Electoral Commissioner—that has been determined by the Electoral Commissioner.

(3)  In printing the ballot-papers for an election in which there are no groups, the names of the candidates are to be printed in one column (starting at the top) in the order determined as referred to in clause 302.

(4)  In printing the ballot-papers for an election:

(a)  in which there is only one group, the names of candidates included in that group are to be printed in a group before the names of candidates, if any, not included in that group, and

(b)  in which there are 2 or more groups, the names of candidates included in the groups are to be printed in groups across the ballot-papers (starting from the left side) in the order determined as referred to in clause 302, before the names of candidates, if any, not included in any such group, and

(c)  the order, within a group, in which the names of candidates in that group are to be printed in the ballot-papers is the order specified in the claim made by them under section 308A of the Act, and

(d)  the names of candidates, if any, not included in any group are to be printed as a group, without any identification referred to in subclause (5), on the ballot-papers in the order determined as referred to in clause 302.

(5)  In printing the ballot-papers, each group (and each group voting square relating to the group) is to be identified by the word “Group” followed by a successive letter of the English alphabet, starting with the letter “A”, and if there are more than 26 groups each group (and each group voting square relating to the group) after the twenty-sixth is to be identified by such symbol as may be determined by the election manager.

(6)  If 2 or more persons have been endorsed by a political party as candidates in an election and a claim has been made to include the names of those candidates in a group on the ballot-papers, the following requirements apply to the printing of the ballot-papers:

(a)  the name of the party by which each candidate was endorsed is to be printed adjacent to the name of that candidate on the ballot-papers,

(b)  if all the candidates were endorsed by the same party and a group voting square is printed on the ballot-papers in relation to the candidates—the name of the party is to be printed on the ballot-papers adjacent to that square,

(c)  if an application under section 321 of the Act included a request that a composite name be printed on the ballot-papers adjacent to the candidates’ group voting square—the composite name is to be printed on the ballot-papers adjacent to that square.

(7)  The ballot-papers must show as the names of the candidates the names under which they were nominated. The names may be accompanied by descriptions or additions to distinguish them from each other in any case where a similarity in the names of 2 or more candidates is, in the opinion of the returning officer, likely to cause confusion.

(8)  For an election in which there are no groups, the ballot-papers are to be in Form 4. For an election in which there are one or more groups but no group has a group voting square, the ballot-papers are to be in Form 5. For an election in which there are one or more groups and one or more groups has a group voting square, the ballot-papers are to be in Form 6.

Note. Section 323 of the Act requires the name of a party or the word “Independent” to be printed as well in certain circumstances.

306–308   (Repealed)

309   Supply of rolls and ballot-papers

(1)  On or before the day of polling the returning officer is to:

(a)  provide for use at each polling place sufficient authorised copies (whether in printed or electronic form) of the roll of electors for the ward or area in which the poll is to be taken, and

(b)  deliver to each polling place manager, and retain, such numbers of the ballot-papers as are sufficient for the use of the electors entitled to vote at each polling place.

(2)  The returning officer is to keep an exact count of all those ballot-papers.

(2A)  (Repealed)

(3)  The returning officer is to retain for use at his or her office:

(a)  at least one authorised copy of the roll of electors for the ward or area in which the poll is to be taken, and

(b)  such number of ballot-papers as the returning officer considers will be required for the use of electors who are permitted to vote at his or her office before election day.

(4)  The returning officer is to keep an exact count of those ballot-papers.

310   Return of numbers of ballot-papers before poll

Not later than the day before election day, the returning officer is to deliver or send to the election manager a return of the following numbers of ballot-papers:

(a)  the numbers ordered and received from the printer,

(b)  the numbers issued as postal ballot-papers,

(c)  the numbers issued for use at pre-poll voting offices, declared institutions and polling places,

(d)  the numbers not issued at all.

311   Ballot-paper to be initialled

A ballot-paper, before being delivered or sent to an elector, is to be initialled on the front by an election official.

312   Ballot-paper may be photocopied, written or otherwise reproduced

(1)  If a polling place, pre-poll voting office or declared institution does not have or runs out of ballot-papers printed in accordance with clause 305, the returning officer, polling place manager or other election official in charge at the time may have the ballot-paper reproduced by photocopying or writing or may use copies obtained by facsimile or email.

(2)  A ballot-paper so reproduced or obtained is still required to be in Form 4, 5 or 6 and is to be in the same general format as the ballot-paper printed in accordance with clause 305.

(3)  A ballot-paper so reproduced or obtained and complying with subclause (2) is as valid as a form printed in accordance with clause 305.

Division 7 Postal and other special types of voting

Subdivision 1 Postal voting

313   Postal voting: qualifications

A person is qualified for a postal vote under this Subdivision if the person:

(a)  will not throughout the hours of polling on election day be within the ward or area for which the election is being held, or

(b)  will not throughout the hours of polling on election day be within 8 kilometres by the nearest practicable route of any polling place at which he or she is entitled to vote, or

(c)  will throughout the hours of polling on election day be travelling under conditions that prevent him or her from attending at any such polling place to vote, or

(d)  is seriously ill or disabled and so will be prevented from attending at any such polling place to vote, or

(e)  is prevented by approaching maternity from attending at any such polling place to vote, or

(f)  is, by reason of that person’s membership of a religious order or religious beliefs, prevented from attending at any such polling place or prevented from voting throughout the hours of polling on election day or throughout the greater part of those hours, or

(g)  is, by reason of that person being kept in a correctional centre (within the meaning of the Crimes (Administration of Sentences) Act 1999), prevented from attending at any such polling place to vote, or

(h)  will be, at a place other than a hospital, caring for another person who requires his or her care for medical reasons and so will be prevented from attending at any such polling place to vote, or

(i)  will, by reason of being engaged for fee, gain or reward in any work throughout the hours of polling on election day, be prevented from attending at any such polling place to vote, or

(j)  is a silent elector, or

(k)  is a person with a disability (within the meaning of the Anti-Discrimination Act 1977), or

(l)  believes that attending a polling place on election day will place the personal safety of the person or of members of the person’s family at risk.

314   Postal voting: application

(1) Qualified persons may apply
A person qualified under this Subdivision may apply to the returning officer for a postal ballot-paper and postal voting envelope.

(2) Form of application
The application is to be in the form approved by:

(a)  in relation to an election administered by a general manager of a council—the Director-General, or

(b)  in relation to an election administered by the Electoral Commissioner—the Electoral Commissioner.

(3) Application to be made to returning officer or Electoral Commissioner
An application under this clause is to be made to the following persons:

(a)  in relation to an election administered by a general manager—the returning officer,

(b)  in relation to an election administered by the Electoral Commissioner—the Electoral Commissioner.

(4) Method of application
An application under this clause may be made:

(a)  by physically delivering or sending it (by post or otherwise) to the relevant returning officer or Electoral Commissioner, as the case requires, or

(b)  by transmitting it by facsimile or email to the relevant returning officer or Electoral Commissioner, as the case requires, or

(c)  by completing the electronic form on the Electoral Commission’s website in accordance with the directions of the Commission.

(5) Closing date for applications
An application under this clause must be received by the relevant person by 5 pm on the fifth day before election day.

(6) Electoral Commissioner to forward application to returning officers for council administered elections
If an application made to the Electoral Commissioner under this clause (including by use of the electronic form on the Electoral Commission’s website) relates to an election administered by a general manager:

(a)  the Electoral Commissioner is to forward that application to the relevant returning officer for the election, and

(b)  the application is taken to have been received by that returning officer at the time it was received by the Electoral Commissioner.

(7) Physical delivery or sending of application
If a written application is to be physically delivered or sent (by post or otherwise) to a returning officer or the Electoral Commissioner, the application:

(a)  is to be placed by the applicant in an envelope addressed to the returning officer or the Electoral Commissioner and sealed, and

(b)  is to be delivered or sent directly to that person by the applicant (or if the applicant is physically incapable of delivering or sending the application and entrusts it to another person for that purpose, by that other person).

(8) Emailed application
If the application is emailed to a returning officer or the Electoral Commissioner, the application is not validly transmitted by email unless:

(a)  an image of the completed application signed by the elector and witness is included in or attached to the email, and

(b)  that image includes an image of the actual signatures as appearing on the application.

(9) Inquiries as to authenticity of application
The returning officer or Electoral Commissioner may make such inquiries as he or she thinks fit to confirm the authenticity of an application if he or she considers it appropriate to do so in the circumstances.

Note. Clause 388A provides that an application for postal voting is taken to be duly made if an elector intending to vote by a postal vote applies under that clause for a ballot-paper in braille format.

315   Registration of general postal voters

(1)  An elector who is registered as a general postal voter for the purposes of the Parliamentary Electorates and Elections Act 1912 is taken to be registered as a general postal voter for the purposes of the Local Government Act 1993 without further application under the latter Act.

(2)  The elector is taken to be so registered for the ward or area corresponding to the address in respect of which the elector is registered as a general postal voter under the Parliamentary Electorates and Elections Act 1912.

(3)  The elector must be so registered not later than 6 pm on the closing date for an election if the applicant is to be treated as a general postal voter for the election.

316   Electors entitled to postal vote

(1)  An elector who duly applies for a postal vote or is registered as a general postal voter is entitled to make a postal vote in the ward or area to which the elector’s application or registration relates.

(2)  The Electoral Commission must forward to the returning officer as soon as possible after the nomination day for an election a list of those general postal voters registered under the Parliamentary Electorates and Elections Act 1912 who are entitled to vote at an election in respect of a ward or area.

(3)  (Repealed)

317   Issue of postal ballot-paper

(1)  On receiving the elector’s duly made application for a postal vote or the list on which the elector’s name appears, the returning officer or Electoral Commissioner, as the case requires, is to:

(a)  make a record that a ballot-paper is being issued to the elector, and

(b)  deliver or send to the elector a ballot-paper that is initialled on the front by an election official (by hand or by electronic or mechanical means), and

(c)  deliver or send to the elector an envelope bearing both the address of the returning officer and a form of declaration in Form 8 on which the returning officer has filled in the full name of the elector, the address of the land to which the elector’s voting entitlement relates, the date of the election and the names of the area and the ward (if any) and the number (if any) given to the elector’s application or registration as referred to in this Subdivision.

(2)  Ballot-papers and envelopes delivered or sent under this clause to a non-resident postal voter are to be delivered or sent to the residential address of that elector.

318   Postal voting procedure

(1)  To make a postal vote, an elector is to:

(a)  show to a witness the ballot-paper and Form 8 declaration delivered or sent to the elector under clause 317, and

(b)  in the presence of the witness, and if the facts on the declaration are correct, sign the declaration in the space provided.

(2)  The witness is to sign the declaration and complete the spaces in it for the address of the witness and the date on which the declaration is signed. The witness is to do those things only if the witness:

(a)  is at least 18 years old and is not a candidate, or agent of a candidate, for civic office in the area in which the election is being held, and

(b)  is satisfied as to the elector’s identity, and

(c)  has seen the elector sign the declaration, and

(d)  knows, from personal knowledge or after reasonable inquiry, that the statements in the declaration are true.

(3)  The elector is then to do the following in the presence of the witness, but without showing the witness how the elector has voted:

(a)  vote as directed on the ballot-paper,

(b)  fold the ballot-paper so that the vote cannot be seen,

(c)  place the ballot-paper in the envelope addressed to the returning officer and close and seal the envelope.

(4)  The elector is then to deliver or send the envelope, or have it delivered or sent, so as to reach the returning officer before 6 pm on the first business day following election day.

(5)  An envelope containing or purporting to contain a postal ballot-paper is taken to have been received by the returning officer if it is delivered to the polling place manager at any polling place between 8 am and 6 pm on election day. The envelope is to be placed in the ballot-box at the polling place.

(6)  An elector to whom a ballot-paper has been delivered or sent under this Subdivision is not entitled to vote at a polling place or pre-poll voting office without first surrendering the ballot-paper and the declaration envelope to the polling place manager at the polling place or the pre-poll voting officer at the pre-poll voting office, as the case requires.

(7)  However, if the elector makes a declaration in the form approved by the Director-General (in relation to an election administered by the general manager of a council) or the Electoral Commissioner (in relation to an election administered by the Electoral Commissioner) that the elector has not received, or has lost, the ballot-paper or the declaration envelope or both and that the elector will not use them if he or she later receives or finds them, the elector may be permitted to vote.

Note. See clause 387 as to spoilt ballot-papers and clause 388 as to the assistance of electors.

319   Closing time for postal vote

A postal vote that does not reach the returning officer before 6 pm on the first business day following election day is not valid and must not be counted.

320   Receipt of postal ballot-papers

(1)  If the returning officer receives an envelope containing or purporting to contain a postal ballot-paper before 6 pm on the first business day following election day, the officer is to make an appropriate record of the receipt of the envelope.

(2)  The returning officer is to place the envelope unopened in the postal ballot-box.

(3)  (Repealed)

Subdivision 1A Provisional voting

320A   Person already marked off roll

(1)  An elector, at a polling place in an area at any election, who is recorded (on the authorised copy of the roll used at the polling place) as having received a ballot-paper, but who claims not to have received a ballot-paper, is to be permitted to vote at the election.

(2)  The elector is to be permitted to vote if the elector:

(a)  answers the questions set out in clause 339 (4) in the manner specified in clause 339 (5), and

(b)  makes a declaration in the form approved by the Electoral Commissioner before an election official at the polling place.

320B   Person omitted from roll

A person, at a polling place in an area at any election:

(a)  who was enrolled for the area, and

(b)  whose name was omitted from the roll of electors for the area (for any reason), and

(c)  who claims to be entitled to vote at the election,

is to be permitted to vote if the person makes a declaration in the form approved by the Electoral Commissioner before an election official at the polling place.

320C   Person enrolling for first time, re-enrolling or transferring enrolment

(1)  A person, at a polling place in an area at any election, who is not enrolled for the area (whether the person is enrolled for another area or is not enrolled for any area), but who claims to be entitled to enrol on the residential roll for the area, is to be permitted to vote at the election.

(2)  The person must:

(a)  complete a claim for enrolment in the form approved by the Electoral Commissioner and submit it to an election official at the polling place, and

(b)  provide to that election official as proof of identity a driver licence or a Photo Card, and

(c)  make a declaration in the form approved by the Electoral Commissioner before that election official.

(3)  The person is to be permitted to vote at the election if the election official is satisfied that:

(a)  the claim for enrolment has been properly completed, and

(b)  the person is who the person claims to be, and

(c)  the proof of identity provided shows that the person’s residence is the same as the place specified in the claim for enrolment as the person’s residence.

Note. If a person cannot produce a driver licence or a Photo Card, the person will not be permitted to vote under this clause.

320D   Person enrolled after closing date

A person, at a polling place in an area at any election, who is enrolled for the area, but whose name does not appear on the authorised copy of the roll at the polling place, is to be permitted to vote if the person makes a declaration in the form approved by the Electoral Commissioner before an election official.

Note. The Electoral Commissioner may enrol a person at any time, including after the authorised copy of the roll for an election has been printed.

320E   Procedure for provisional voting

(1)  A declaration required to be made under this Subdivision:

(a)  is to be written or printed on an envelope, and

(b)  may include a claim for enrolment or transfer of enrolment.

(2)  A person voting under this Subdivision, after making the required declaration and receiving a ballot-paper, is to mark the ballot-paper and fold it to conceal the vote marked on it and return it folded to the polling place manager.

(3)  The polling place manager on receiving the ballot-paper must, in the presence of the person and of any scrutineers present, and without unfolding the ballot-paper, enclose it in the envelope, seal the envelope and put it in the ballot-box.

(4)  The polling place managers are each to make a list of provisional votes. Each polling place manager is to note on the list:

(a)  the giving of a ballot-paper at the polling place where the polling place manager is in charge to an elector who has made a declaration under this Subdivision, and

(b)  the number of such votes delivered or sent to the returning officer from that polling place (or, if the polling place manager is the returning officer, retained by him or her).

320F   Provisional voting at pre-poll voting offices and declared institutions

(1)  This Subdivision extends to voting at a pre-poll voting office, subject to the following:

(a)  a reference to a polling place is taken to include a reference to a pre-poll voting office,

(b)  a reference to a polling place manager is taken to include a reference to a pre-poll voting officer.

(2)  This Subdivision (other than clause 320C) extends to voting at a declared institution, subject to the following:

(a)  a reference to a polling place is taken to include a reference to a declared institution, and

(b)  a reference to a polling place manager is taken to include a reference to a pre-poll voting officer at the declared institution.

Subdivision 2 Pre-poll voting at pre-poll voting offices

321   Pre-poll voting: qualifications

A person is qualified to vote before election day under this Subdivision if the person:

(a)  will not throughout the hours of polling on election day be within the ward or area for which the election is being held, or

(b)  will not throughout the hours of polling on election day be within 8 kilometres by the nearest practicable route of any polling place at which he or she is entitled to vote, or

(c)  will throughout the hours of polling on election day be travelling under conditions that prevent him or her from attending at any such polling place to vote, or

(c1)  is disabled and so will be prevented from attending at any such polling place to vote, or

(c2)  is prevented by approaching maternity from attending at any such polling place to vote, or

(d)  is, by reason of that person’s membership of a religious order or religious beliefs, prevented from attending at any such polling place or prevented from voting throughout the hours of polling on election day or throughout the greater part of those hours, or

(e)  will be, at a place other than a hospital, caring for another person who requires his or her care for medical reasons and so will be prevented from attending at any such polling place to vote, or

(f)  will, by reason of being engaged for fee, gain or reward in any work throughout the hours of polling on election day, be prevented from attending at any such polling place to vote, or

(g)  is a silent elector, or

(h)  is a person with a disability (within the meaning of the Anti-Discrimination Act 1977), or

(i)  believes that attending a polling place on election day will place the personal safety of the person or of members of the person’s family at risk.

322   (Repealed)

323   Pre-poll voting procedure

(1) Application may be made
A person qualified under this Subdivision may apply for a pre-poll ballot paper. The application is to be made orally:

(a)  by the elector in person, and

(b)  to a pre-poll voting officer at a place, on a day and during hours, respectively appointed by or under clauses 298 and 326.

(2) Oral declaration by elector
The elector is to make an oral declaration to a pre-poll voting officer stating:

(a)  the name under which the elector claims to vote and such other particulars as the officer requires for the purpose of checking the name on the officer’s authorised copy of the roll, and

(b)  that the elector is entitled to vote at the election, and

(c)  that the elector has not already voted in connection with the election and will not vote anywhere else in connection with the election, and

(d)  the ground on which the elector is making the application.

(3)  (Repealed)

(4) Questions
A pre-poll voting officer may, and must if requested to do so by any scrutineer, put to the elector who made the application under this clause any of the questions set out in clause 339 that are applicable to the case.

(5) Ballot-paper to be handed to elector
If the elector answers the questions satisfactorily or no questions are to be put to the elector, the pre-poll voting officer must hand to the elector a ballot-paper in Form 4, 5 or 6 that is initialled on the front by the officer.

(6) Record of voting
The pre-poll voting officer is to make an appropriate notation on the officer’s authorised copy of the roll of electors to show that the elector has received a ballot-paper.

(7) Delivery of ballot-paper to elector
On receiving a pre-poll ballot-paper, the elector is to:

(a)  go alone to an unoccupied space set aside for voting at the pre-poll voting office, and privately record his or her vote there on the ballot-paper, and

(b)  fold the ballot-paper so as to conceal the vote marked on it, and then put it in the pre-poll ballot-box without unfolding it, and

(c)  leave the pre-poll voting office.

(8)  (Repealed)

324   Pre-poll ballot-box to be delivered or sent to returning officer

A pre-poll ballot-box is to be delivered or sent unopened to the returning officer as soon as the ballot-box is no longer required for further voting.

325   Surrender of postal ballot-papers

An elector to whom a postal ballot-paper and form of declaration have been issued is not entitled to vote in accordance with this Subdivision unless the elector first delivers to a pre-poll voting officer the elector’s postal ballot-paper and form of declaration for cancellation.

326   Pre-poll voting offices and times

(1)  The pre-poll voting office for the returning officer is to be used for the purpose of enabling electors to vote in person before election day in accordance with this Subdivision during the ordinary office hours of the council between the twelfth and second day before election day, between 9 am and 6 pm on the day preceding election day and during such further period on any such day as the election manager may determine.

(2)  In addition, one or more other pre-poll voting offices are to be used for the purpose of enabling electors to vote in person before election day in accordance with this Subdivision between such hours and on such day or days, being between the twelfth and first days before election day, as the election manager may determine for that office.

(3)  The pre-poll voting officer at each pre-poll voting office is to ensure that a copy of each candidate information sheet is displayed at the pre-polling voting office.

(4)  Nothing in this clause prevents the offices referred to in this clause from being used for other purposes in connection with the election.

Notes. 

1   (Repealed)

2   See clause 387 as to spoilt ballot-papers and clause 388 as to the assistance of electors.

Subdivision 3 Declared institution voting

327   Declared institutions

(1)  The election manager may, not later than on the nomination day, declare an institution in an area to be a declared institution for the purpose of enabling permanent or temporary residents of the institution who are electors of the area to vote in person before election day.

(2)  An institution may be declared under this clause only if it is a nursing home, hospital or similar institution in which a polling place has not been appointed.

328   Taking of poll at declared institutions

(1)  The returning officer for an area in which a declared institution is situated must assign one or more pre-poll voting officers to take the poll at the institution.

(2)  The pre-poll voting officers may, on any day during the 7 days before election day appointed by the election manager, enter into and remain in the institution for the purpose of taking the poll at the institution.

329   Entitlement to vote at declared institutions

(1)  An elector who:

(a)  is, for the time being, a permanent or temporary resident of a declared institution, and

(b)  has, by message to the returning officer for the area in which the institution is situated or a pre-poll voting officer assigned to take the poll at the institution, requested an opportunity to record his or her vote at the institution,

      is entitled to vote under this Subdivision while the pre-poll voting officers are at the institution for the purpose of taking the poll.

(2)  An elector to whom a postal vote certificate and postal ballot paper have been issued is not entitled to vote under this Subdivision unless he or she first delivers for cancellation to a pre-poll voting officer who takes the poll at the institution of which the elector is a permanent or temporary resident, his or her postal vote certificate and postal ballot paper.

(3)  A person to whom any message referred to in subclause (1) (b) is given for delivery to a pre-poll voting officer must, unless otherwise ordered on medical grounds by a legally qualified medical practitioner, deliver the message to a pre-poll voting officer before, or forthwith after, a pre-poll voting officer enters, for the purpose of taking the poll, the declared institution of which the person making the request is a permanent or temporary resident.

Maximum penalty: 0.5 penalty unit.

330   Procedure for voting at declared institutions

(1) Opportunity to vote to be given
The pre-poll voting officers must afford an elector entitled to vote under this Subdivision the opportunity to record his or her vote by visiting the elector at the declared institution of which the elector is, for the time being, a permanent or temporary resident.

(2) Visit may be forbidden on medical grounds
A visit to an elector must not be made under this clause if the pre-poll voting officer is informed, by a legally qualified medical practitioner or member of the staff of the declared institution of which the elector is, for the time being, a permanent or temporary resident, that the visit is forbidden, on medical grounds, by a legally qualified medical practitioner.

(3) Oral declaration by elector
The elector is to make an oral declaration to a pre-poll voting officer stating:

(a)  the name under which the elector claims to vote and such other particulars as the officer requires for the purpose of checking the name on the officer’s authorised copy of the roll, and

(b)  that the elector is entitled to vote at the election, and

(c)  that the elector has not already voted in connection with the election and will not vote anywhere else in connection with the election.

(4)  (Repealed)

(5) Questions
A pre-poll voting officer may, and must if requested to do so by any scrutineer, put to an elector visited by him or her under this Subdivision any of the questions set out in clause 339 that are applicable to the case.

(6) Ballot-paper to be handed to elector
If the elector answers the questions satisfactorily or no questions are to be put to the elector, the pre-poll voting officer must hand to the elector a ballot-paper in Form 4, 5 or 6 that is initialled on the front by the officer.

(7) Record of voting
The pre-poll voting officer is to make an appropriate notation on the officer’s authorised copy of the roll of electors to show that the elector has received a ballot-paper.

(8) Delivery of ballot-paper to elector
On receiving the ballot-paper, the elector is to:

(a)  privately record his or her vote on the ballot-paper, and

(b)  fold the ballot-paper so as to conceal the vote marked on it, and then put it in the declared institutions ballot-box without unfolding it.

(9)  (Repealed)

331   Declared institutions ballot-box to be delivered or sent to returning officer

A declared institutions ballot-box is to be delivered or sent unopened to the returning officer as soon as the ballot-box is no longer required for further voting.

Subdivision 4 Mobile booths

332   Mobile booths in convalescent homes, hospitals or similar institutions

(1)  Mobile polling may take place for the purposes of the Act in any convalescent home, hospital or similar institution in accordance with section 87A of the Parliamentary Electorates and Elections Act 1912.

(2)  Section 87A of the Parliamentary Electorates and Elections Act 1912 applies to voting at a mobile polling booth under the Act in any convalescent home, hospital or similar institution in the same way as it applies to voting at a mobile polling booth under the Parliamentary Electorates and Elections Act 1912.

(3)  No offence under the Parliamentary Electorates and Elections Act 1912 (as applied by this clause) applies under this Regulation.

332A   Mobile booths for pre-poll voting in remote local government areas

(1) Electoral Commission’s functions
The Electoral Commission:

(a)  may declare an area to be a remote area for the purposes of this clause, and

(b)  may determine the places in that area that a team will visit for the purposes of this clause, and

(c)  may determine the days and times when a team will visit those places (such a day must be after nomination day and before election day or a day to which the polling is adjourned), and

(d)  must take such steps as it thinks fit to give public notice of:

(i)  the places determined under paragraph (b), and

(ii)  the days and times determined under paragraph (c) when a team will visit such a place for the purposes of this clause.

(2) Teams
A team consists of two or more election officials, one of whom must be a pre-poll voting officer who is designated by the Electoral Commission as team leader. The team leader is to exercise the functions of the pre-poll voting officer under the following provisions of this clause.

(3) Visits and variation of places, days or times
A team must make a visit or visits as notified under subclause (1) (d), but, if the team is unable for reasonable cause, or the pre-poll voting officer considers it inappropriate, to make such a visit, the officer may substitute another place, day or time for the visit and, in that event, must:

(a)  take such steps as he or she thinks fit to give public notice of the substituted place, day or time, and

(b)  inform the Electoral Commission.

(4) Failure to visit does not invalidate election result
Any failure by a team to make a visit in accordance with this clause does not invalidate the result of the election.

(5) Voting
At any time when a team is at a place for the purposes of taking votes under this clause in an election:

(a)  the pre-poll voting officer must have a pre-poll ballot-box, ballot-papers and such other things as are necessary for the votes of electors to be taken at the place, and

(b)  every person at the place who is entitled to vote in the election for the area is entitled to have his or her vote taken under this clause, and

(c)  for purposes of, and in connection with, the taking of votes under this clause:

(i)  the place is taken to be a pre-poll voting office, and

(ii)  the pre-poll voting officer is taken to be the pre-poll voting officer at that office, and

(d)  an elector’s vote is so far as is reasonably practicable to be taken and dealt with in all respects as if the vote were recorded at a pre-poll voting office under usual conditions, but the following provisions are to be disregarded for this purpose:

(i)  clause 321 regarding the qualifications to vote before election day,

(ii)  clause 326 regarding pre-poll voting times and candidate information sheets.

(6) Ballot-box to be secured and forwarded to returning officer
At the end of the last visit made by a team for the purposes of this clause, the pre-poll voting officer must, in the presence of any other election official assisting the officer and any scrutineers who are present:

(a)  publicly close, fasten, seal and take charge of the ballot-box used by the officer for the purposes of this clause, and

(b)  with the least possible delay, forward it for the purposes of scrutiny to the returning officer for the area concerned.

(7) Relationship of this clause to other provisions
In relation to an area declared by the Electoral Commission to be a remote area, and without affecting subclause (5) (d), the provisions of this clause apply in addition to, and without derogation from, the application of any other provision of this Regulation. However, any such other provision applies with any necessary modifications.

Subdivision 5 Miscellaneous

333   Assistance of officers

In this Part, a reference to a returning officer, a polling place manager or a pre-poll voting officer includes a reference to an election official appointed to assist the officer in the performance of his or her duties.

Division 8 Voting on election day

334   (Repealed)

335   Polling place—arrangements

(1) Assignment of polling place manager
The returning officer must assign an election official to preside at each polling place as polling place manager.

(2) Assignment of other election officials to assist
The returning officer must assign at least one other election official to assist in taking the poll at a polling place.

(3) Returning officer polling place manager
If the returning officer’s instrument of appointment or another instrument issued by the election manager authorises him or her to do so, the returning officer may act as the polling place manager at a polling place, in which case the returning officer is taken to be a polling place manager duly assigned to preside at the polling place.

(4) Assignments to be in writing
Assignments under this clause must be made in writing.

(5) Functions of polling place managers and other election officials
The functions of polling place managers and other election officials are, subject to the Act and this Regulation, to be as determined by:

(a)  in relation to an election administered by a general manager—the returning officer, or

(b)  in relation to an election administered by the Electoral Commissioner—the Electoral Commissioner.

336   Hours of voting

(1)  The voting at a poll is to commence at 8 am and close at 6 pm on the same day. A person entitled to vote who at the time of closing the poll is within the polling place is to be permitted to vote.

(2)  This clause does not apply to any form of voting under Division 7 (Postal and other special types of voting) of this Part.

337   Scrutineers

(1)  Each candidate may, by instrument in writing signed by the candidate, appoint scrutineers to be present at each place at which polling is carried out, ballot-papers are scrutinised or votes are counted.

(2)  In the case of candidates belonging to a group, such an appointment may be made by any or all of them.

(3)  A scrutineer, on presentation to an election official of his or her instrument of appointment as scrutineer, is entitled to be present in accordance with his or her appointment under this clause.

(4)  A scrutineer must, on demand by an election official, produce his or her instrument of appointment as scrutineer for inspection.

(5)  A candidate in an election cannot be a scrutineer in relation to the same election or in relation to simultaneous elections in the same area.

(6)  Nothing in this clause entitles a candidate or group to be represented by more than one scrutineer at any one place at which polling is carried out, ballot-papers are scrutinised or votes are counted.

(7)  The separate tables or stations within any building, room or other location at which polling is carried out, ballot-papers are scrutinised or votes are counted are taken to be separate places for the purposes of subclause (6).

338   Where electors may vote

A person who is qualified as an elector in respect of a ward (or, if an area is not divided into wards, in respect of an area) is entitled to vote at any polling place appointed for the ward (or area).

339   Questions put to elector

(1)  A person claiming to vote at a polling place must state to an election official the name under which the person claims to vote, and such other particulars as the official requires for the purpose of checking that name on the authorised copy of the roll.

(2)  The election official must check that the name given by the person is on the authorised copy of the roll for the ward or area for which the polling place has been appointed.

(3)  The election official may (and must if required by a scrutineer) require any such person to sign his or her name or make his or her mark in a book to be kept for that purpose.

(4)  The election official may (and must if required by a scrutineer) put to the person, before giving the person a ballot-paper, questions in the following form:

1.  Are you the person whose name appears as ............... [name] in the roll of electors for ............... ward of ............... area?

2.  What is your date of birth?

3.  Are you:

(a)  an Australian citizen, or

(b)  a British subject (other than an Australian citizen) who was on a Commonwealth or State of New South Wales electoral roll on 25 January 1984?

4.  Are you disqualified from voting at this election by section 266 of the Local Government Act 1993?

5.  Have you already voted at this election?

(5)  A person who:

(a)  fails to satisfy a requirement under subclause (1) or (3), or

(b)  does not answer “yes” to questions 1 and 3, and “no” to questions 4 and 5, in subclause (4), or

(c)  whose answer to question 2 in subclause (4) does not correspond to the person’s date of birth as appearing on the authorised copy of the roll of electors,

      must not be given a ballot-paper and must not be allowed to vote.

(6)  However, if a request for a person’s place of living not to be included in a roll of electors has been granted under section 739 of the Act, the person need not indicate a place of living in response to a requirement under subclause (1) but instead the person is to make a declaration of residence on an envelope in the form approved by.

(i)  in relation to an election administered by a general manager of a council—the Director-General, or

(ii)  in relation to an election administered by the Electoral Commissioner—the Electoral Commissioner.

(7)  This clause does not prevent a person from voting:

(a)  because of errors or omissions in the entry of the person’s name or date of birth as appearing on the authorised copy of the roll of electors if he or she satisfies the election official of his or her identity as the person referred to in the authorised copy of the roll, or

(b)  because the person’s name is not on the authorised copy of the roll if he or she complies with Subdivision 1A of Division 7.

340   Voting by elector with confidential address

(1)  An elector who has made a declaration of residence under clause 339 is to mark and fold the ballot-paper and return the folded ballot-paper to an election official.

(2)  In the presence of the elector and any scrutineers present, the election official is to enclose the folded ballot-paper in the envelope containing the declaration of residence and addressed to the returning officer and seal the envelope.

(3)  The election official is to deliver or send the envelope to the returning officer.

(4)  The returning officer is to examine the declaration on the unopened envelope and ascertain from the Electoral Commission or the general manager whether the residence specified in the declaration is the residence specified in the appropriate request (as affected by any change of residence annotated on the request) under section 739 of the Act.

(5)  If the declaration is in order and the residence is the appropriate one, the returning officer is to open the envelope containing the ballot-paper, extract the ballot-paper and, without damaging the writing on the envelope, place the ballot-paper still folded in the ballot-box for provisional votes.

(6)  If the declaration is not in order, or the residence is not the appropriate one, the returning officer is to leave the envelope containing the ballot-paper unopened.

341   Delivery of ballot-paper to elector

(1)  An election official is to deliver a ballot-paper initialled on the front by an election official to each person who is entitled to vote.

(2)  The election official is to make a notation, in the manner and form specified by the Electoral Commission, on the official’s authorised copy of the roll of electors to show that the elector has received a ballot-paper.

342   Voting

After receiving a ballot-paper, an elector is to:

(a)  go alone to an unoccupied space set aside for voting at the polling place, and privately record his or her vote there on the ballot-paper, and

(b)  fold the ballot-paper so as to conceal the vote marked on it, and then put it in the ballot-box without unfolding it, and

(c)  leave the polling place.

343, 344   (Repealed)

Division 9 Scrutiny and counting

345   Informal ballot-papers

(1)  A ballot-paper of an elector at an election is informal if:

(a)  the elector has failed to record a vote on it in the manner directed on it, or

(b)  it has not been initialled on the front by an election official, or

(c)  it contains a mark or writing that, in the returning officer’s opinion, would enable the elector to be identified.

(2)  Despite subclause (1), a ballot-paper of an elector at an election in which only one candidate is to be elected is not informal merely because a tick or a cross has been placed in one square and the other square or squares have been left blank. In such a case the tick or the cross is to be treated as a first preference.

(3)  (Repealed)

(4)  Despite subclause (1), a ballot-paper of an elector at an election is not informal merely because a preference (other than a first preference) has been repeated or omitted so long as the ballot-paper shows at least the minimum number of preferences required by the directions.

(5)  Despite subclause (1), a ballot-paper of an elector at an election is not informal merely because it has not been initialled on the front by an election official, so long as it bears the mark referred to in clause 305 (2).

(6)  Despite subclause (1), a ballot-paper of an elector at an election is not informal by virtue of the existence of an unnecessary mark on the ballot-paper if, in the opinion of the returning officer, the elector’s intention is clearly indicated on the ballot-paper.

(6A)  Despite subclause (1), a ballot-paper is not informal by reason only that the elector has placed one or more numbers, a tick or one or more crosses adjacent to but outside a square or squares if, in the opinion of the returning officer, the elector’s intention is clearly indicated on the ballot-paper. In such a case, each such number, tick or cross is taken to have been placed within the relevant square.

(7)  Nothing in subclause (2) authorises any person to encourage a voter to place a tick or a cross in a square on a ballot-paper.

Note. Section 308C of the Act makes provision concerning the formality of ballot-papers where the voter marks, crosses or ticks a group voting square, or where the ballot papers contain the name of a candidate whom a court has declared to be incapable of being elected.

346   Persons present at scrutiny and count

The Electoral Commissioner or persons authorised by the election manager, election officials, scrutineers and police officers on duty are entitled to be present at each place at which polling is carried out, ballot-papers are scrutinised or votes are counted.

347   (Repealed)

348   Initial scrutiny of ballot-papers and counting of votes

(1)  On the close of the poll at an election each polling place manager must with the assistance of the election officials, and in the presence of the scrutineers, then present and on duty at the polling place:

(a)  open the ballot-box, and

(b)  scrutinise the ballot-papers, and

(c)  reject the informal ballot-papers, and

(d)  place the envelopes containing postal votes and provisional votes on one side as they are taken from the ballot-box, and

(e)  count:

(i)  the first preferences recorded for each candidate and group of candidates, and

(ii)  the number of informal votes, and

(iii)  the number of envelopes containing declarations under this Part.

(2)  The polling place manager must send to the returning officer returns in the form approved by the Director-General (in relation to an election administered by the general manager of a council) or the Electoral Commissioner (in relation to an election administered by the Electoral Commissioner):

(a)  stating the details of those counts, and

(b)  signed by:

(i)  the polling place manager and another election official, and

(ii)  any scrutineer who desires to sign the returns.

349   Sending ballot-papers to returning officer

(1)  The polling place manager must then, in the presence of the witnesses referred to in clause 348 (1), make up:

(a)  in one parcel the ballot-papers classed as formal and the ballot-papers classed as informal, and

(b)  in a second parcel:

(i)  the envelopes containing postal votes and the envelopes containing provisional votes, and

(ii)  the ballot-papers that have not been used, and

(iii)  the cancelled postal ballot-papers and forms of declaration, and

(iv)  the spoilt ballot-papers, and

(v)  the list of provisional votes, and

(c)  in a third parcel the certified printed copies of the rolls supplied to the polling place manager, signed by the polling place manager, and all books, rolls and papers (except the ballot-papers and the lists of ballot-papers) kept, used, and received by the polling place manager in connection with polling, and

(d)  if a notation has been made on an electronic copy of the roll of electors, or on another file, on a computer to show the delivery of a ballot-paper to an elector—in a fourth parcel a copy of the electronic copy of the roll, or other file, so marked by that recording (such as on a memory stick or a disc as directed by the Electoral Commissioner).

(2)  The polling place manager is to do the following:

(a)  seal the parcels,

(b)  permit any of the scrutineers who wish to do so to affix their seals to the parcels,

(c)  endorse the parcels with descriptions of their contents and with the name of the ward and area, the name of the polling place, and the date of the polling,

(d)  sign with his or her name the endorsement on each parcel,

(e)  deliver or send the parcels to the returning officer (except if the polling place manager’s functions are being exercised by the returning officer).

(3)  The returning officer may (and must if so required by a scrutineer) have the parcels opened, and have the ballot-papers scrutinised and counted in the presence of the election officials, scrutineers and police officers then present and on duty.

(4)  During such scrutiny, the returning officer must:

(a)  reject any ballot-paper classed as formal by the polling place manager if, in the returning officer’s opinion, it is informal, and

(b)  accept any ballot-paper classed as informal by the polling place manager if, in the returning officer’s opinion, it is formal.

350   Checking of ballot-papers in sealed envelopes

(1) Postal votes
The returning officer must on election day (at any time after 8 am) open the ballot-boxes containing postal votes received by the returning officer and take all the envelopes from them.

(2)  Postal votes received after the close of the poll but before 6 pm on the first business day following election day (including those delivered to polling place managers on election day under clause 318 (5)) are to be dealt with in the same way as postal votes received before the close of the poll.

(3)  The returning officer is then to do the following or have the following done:

(a)  count the sealed ballot-paper envelopes unopened and record the count,

(b)  check the names on the envelopes against the copy of the roll of electors and, if the Form 8 declaration on the envelope has been duly signed and witnessed, mark the copy of the roll of electors in the manner determined by the Electoral Commission,

(c)  turn the sealed ballot-paper envelope so that the declaration is face downwards, then open the envelope (without damaging the writing on it) and take out the ballot-paper and, without inspecting or unfolding it or allowing any other person to do so, place it in a securely fastened ballot-box for further scrutiny,

(d)  open the ballot-box, take out the ballot-papers, unfold and scrutinise them and reject the informal ones.

(e), (f)  (Repealed)

(4) Provisional votes
The returning officer must:

(a)  on election day (at any time after 8 am) produce all the sealed envelopes containing provisional votes cast before election day, and

(b)  on the close of poll produce all the sealed envelopes containing provisional votes cast on election day,

      and deal with them in accordance with subclause (5).

(5)  The returning officer is to do the following or have the following done in relation to the envelopes referred to in subclause (4):

(a)  count the sealed ballot-paper envelopes unopened and record the count,

(b)  examine the declaration on each envelope before it is opened and, if necessary, make inquiries to determine whether the person who signed the declaration was on the day of polling:

(i)  in relation to a declaration made under clause 320C—entitled to be enrolled on the residential roll for the area or ward concerned, or

(ii)  in any other case—entitled to vote,

(c)  if the declaration is in order and the returning officer is satisfied that the voter was, on the day of polling:

(i)  in relation to a declaration made under clause 320C—entitled to be enrolled on the residential roll for the area or ward concerned, or

(ii)  in any other case—entitled to vote,

      the returning officer is to open the envelope containing the ballot-paper, extract the ballot-paper and, without damaging the writing on the envelope, place the ballot-paper still folded in a securely fastened ballot-box for further scrutiny,

(d)  if the declaration is not in order, or it appears to the returning officer that the elector is not entitled to vote or was, on the day of polling, not entitled to be enrolled on the residential roll for the area or ward concerned, the returning officer is to leave the envelope containing the ballot-paper unopened,

(e)  after dealing with all the envelopes and ballot-papers in accordance with paragraphs (c) and (d), open the ballot-box, take out the ballot-papers, unfold and scrutinise them and reject the informal ones.

(6)  (Repealed)

351   Finalising the count

(1)  The returning officer must then do the following or have the following done:

(a)  complete the count by including the postal, pre-poll, declared institution and provisional votes,

(b)  ascertain the result of the count in accordance with Schedule 4 or 5, depending on the system of election,

Note. Section 285 of the Act specifies the circumstances in which the optional preferential (Schedule 4) and the proportional (Schedule 5) systems of election are to be used.

(c)  inform the persons present of the result of the count,

(d)  immediately notify the election manager of the result of the count,

(e)  inform the candidates (in person, in writing, by facsimile, by telephone, by email, by text message or in any other way) as soon as practicable after the result is ascertained:

(i)  of the result of the count, and

(ii)  when the returning officer’s declaration under clause 356 will be available for inspection at the office of the relevant council, and

(iii)  that the information contained in a notice under clause 356 (5) is to be published on the election manager’s internet website for at least one month,

(2)  For the purpose of ascertaining the result of the count, the returning officer may cause some or all of the ballot-papers to be sent to a central counting office administered by the election manager to be counted in accordance with arrangements approved by the election manager.

352   Double candidature: candidate elected as mayor

(1)  If, in any election, one or more of the candidates for election as councillor for a ward in an area (or for an area) are also candidates for election as mayor of the area, the counting of votes in the election of the mayor is to be completed, and the result obtained, before any distribution of preferences in the election of councillors.

(2)  Then the count in the election of councillors is to continue, treating the person who has already been elected as mayor as not being a candidate for election as councillor.

(3)  Each preference indicated on ballot-papers in the election of councillors for the person elected as mayor is disregarded and any subsequent preferences are treated as if the numbers representing them had been reduced by one.

353   Recount

(1)  At any time before the declaration of the poll:

(a)  a candidate may request a recount of the ballot-papers used in the ward or area for which the candidate was nominated, and

(b)  the election manager may direct the returning officer to recount any ballot-papers used in the election.

(2)  A request under subclause (1) (a) must:

(a)  be in writing, and

(b)  be signed by the candidate, and

(c)  set out the reasons for the request, and

(d)  be lodged with the returning officer within 24 hours after the candidate has been informed by the returning officer of the result of the count.

(3)  The returning officer must again have the ballot-papers scrutinised and counted and, if necessary, have any other papers used at the election inspected, if:

(a)  a request is received under subclause (1) (a) and the candidate has paid to the returning officer, on behalf of the council, a deposit to cover the cost of the recount and the ballot-papers referred to in the request have not already been recounted, or

(b)  a direction is received in accordance with subclause (1) (b), or

(c)  the returning officer in any case believes it necessary.

(4)  The deposit is to be determined by reference to a scale of charges fixed by the election manager before election day.

354   Who pays for the recount?

(1)  If a recount of ballot-papers is conducted under clause 353 (3) (b) or (c), the council is to pay for the recount.

(2)  If a recount of ballot-papers is conducted under clause 353 (3) (a) and the recount results in an alteration in the candidates who are elected, the deposit referred to in that paragraph is to be refunded to the candidate.

(3)  If a recount of ballot-papers is conducted under clause 353 (3) (a) and the recount does not result in an alteration in the candidates who are elected, the expense of the recount is to be paid out of the deposit and any remainder is to be refunded to the candidate, and any shortfall paid by the council.

355   Result of recount

Immediately after the completion of a recount of ballot-papers, the returning officer must notify the election manager of the result of the recount.

356   Declaring the election

(1)  The election manager is to approve of the returning officer’s declaring the election in writing as soon as practicable after the notification of the result of any recount or it becomes clear that no recount will be required.

(2)  The declaration is to be signed by the returning officer and is to state the number of votes recorded for each candidate, the names of the candidates declared elected (being the names under which those candidates were nominated by the returning officer) and the ward or area for which they have been elected.

(3)  After the election is declared, the election manager must:

(a)  display the written declaration in a conspicuous position at the office of the relevant council, and

(b)  deliver or send a copy of the written declaration to the Director-General, the Secretary of the Local Government and Shires Associations of New South Wales, and the relevant general manager (in relation to an election administered by the Electoral Commissioner) or the Electoral Commissioner (in relation to an election administered by a general manager).

(c)  (Repealed)

(4)  The general manager of a council must, on application to the council by any person, deliver or send to the person a copy of the written declaration.

(5)  The election manager must cause the information in the declaration to be published on the election manager’s internet website for at least one month.

(6)  (Repealed)

(7)  The election manager must insert, in a newspaper circulating generally in the State or another newspaper circulating in the relevant area or both, a notice stating:

(a)  the names of the candidates declared elected, and

(b)  the ward or area for which they have been elected, and

(c)  that detailed results are available on the election manager’s internet website and for inspection at the office of the relevant council, and

(d)  such other information relating to the election as the election manager thinks fit.

(8)  A notice under subclause (7) may relate to one or more areas.

Division 9A Provisions relating to activities during regulated periods

Subdivision 1 Preliminary

356A   Interpretation

(1)  In this Division:

display a poster or electoral material includes exhibit or post up the poster or electoral material; and publicly display means display, as so defined, within or within view of a public place.

electoral material means a how-to-vote card, poster or advertisement containing electoral matter, or anything else containing electoral matter.

electoral matter means:

(a)  any matter that is intended or calculated or likely to affect or is capable of affecting the result of any election held or to be held or that is intended or calculated or likely to influence or is capable of influencing an elector in relation to the casting of his or her vote at any election, or

(b)  the name of a candidate at any election, the name of the party of any such candidate, the name or address of the committee rooms of any such candidate or party, the photograph of any such candidate, and any drawing or printed matter that purports to depict any such candidate or to be a likeness or representation of any such candidate.

how-to-vote card means any card, handbill, pamphlet or notice having any voting directions within it, whether or not it contains:

(a)  any representation or partial representation of a ballot-paper or portion of a ballot-paper, or

(b)  any representation or partial representation apparently intended to represent a ballot-paper or portion of a ballot-paper.

joint owner of premises or property means one of two or more persons who own the premises or property jointly, whether as joint tenants or tenants in common or otherwise.

poster means any electoral matter printed, drawn or depicted on any material whatsoever and where any electoral matter is printed, drawn or depicted in sections, those sections, both severally and collectively, are to be treated as a poster.

recognised group of candidates means a group of candidates who have claimed under section 308A of the Act to have their names included in a group on the ballot-papers.

regulated period for an election means:

(a)  the period starting with the closing date and ending at 6 pm on election day, and

(b)  all days to which polling for the election is adjourned.

street address does not include a post office box number or a DX box number.

voting directions means directions or suggestions (whether express or implied) in relation to the casting of votes.

(2)  If premises or other property referred to in a provision of Subdivision 2 are subject to a lease for a term of 6 months or more, a reference in that provision to the owner or a joint owner of the premises or property is to be read as a reference to the lessee or a joint lessee of the premises or property.

Subdivision 2 Non-complying electoral material

356B   Non-complying electoral material

For the purposes of this Division, electoral material contravenes this Subdivision if:

(a)  the material contains voting directions intended or likely to mislead or improperly interfere with an elector in or in relation to the casting of his or her vote, or

(b)  the material contains an untrue or incorrect statement intended or likely to mislead or improperly interfere with an elector in or in relation to the casting of his or her vote, or

(c)  without limiting paragraph (b), the material contains information that is incorrect or misleading about whether a person is or is not:

(i)  a candidate for the election, or

(ii)  a candidate for a particular area or ward, or

(iii)  a member of a registered political party or recognised group of candidates, or

(iv)  endorsed by a registered political party, or

(d)  the material uses:

(i)  the name, an abbreviation or acronym of the name or a derivative of the name of a party respectively included in the Local Government Register of Political Parties (or a name or abbreviation resembling such a name, abbreviation, acronym or derivative) in a way that is intended or likely to mislead any elector, or

(ii)  the word “Independent” and the name or an abbreviation or acronym of the name or a derivative of the name of a party respectively included in that Register in a way that suggests or indicates an affiliation with that party (unless the name of the party in that Register includes the word “Independent”), or

(e)  in the case of material that contains voting directions—any of the directions are contrary to the requirements of the Act or this Regulation or are contrary to the directions or instructions contained in the relevant ballot-papers, including (for example) a direction:

(i)  to leave the ballot-paper blank, or

(ii)  to write or draw unauthorised matter on the ballot-paper, or

(iii)  to repeat or leave out a number when indicating preferences, or

(f)  the material could result in an elector casting an informal vote, or

(g)  the material contains a statement (express or implied) to the effect that voting is not compulsory, or

(h)  the material contains words that are or other matter that is obscene or offensive.

356C   Non-complying electoral material—additional provisions regarding how-to-vote cards

(1) Application of clause
Without limiting clause 356B, electoral material consisting of or containing a how-to-vote card contravenes this Subdivision if the card does not comply with this clause.

(2) Non-complying how-to-vote cards for registered political parties
A how-to-vote card containing voting directions as to how to vote for or in accordance with the recommendations of a registered political party does not comply with this clause if:

(a)  the party has endorsed no candidate for the election, or

(b)  the voting directions give a preference to a candidate not endorsed by it without first giving higher preferences to all candidates endorsed by it.

(3) Non-complying how-to-vote cards for recognised groups of candidates
A how-to-vote card containing voting directions as to how to vote for or in accordance with the recommendations of a recognised group of candidates does not comply with this clause if the voting directions give a preference to a candidate who is not a member of the group without first giving higher preferences to all candidates who are members of the group.

(4) Non-complying how-to-vote cards for individual candidates
A how-to-vote card containing voting directions as to how to vote for or in accordance with the recommendations of a particular candidate does not comply with this clause if:

(a)  whether or not the candidate is a member of a recognised group of candidates—the voting directions do not contain a voting direction for the candidate to receive the first preference, or

(b)  where the candidate is a member of a recognised group of candidates—the voting directions give a preference to a candidate who is not a member of the group without first giving higher preferences to all candidates who are members of the group.

(5) Non-complying how-to-vote cards using group voting squares—voting above and below the line
A how-to-vote card containing voting directions as to how to vote for or in accordance with the recommendations of a recognised group of candidates by using a group voting square does not comply with this clause if the voting directions also give preferences (“below the line”) for:

(a)  some only of the individual members of the group, or

(b)  individual members of the group in a different order from that appearing in the list of candidates in the group on the ballot-paper.

Note. Subclause (5) ensures that in these circumstances the material must be internally consistent, since voting by using a group voting square implies voting for all the candidates in the group and in the order in which their names appear.

(6) Non-complying how-to-vote cards without group voting squares—no indication of requirement to vote for at least half the candidates
A how-to-vote card containing voting directions as to how to vote without using group voting squares and that do not give preferences for at least half the number of candidates to be elected does not comply with this clause if the voting directions do not contain a statement as to how many other preferences must be marked on the ballot-paper.

(7) Non-complying how-to-vote cards relating to two or more areas
A how-to-vote card containing voting directions does not comply with this clause if the voting directions relate to two or more areas.

Subdivision 3 Offences applicable during regulated period

356D   Printing, publishing and distributing non-complying electoral material

A person must not, during the regulated period, print, publish or distribute electoral material that contravenes Subdivision 2.

Maximum penalty: 10 penalty units.

356E   Display of posters

(1)  A person must not, during the regulated period, publicly display or permit or cause to be publicly displayed, a poster containing or consisting of electoral material that contravenes Subdivision 2.

Maximum penalty: 10 penalty units.

(2)  A person must not, during the regulated period, display or permit or cause to be displayed a poster:

(a)  on or within any premises occupied or used by, or under the control or management of:

(i)  the Crown or a NSW Government agency, or

(ii)  any council or county council, or

(b)  on or within any other premises, unless the person:

(i)  was the owner or a joint owner of the premises, or

(ii)  performed the act concerned with the permission in writing of the owner or a joint owner of the premises.

Maximum penalty: 2.5 penalty units.

(3)  Subclause (2) (a) does not apply in relation to a poster:

(a)  on the outer wall, fence or other boundary of the grounds of an enclosure in which a building used for polling is situated, or

(b)  within the grounds of an enclosure in which a building used for polling is situated, or

(c)  on a vehicle on a road or road related area (within the meaning of the Road Transport (General) Act 2005), or

(d)  fixed or attached to a table or stall on a footpath or other public place at any time on the day of polling for an election.

356F   Writing, drawing or depicting electoral matter

(1)  A person must not, during the regulated period, write, draw or depict any electoral matter directly on any property, being a roadway, footpath, building, vehicle, vessel, hoarding or place (whether it is or is not a public place and whether on land or water).

Maximum penalty: 3 penalty units.

(2)  A person is not guilty of an offence under this clause if the person:

(a)  was the owner or joint owner of the property, or

(b)  performed the act concerned with the permission in writing of the owner or a joint owner of the property.

(3)  Without limiting subclause (2), a person is not guilty of an offence under this clause involving a vehicle, vessel or hoarding if the person:

(a)  was the owner or joint owner of the premises on which the vehicle, vessel or hoarding was situated, or

(b)  performed the act concerned with the permission in writing of the owner or a joint owner of the premises.

(4)  Subclauses (2) and (3) do not apply to any premises or property occupied or used by, or under the control or management of:

(a)  the Crown or a NSW Government agency, or

(b)  any council or county council.

356G   Name and address on electoral material

(1)  A person must not, during the regulated period, print, publish, distribute or publicly display electoral material (other than the announcement in a newspaper of the holding of a meeting), without legibly showing on the material:

(a)  the name and address of the person on whose instructions the material was printed, and

(b)  the name of the printer and the street address of the premises at which it was printed.

Maximum penalty: 5 penalty units.

(2)  If a newspaper contains electoral material and the name of the printer of the newspaper and the street address of the premises at which it was printed appear on the newspaper in accordance with any Act, subclause (1) does not require that name and address to be shown separately on the material itself.

(3)  Subclause (1) does not apply in relation to:

(a)  a T-shirt, lapel button, lapel badge, pen, pencil or balloon, or

(b)  a business or visiting card that promotes the candidacy of any person in an election, or

(c)  a letter or other card:

(i)  that bears the name and address of the sender, and

(ii)  that does not contain a representation or purported representation of a ballot paper for use in an election.

356GA   Authorisation of advertisements on electronic billboards, digital road signs etc to be displayed

A person must not, during the regulated period, display any electoral matter on an electronic billboard, digital road sign or other similar device, unless the matter contains, in visible, legible characters, the name and address of the person on whose instructions the matter was displayed.

Maximum penalty: 5 penalty units.

356GB   Publication of paid electoral advertisements on the internet

(1)  A person must not, during the regulated period, publish an advertisement containing electoral matter on the internet, or cause, permit or authorise such an advertisement to be published, if:

(a)  the advertisement is paid for by the person or another person, and

(b)  the name and address of the person who authorised the advertisement do not appear at the end of the advertisement.

Maximum penalty: 5 penalty units.

(2)  A person does not commit the offence in subclause (1) if the person establishes that the matter published on the internet forms part of a general commentary on a website.

(3)  In this clause, the address of a person means an address, including a full street address and suburb or locality, that is located in Australia at which the person can usually be contacted during the day, but does not include a post office box.

356H   Encouraging ticks or crosses on ballot-papers

A person must not, during the regulated period, print, publish, distribute or publicly display any electoral material that encourages any elector to place a tick or a cross in a square on a ballot-paper.

Maximum penalty:

(a)  in the case of corporation—50 penalty units, or

(b)  in any other case—10 penalty units.

356I   Defences and exceptions

(1) Defences
A person is not guilty of an offence for a breach of a provision of this Subdivision if it is established that:

(a)  the breach was not of a material nature, or

(b)  the breach was not intended, or was not likely, to mislead an elector in or in relation to the casting of his or her vote, or

(c)  the person was not aware that the act or omission concerned was a breach of the provision when it occurred and took all reasonable steps to remedy the breach when the person became aware that it was or may have been such a breach.

(2) Exceptions
Nothing in this Subdivision prohibits:

(a)  the display, writing, drawing or depicting of a sign on or at the office or committee room of a candidate or political party indicating only that the office or room is the office or committee room of the candidate or party, and specifying the name of the candidate, or the names of the candidates, or the name of the party concerned, or

(b)  the projection by means of any cinematograph or other similar apparatus of any electoral matter on to any screen in any theatre or public hall the subject of a development consent in force under the Environmental Planning and Assessment Act 1979 in relation to its use as a place of public entertainment, or

(c)  the display, writing, drawing or depicting of any poster within a hall or room that is being or is about to be used for a meeting held by or on behalf of a candidate in connection with an election, or

(d)  the display of any poster on or at the office of a councillor.

Subdivision 4 Additional offences applicable on pre-poll voting days

356J   Display of posters on pre-poll voting days

(1) Posters at pre-poll voting office
A person must not display, or cause to be displayed, any poster of any size:

(a)  within a pre-poll voting office, or

(a1)  within 6 metres of an entrance to a pre-poll voting office, or

(b)  on the exterior of a building used as a pre-poll voting office,

      on any day on which pre-poll voting is conducted at the pre-poll voting office.

Maximum penalty: 5 penalty units.

(2) Application of this clause to grounds of enclosure
If:

(a)  a building used as a pre-poll voting office is situated in grounds within an enclosure, and

(b)  the appointment by the election manager of the pre-poll voting office does not indicate whether or not the grounds are part of the pre-poll voting office,

      the grounds are not, but the building is, taken to be part of the pre-poll voting office for the purposes of subclause (1), unless a notice to the contrary is displayed under clause 356U. If such a notice is displayed, the grounds are taken to be part of the pre-poll voting office for the purposes of subclause (1).

356K   Canvassing on pre-poll voting days

(1) Canvassing in pre-poll voting office
A person must not:

(a)  canvass for votes, or

(b)  solicit the vote of any elector, or

(c)  induce any elector not to vote for any particular candidate or group of candidates, or

(d)  induce any elector not to vote at the election,

      within a pre-poll voting office on any day on which pre-poll voting is conducted at the pre-poll voting office.

Maximum penalty: 5 penalty units.

(2) Amplified canvassing audible in pre-poll voting office
A person must not contravene this subclause. This subclause is contravened if on any day on which pre-poll voting is conducted at a pre-poll voting office each of the following paragraphs apply:

(a)  the person engages in:

(i)  canvassing for votes, or

(ii)  soliciting the vote of an elector, or

(iii)  inducing an elector not to vote for a particular candidate or group of candidates, or

(iv)  inducing an elector not to vote at the election, and

(b)  the person engages, in any public or private place, in that activity any distance away from the pre-poll voting office, and

(c)  the person uses any of the following to engage in that activity:

(i)  a loud speaker,

(ii)  a public address system,

(iii)  an amplifier (whether fixed or mobile),

(iv)  a broadcasting van,

(v)  a sound system,

(vi)  radio equipment,

(vii)  any other equipment or device for broadcasting, and

(d)  that activity is audible within the pre-poll voting office.

Maximum penalty: 5 penalty units.

(3) Canvassing includes distributing electoral material
Without limiting the generality of subclause (1), a reference to canvassing for votes includes a reference to distributing electoral material, whether or not the material is registered in accordance with Subdivision 6.

(4) Application of this clause to grounds of enclosure
If:

(a)  a building used as a pre-poll voting office is situated in grounds within an enclosure, and

(b)  the appointment by the election manager of the pre-poll voting office does not indicate whether or not the grounds are part of the pre-poll voting office,

      the grounds are not, but the building is, taken to be part of the pre-poll voting office for the purposes of this clause, unless a notice to the contrary is displayed under clause 356U. If such a notice is displayed, the grounds are taken to be part of the pre-poll voting office for the purposes of this clause.

Subdivision 5 Additional offences applicable on election days

356L   Extended operation of this Subdivision

(1)  In the application of this Subdivision to electoral material, electoral matter is, without limiting the definition of that term in clause 356A, taken to include any matter consisting of an express or implicit reference to or comment on:

(a)  an election, or

(b)  any council or any previous council, or

(c)  any councillor or previous councillor, or

(d)  the Government, the Opposition, a previous Government or a previous Opposition, of this or any other State or Territory or of the Commonwealth, or

(e)  a member or former member of the Parliament of this or any other State or Territory or of the Commonwealth, or

(f)  a political party, a branch or division of a political party or a candidate in an election, or

(g)  an issue submitted to, or otherwise before, the electors in connection with an election.

(2)  References in this Subdivision to election day include references to all days to which polling is adjourned.

356M   Distribution of electoral material on election days

(1)  A person must not, in a public place, distribute any electoral material on election day unless the material has been registered under Subdivision 6 for the election.

Maximum penalty: 10 penalty units.

(2)  For the purposes of this clause and without limiting its operation, material is taken to be distributed if it is left in such a position and in such circumstances as to indicate that it is intended to be available for collection by members of the public who are in a public place.

(3)  This clause does not apply to the handing out, distribution, sale or otherwise making available of a newspaper by or on behalf of a newsagent, newspaper seller or distributor if the handing out, distribution, sale or making available is in the course of the newsagent’s, newspaper seller’s or distributor’s employment or business.

356N   Display of posters on election days

(1) Posters at polling place
A person must not, on election day, display or cause to be displayed any poster of any size:

(a)  within a polling place, or

(b)  within 6 metres of an entrance to a polling place, or

(c)  on the exterior of a building used as a polling place.

Maximum penalty: 5 penalty units.

(2) Posters in grounds of enclosure of polling place
Without limiting subclause (1), a person must not, on election day, display or cause to be displayed any poster exceeding 8,000 square centimetres in area within the grounds of an enclosure in which a building used for polling is situated.

Maximum penalty: 3 penalty units.

(3) Posters on boundary of enclosure of polling place
A person must not, on election day, display or cause to be displayed any poster exceeding 8,000 square centimetres in area on the outer wall, fence or other boundary of the grounds of an enclosure in which a building used for polling is situated.

Maximum penalty: 3 penalty units.

(4) Application of this clause to grounds of enclosure
If:

(a)  a building used as a polling place is situated in grounds within an enclosure, and

(b)  the appointment by the election manager of the polling place does not indicate whether or not the grounds are part of the polling place,

      the grounds are not, but the building is, taken to be part of the polling place for the purposes of subclause (1), unless a notice to the contrary is displayed under clause 356U. If such a notice is displayed, the grounds are taken to be part of the polling place for the purposes of subclause (1), and subclause (2) does not apply.

356O   Canvassing on election days

(1) Canvassing in or near polling place
A person must not:

(a)  canvass for votes, or

(b)  solicit the vote of any elector, or

(c)  induce any elector not to vote for any particular candidate, or

(d)  induce any elector not to vote at the election,

      on election day:

(e)  within a polling place, or

(f)  within 6 metres of an entrance to a polling place.

Maximum penalty: 5 penalty units.

(2) Amplified canvassing audible in or near polling place
A person must not contravene this subclause. This subclause is contravened if on election day each of the following paragraphs apply:

(a)  the person engages in:

(i)  canvassing for votes, or

(ii)  soliciting the vote of an elector, or

(iii)  inducing an elector not to vote for a particular candidate, or

(iv)  inducing an elector not to vote at the election, and

(b)  the person engages, in any public or private place, in that activity 6 metres or more from an entrance to a polling place, and

(c)  the person uses any of the following to engage in that activity:

(i)  a loud speaker,

(ii)  a public address system,

(iii)  an amplifier (whether fixed or mobile),

(iv)  a broadcasting van,

(v)  a sound system,

(vi)  radio equipment,

(vii)  any other equipment or device for broadcasting, and

(d)  that activity is audible:

(i)  within the polling place, or

(ii)  within 6 metres of an entrance to the polling place.

Maximum penalty: 5 penalty units.

(3) Canvassing includes distributing electoral material
Without limiting the generality of subclause (1), a reference to canvassing for votes includes a reference to distributing electoral material, whether or not the material is registered in accordance with Subdivision 6.

(4) Application of this clause to grounds of enclosure
If:

(a)  a building used as a polling place is situated in grounds within an enclosure, and

(b)  the appointment by the election manager of the polling place does not indicate whether or not the grounds are part of the polling place,

      the grounds are not, but the building is, taken to be part of the polling place for the purposes of this clause, unless a notice to the contrary is displayed under clause 356U. If such a notice is displayed, the grounds are taken to be part of the polling place for the purposes of this clause.

Subdivision 6 Registration of electoral material

356OA   Definition

In this Subdivision, electoral material registrar means:

(a)  in relation to an election administered by a general manager of a council—the relevant returning officer, or

(b)  in relation to an election administered by the Electoral Commissioner—the Electoral Commissioner.

356P   Application for registration of electoral material

(1) Application for registration may be made
For the purposes of clause 356M, an application may be made to the electoral material registrar for the registration of electoral material for a particular area for any one or more of the following:

(a)  a particular election of one or more councillors,

(b)  a particular election of mayor by electors,

(c)  a particular constitutional referendum, or two or more particular constitutional referendums being held at the same time,

(d)  a particular council poll, or two or more particular council polls being held at the same time.

(2) Applications by or on behalf of parties, groups or candidates
An application may be made:

(a)  by the registered officer of a registered political party—on behalf of the party, or

(b)  by the first candidate listed in a recognised group of candidates—on behalf of the group, or

(c)  by a candidate—on his or her own behalf.

(3) Applications by or on behalf of others
An application may be made:

(a)  by an officer or representative of an incorporated or unincorporated body (other than a registered political party or a recognised group of candidates) who is not a candidate—on behalf of the body, or

(b)  by an individual who is not a candidate—on his or her own behalf.

(4) Timing of application
An application may be made only during the period starting with nomination day and ending at 5 pm on the Friday that is 8 days before election day.

(5) Draft or sample to be provided
An application must contain a draft or sample of the electoral material.

(6) Alteration or replacement of draft or sample
The electoral material registrar may allow the draft or sample to be altered or replaced during the period specified in subclause (4) before agreeing to registration.

(7) Preliminary advice
A person authorised by subclause (2) or (3) to apply for registration of electoral material may, during the period specified in subclause (4), apply to the electoral material registrar for preliminary advice as to whether particular electoral material may be registered.

(8)  The electoral material registrar may provide that advice, even if the material is incomplete, but the application for registration of the material must nevertheless be made during that period.

(9) Manner and form of application
An application under this clause:

(a)  is to be in the form approved by:

(i)  in relation to an election administered by a general manager of a council—the Director-General, or

(ii)  in relation to an election administered by the Electoral Commissioner—the Electoral Commissioner, and

(b)  is to be signed by the applicant, and

(c)  may be delivered or sent (by post or otherwise) or may be transmitted by facsimile or email.

(10)  An application is not validly transmitted by email unless:

(a)  an image of the completed application signed by the applicant is included in or attached to the email, and

(b)  that image includes an image of the actual signature as appearing on the application.

356Q   Consideration of application for registration

(1) Complying material must be registered
The electoral material registrar must register the electoral material if satisfied that registration is not prohibited by this Subdivision.

(2) Refusal for non-complying application
However, the electoral material registrar may refuse to register the electoral material if the application for registration was not made in accordance with this Subdivision.

(3) When material must be refused registration
The electoral material registrar must not register the electoral material if it appears to the electoral material registrar that:

(a)  the material contravenes Subdivision 2, or

(b)  the material is, or contains a section, in a language other than English and the application for registration was not accompanied by:

(i)  an accurate translation into English of the material or section, and

(ii)  a declaration that the translation is accurate, or

(c)  the material does not include in legible characters:

(i)  the name and address of the person on whose instructions the material was printed, and

(ii)  the name of the printer and the street address at which is was printed, or

(c1)  the material does not clearly identify the person, political party, organisation or group on whose behalf the material is to be distributed, or

(d)  in the case of an application for registration purporting to be made on behalf of an entity referred to in clause 356P (2) or (3)—the application was not made by a person authorised by the relevant subclause to make the application, or

(e)  in the case of an application not purporting to be made on behalf of an entity referred to in clause 356P (2) or (3) for the registration of material that contains voting directions as to how to vote for or in accordance with the recommendations of such an entity—the application was not made by a person authorised by the relevant subclause to make an application on behalf of the entity, or

(f)  in the case of an application for the registration of material that contains any representation or indication (whether express or implied) that any candidate:

(i)  is a member of, or

(ii)  pursues or supports any or all of the objects or platform (whether with or without modification) of, or

(iii)  is affiliated in some way (whether officially or unofficially) with,

      a particular registered political party or recognised group of candidates—the application was not made by or with the consent of the registered officer of the party or the first candidate listed in the group.

(4) Offence for false statement in declaration about translated material
A person must not make a declaration for the purposes of subclause (3) (b) knowing that the translation of the material or section is inaccurate in a material respect.

Maximum penalty: 10 penalty units.

(5) Inquiries as to authenticity of application or consent
The electoral material registrar may make such inquiries as the electoral material registrar thinks fit to confirm the authenticity of:

(a)  an application, or

(b)  any consent referred to in subclause (3) (f).

356R   Registration of electoral material

(1) Certificate of registration
Registration of the electoral material is effected by the issue of a certificate of registration in respect of a draft or sample of the electoral material.

(2) Details to be included in certificate
The certificate of registration must specify:

(a)  the elections, constitutional referendums and council polls, and

(b)  the area,

      for which the electoral material is registered.

(2A) Form of certificate
A certificate of registration issued under this clause is to be in the form approved by:

(a)  in relation to an election administered by a general manager of a council—the Director-General, or

(b)  in relation to an election administered by the Electoral Commissioner—the Electoral Commissioner.

(3) Registration may be conditional or unconditional
Registration may be unconditional or subject to conditions specified in the certificate of registration.

(4) Evidence of registration
A certificate signed by the electoral material registrar and certifying that specified material was or was not registered:

(a)  on a specified day or during a specified period, or

(b)  for a particular election, constitutional referendum or council poll, or

(c)  for a particular area,

      is admissible in proceedings for an offence under clause 356G and is prima facie evidence of the matters certified.

(5) Immaterial differences not to affect registration
Electoral material is to be taken to be registered in accordance with this clause even though the material contains some differences from the draft or sample in respect of which the certificate of registration was issued, so long as the material is substantially the same as the draft or sample.

(6) Registration not a defence for certain offences
Registration of electoral material is not a defence to a prosecution for an offence under Subdivision 3 or 4.

(7) Copy of material and certificate to be available for inspection
A copy of electoral material registered under this clause and referring to an election, constitutional referendum or council poll for an area, and the relevant certificate of registration, must be available for inspection:

(a)  at the office of the returning officer for the area, during the hours of polling on election day and on all days to which the polling is adjourned, and

(b)  at such other places (if any), and during such of those hours, as the electoral material registrar determines,

      at the request of any person enrolled for the area or of any scrutineer.

356S   Revocation of registration or imposition of condition on registration

(1)  If the electoral material registrar is satisfied that electoral material was erroneously registered, the electoral material registrar may:

(a)  revoke the registration of the material, or

(b)  attach a condition to the registration of the material, requiring the material to be altered in a specified way, whether by way of omitting matter or inserting matter or both, or otherwise.

(2)  The revocation or condition takes effect from the time the revocation or condition is communicated to the candidates concerned or their representatives, and accordingly:

(a)  electoral material whose registration has been revoked ceases to be registered from that time, and

(b)  electoral material to whose registration a condition has been attached is from that time taken to be registered only if the condition is complied with.

Subdivision 7 Miscellaneous

356T   Confiscation of posters and other electoral material

(1) Confiscation by election officials
The returning officer or any polling place manager, or any other election official authorised by the returning officer or the polling place manager, may remove and confiscate, or cause to be removed and confiscated:

(a)  any poster displayed in contravention of Subdivision 4 or 5, or

(b)  any electoral material that is apparently available for distribution in contravention of Subdivision 5.

(2) Confiscation by police
Any police officer may remove and confiscate, or cause to be removed and confiscated:

(a)  any poster displayed in contravention of Subdivision 3, 4 or 5, or

(b)  any electoral material that is apparently available for distribution in contravention of Subdivision 5.

(3) Use of force
A police officer may use reasonable force for the purposes of this clause. This clause does not authorise any other person to use force.

(4) Confiscated material to be destroyed
Confiscated electoral material must be destroyed without undue delay, but destruction may be delayed if the material is or may reasonably be required for evidentiary purposes.

356U   Notice applying provisions to grounds of polling place

(1)  This clause applies for the purposes of clauses 356J, 356K, 356N or 356O, in a case where:

(a)  a building used for polling is situated in grounds within an enclosure, and

(b)  the appointment by the election manager of the pre-poll voting office or polling place concerned does not indicate whether or not the grounds are part of the pre-poll voting office or polling place.

(2)  The returning officer may, with the concurrence of the election manager, cause a notice to be displayed, during the hours of polling, at each entry to the grounds stating that those grounds are treated as part of the pre-poll voting office or polling place.

Note. Clauses 356J (2), 356K (4), 356N (4) and 356O (4) state the effect of displaying such a notice.

356V   Official notices

Nothing in this Division applies to the printing, publishing, distribution or display of official notices.

356W   Double jeopardy

A person is not liable to be convicted of both an offence under Subdivision 3 and an offence under Subdivision 4 or 5 if the offences arose out of the same circumstances.

Division 10 Offences

357   Penalty notices

For the purposes of section 314 of the Act, the prescribed form of a penalty notice is Form 15.

358   Misconduct in voting

(1)  A person must not do any of the following:

(a)  make a declaration (whether oral or written) that the person knows is false in respect of any matter or thing for which a declaration is required by this Regulation,

(b)  impersonate an elector for the purpose of voting at an election,

(c)  vote twice at an election,

(d)  knowingly put more than one ballot-paper in the ballot-box at a polling place (except if each of those ballot-papers relates to a different poll),

(e)  influence an elector’s vote by threats or inducements.

Maximum penalty: 10 penalty units.

(2)  This clause applies in relation to an election under clause 395 or 396 and to a constitutional referendum or council poll in the same way as it applies to elections under Chapter 10 of the Act.

359   False statements in forms

(1)  A person must not make a statement that the person knows is false in a paper relating to an election or poll under the Act, or in information supplied to the Electoral Commission or a general manager for the purposes of the preparation, maintenance, or revision of an electoral roll under the Act.

(2)  A person must not induce another person to make such a statement.

Maximum penalty: 10 penalty units.

360   Misconduct by witness to postal vote

(1)  A witness must not witness the signature of an elector to an application for a postal ballot-paper and a postal voting envelope unless the witness knows that the statements contained in the application are true, or is satisfied by the applicant’s answers to the witness’s inquiries or by other means that the statements contained in the application are true.

Maximum penalty: 5 penalty units.

(2)  The witness must not:

(a)  do anything to find out the elector’s vote, or

(b)  disclose to a third party any knowledge that the witness has of the vote of the elector, or

(c)  influence the vote of an elector voting by post in the presence of the witness.

Maximum penalty: 10 penalty units.

361   Misconduct in relation to postal voting

A person to whom an application for a postal ballot-paper and a postal voting envelope, or an envelope containing or purporting to contain a postal ballot-paper, is given by an elector for the purpose of delivery or sending to a returning officer, who has agreed to deliver or send the application or envelope, and who without reasonable excuse fails to deliver or send the application or envelope promptly is guilty of an offence.

Maximum penalty: 10 penalty units.

362   Misconduct by person present at pre-poll or declared institution voting

(1)  A person who is present when an elector is attending a pre-poll voting office or other place for the purpose of voting before election day or when an elector is visited by a pre-poll voting officer for the purpose of voting at a declared institution:

(a)  must comply with a lawful direction given to the person by an election official, and

(b)  must not communicate with the elector in relation to the vote, and

(c)  must not assist the elector or in any manner interfere with the elector in relation to the vote, and

(d)  must not look at the elector’s vote or do anything to find out how the elector voted.

(2)  A person is not guilty of an offence against this clause by virtue of anything done in accordance with clause 388.

Maximum penalty: 10 penalty units.

363   Other misconduct in relation to postal, pre-poll or declared institution voting

A person other than the elector must not mark or purport to mark a vote on a postal or pre-poll ballot-paper or a ballot-paper handed to an elector at a declared institution unless the person in so doing is acting under clause 388.

Maximum penalty: 10 penalty units.

364   Breach of secrecy

An election official or scrutineer who knows how a particular elector has voted must not disclose that knowledge.

Maximum penalty: 5 penalty units.

365   Obstruction of election officials

A person must not hinder or obstruct an election official or scrutineer in the exercise or performance of his or her functions.

Maximum penalty: 10 penalty units.

366   False answers to questions put by election officials

A person who, knowing the answer to be untrue, answers a question put to the person by an election official under Division 8 is guilty of an offence.

Maximum penalty: 10 penalty units.

367   Obstructing access

A person must not obstruct access to:

(a)  a polling place, a pre-poll voting office or a place being used for voting under clause 332A, or

(b)  a space set aside for voting at a polling place, a pre-poll voting office or a place being used for voting under clause 332A.

Maximum penalty: 0.5 penalty unit.

368   Persons present in polling place

(1)  A person must not remain in a polling place during polling or during the counting or the scrutiny of the ballot-papers.

(2)  A person who unlawfully remains in a polling place after being requested by an election official to leave the polling place is guilty of an offence.

(3)  This clause does not prevent:

(a)  the election manager, election officials, scrutineers, and police officers on duty, from being present during those times, or

(b)  persons engaged in voting (and not exceeding the number determined by the returning officer) from being present during polling for as long as is necessary in order for them to vote.

Maximum penalty: 5 penalty units.

369   Misconduct by scrutineers

(1)  A scrutineer must not within a polling place, pre-poll voting office, declared institution or mobile booth, while polling is in progress:

(a)  interfere with or influence an elector, or

(b)  communicate with any person except as necessary to carry out the scrutineer’s functions.

(2)  A scrutineer must obey the lawful directions of an election official.

(3)  A scrutineer does not breach subclause (1) merely by wearing the badge or emblem of a candidate or political party.

Maximum penalty: 10 penalty units.

370   Misconduct at polling place or pre-poll voting office

A person must not, without lawful authority:

(a)  remove a ballot-paper from a polling place or pre-poll voting office, or

(b)  enter a space set aside for voting in a polling place while another person is in that space, or

(c)  remain in a space set aside for voting in a polling place or at a pre-poll voting office for a longer period than is necessary for the purpose of marking his or her ballot-paper, or

(d)  obstruct or unnecessarily delay the proceedings at a polling place or pre-poll voting office.

Maximum penalty: 10 penalty units.

371   Improperly signing or witnessing electoral papers

A person must not do any of the following:

(a)  sign as witness a blank electoral paper,

(b)  sign as witness an electoral paper that has been wholly or partly filled up unless it has been signed by the signatory,

(c)  sign as witness an electoral paper unless the person has seen the signatory sign it,

(d)  write a name that is not his or her own name on an electoral paper as his or her own name,

(e)  sign an electoral paper with a signature that purports to be that of another person.

Maximum penalty: 10 penalty units.

372   Forging or uttering electoral papers

A person must not forge an electoral paper or utter a forged electoral paper, knowing it to be forged.

Maximum penalty: 10 penalty units.

373   Stuffing ballot-boxes

(1)  A person must not place in a ballot-box a ballot-paper that the person knows has not been lawfully issued to an elector.

(2)  An elector must not place in the ballot-box a paper other than the ballot-paper issued to him or her.

Maximum penalty: 10 penalty units.

374   Opening sealed parcels

A person must not intentionally break open a sealed parcel of ballot-papers or other electoral material unless authorised to do so by the returning officer or the election manager or required or authorised to do so by or under any legislation or direction of a court.

Maximum penalty: 10 penalty units.

375   Bribery

A person must not, in relation to an election under the Act, or an elector at such an election, do any of the things set out in section 147 of the Parliamentary Electorates and Elections Act 1912.

Maximum penalty: 100 penalty units.

376   Treating

A candidate at an election must not, in relation to an election under the Act, do any of the things set out in section 149 of the Parliamentary Electorates and Elections Act 1912.

Maximum penalty: 100 penalty units.

377   Intimidation

A person must not, in relation to an election under the Act, or an elector at such an election, do any of the things set out in section 151 of the Parliamentary Electorates and Elections Act 1912.

Maximum penalty: 100 penalty units.