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Contents (1993 - 30)
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Local Government Act 1993 No 30
Current version for 5 December 2019 to date (accessed 24 January 2020 at 18:58)
Chapter 9 Part 2
Part 2 Councils
Division 1 Constitution
219   Constitution of councils
A council is constituted by this Act for each area.
220   Legal status of a council
(1)  A council is a body politic of the State with perpetual succession and the legal capacity and powers of an individual, both in and outside the State.
(2)  A council is not a body corporate (including a corporation).
(3)  A council does not have the status, privileges and immunities of the Crown (including the State and the Government of the State).
(4)  A law of the State applies to and in respect of a council in the same way as it applies to and in respect of a body corporate (including a corporation).
221   What is a council’s name?
(1)  The name of a council of an area other than a city is the “Council of X” or the “X Council”, X being the name of the council’s area.
(2)  The name of a council of a city is the “Council of the City of X” or the “X City Council”, X being the name of the city.
222   Who comprise the governing body?
The elected representatives, called “councillors”, comprise the governing body of the council.
223   Role of governing body
(1)  The role of the governing body is as follows—
(a)  to direct and control the affairs of the council in accordance with this Act,
(b)  to provide effective civic leadership to the local community,
(c)  to ensure as far as possible the financial sustainability of the council,
(d)  to ensure as far as possible that the council acts in accordance with the principles set out in Chapter 3 and the plans, programs, strategies and polices of the council,
(e)  to develop and endorse the community strategic plan, delivery program and other strategic plans, programs, strategies and policies of the council,
(f)  to determine and adopt a rating and revenue policy and operational plans that support the optimal allocation of the council’s resources to implement the strategic plans (including the community strategic plan) of the council and for the benefit of the local area,
(g)  to keep under review the performance of the council, including service delivery,
(h)  to make decisions necessary for the proper exercise of the council’s regulatory functions,
(i)  to determine the process for appointment of the general manager by the council and to monitor the general manager’s performance,
(j)  to determine the senior staff positions within the organisation structure of the council,
(k)  to consult regularly with community organisations and other key stakeholders and keep them informed of the council’s decisions and activities,
(l)  to be responsible for ensuring that the council acts honestly, efficiently and appropriately.
(2)  The governing body is to consult with the general manager in directing and controlling the affairs of the council.
224   How many councillors does a council have?
(1)  A council must have at least 5 and not more than 15 councillors (one of whom is the mayor).
(2)  Not less than 12 months before the next ordinary election, the council must determine the number, in accordance with subsection (1), of its councillors for the following term of office.
(3)  If the council proposes to change the number of councillors, it must, before determining the number, obtain approval for the change at a constitutional referendum.
224A   Approval to reduce number of councillors
(1)  A council may resolve to make an application to the Minister to approve a decrease in the number of councillors within the limits referred to in section 224(1).
(2)  The council must give not less than 42 days’ public notice of its proposed resolution.
(3)  After passing the resolution, the council must forward to the Minister a copy of the resolution, a summary of any submissions received by it and its comments concerning those submissions.
(4)  The Minister may approve the application without amendment or may decline to approve the application.
(5)  If the Minister approves the application, the number of councillors of the council is reduced to the number specified in the application with effect on and from the day appointed for the next ordinary election of councillors after the application is approved.
(6)  Section 16 does not apply to a resolution of a council to make an application to the Minister under this section.
(7)  An application may be made under this section after the commencement of the Local Government Amendment (Elections) Act 2011 but before the expiry of 5 months after that commencement.
(8)  Nothing in this section prevents a council from making more than one application under this section or from taking action under section 224 to change the number of its councillors.
(9)  A council for an area that is divided into wards may not make an application under this section for a decrease in the number of councillors that would result in the number of councillors for each ward being fewer than 3.
Division 2 The mayor
225   The mayor
An area must have a mayor who is elected in accordance with this Division.
226   Role of mayor
The role of the mayor is as follows—
(a)  to be the leader of the council and a leader in the local community,
(b)  to advance community cohesion and promote civic awareness,
(c)  to be the principal member and spokesperson of the governing body, including representing the views of the council as to its local priorities,
(d)  to exercise, in cases of necessity, the policy-making functions of the governing body of the council between meetings of the council,
(e)  to preside at meetings of the council,
(f)  to ensure that meetings of the council are conducted efficiently, effectively and in accordance with this Act,
(g)  to ensure the timely development and adoption of the strategic plans, programs and policies of the council,
(h)  to promote the effective and consistent implementation of the strategic plans, programs and policies of the council,
(i)  to promote partnerships between the council and key stakeholders,
(j)  to advise, consult with and provide strategic direction to the general manager in relation to the implementation of the strategic plans and policies of the council,
(k)  in conjunction with the general manager, to ensure adequate opportunities and mechanisms for engagement between the council and the local community,
(l)  to carry out the civic and ceremonial functions of the mayoral office,
(m)  to represent the council on regional organisations and at inter-governmental forums at regional, State and Commonwealth level,
(n)  in consultation with the councillors, to lead performance appraisals of the general manager,
(o)  to exercise any other functions of the council that the council determines.
227   Who elects the mayor?
The mayor of an area is the person elected to the office of mayor by—
(a)  the councillors from among their number, unless there is a decision in force under this Division which provides for the election of the mayor by the electors, or
(b)  the electors, if such a decision is in force.
Note.
 As to the election of the mayor, see also section 282.
228   How is it decided that the mayor be elected by the electors?
(1)  It may be decided at a constitutional referendum that the mayor be elected by the electors.
(2)  A decision that the mayor be elected by the electors takes effect in relation to the next ordinary election after the decision is made.
229   Can the decision be changed?
(1)  A decision that the mayor be elected by the electors is rescinded only if a constitutional referendum decides in favour of discontinuing that means of election.
(2)  The rescission takes effect in relation to the next ordinary election after the rescission occurs.
230   For what period is a mayor elected?
(1)  A mayor elected by the councillors holds the office of mayor for 2 years, subject to this Act.
(2)  A mayor elected by the electors holds the office of mayor for 4 years, subject to this Act.
(3)  The office of mayor—
(a)  commences on the day the person elected to the office is declared to be so elected, and
(b)  becomes vacant when the person’s successor is declared to be elected to the office, or on the occurrence of a casual vacancy in the office.
(4)  A person elected to fill a casual vacancy in the office of mayor holds the office for the balance of the predecessor’s term.
231   Deputy mayor
(1)  The councillors may elect a person from among their number to be the deputy mayor.
(2)  The person may be elected for the mayoral term or a shorter term.
(3)  The deputy mayor may exercise any function of the mayor at the request of the mayor or if the mayor is prevented by illness, absence or otherwise from exercising the function or if there is a casual vacancy in the office of mayor.
(4)  The councillors may elect a person from among their number to act as deputy mayor if the deputy mayor is prevented by illness, absence or otherwise from exercising a function under this section, or if no deputy mayor has been elected.
Division 3 The councillors
232   The role of a councillor
(1)  The role of a councillor is as follows—
(a)  to be an active and contributing member of the governing body,
(b)  to make considered and well informed decisions as a member of the governing body,
(c)  to participate in the development of the integrated planning and reporting framework,
(d)  to represent the collective interests of residents, ratepayers and the local community,
(e)  to facilitate communication between the local community and the governing body,
(f)  to uphold and represent accurately the policies and decisions of the governing body,
(g)  to make all reasonable efforts to acquire and maintain the skills necessary to perform the role of a councillor.
(2)  A councillor is accountable to the local community for the performance of the council.
233   For what period is a councillor elected?
(1)  A councillor (other than the mayor) holds office for 4 years, subject to this Act.
(2)  The office of councillor—
(a)  commences on the day the person elected to the office is declared to be so elected, and
(b)  becomes vacant on the day appointed for the next ordinary election of councillors, or on the occurrence of a casual vacancy in the office.
(3)  A person elected to fill a casual vacancy in the office of councillor holds the office for the balance of the predecessor’s term.
233A   Oath and affirmation for councillors
(1)  A councillor must take an oath of office or make an affirmation of office at or before the first meeting of the council after the councillor is elected.
(2)  The oath or affirmation may be taken or made before the general manager of the council, an Australian legal practitioner or a justice of the peace and is to be in the following form—
Oath
I [name of councillor] swear that I will undertake the duties of the office of councillor in the best interests of the people of [name of council area] and the [name of council] and that I will faithfully and impartially carry out the functions, powers, authorities and discretions vested in me under the Local Government Act 1993 or any other Act to the best of my ability and judgment.
Affirmation
I [name of councillor] solemnly and sincerely declare and affirm that I will undertake the duties of the office of councillor in the best interests of the people of [name of council area] and the [name of council] and that I will faithfully and impartially carry out the functions, powers, authorities and discretions vested in me under the Local Government Act 1993 or any other Act to the best of my ability and judgment.
(3)  A councillor who fails, without a reasonable excuse, to take the oath of office or make an affirmation of office in accordance with this section is not entitled to attend a meeting as a councillor (other than the first meeting of the council after the councillor is elected to the office or a meeting at which the councillor takes the oath or makes the affirmation) until the councillor has taken the oath or made the affirmation.
(4)  Any absence of a councillor from an ordinary meeting of the council that the councillor is not entitled to attend because of this section is taken to be an absence without prior leave of the council.
(5)  Failure to take an oath of office or make an affirmation of office does not affect the validity of anything done by a councillor in the exercise of the councillor’s functions.
(6)  The general manager must ensure that a record is to be kept of the taking of an oath or the making of an affirmation (whether in the minutes of the council meeting or otherwise).
234   When does a vacancy occur in a civic office?
(1)  A civic office becomes vacant if the holder—
(a)  dies, or
(b)  resigns the office by writing addressed to the general manager, or
(c)  is disqualified from holding civic office, or
(d)  is absent from 3 consecutive ordinary meetings of the council (unless the holder is absent because he or she has been suspended from office under this Act or because the council has been suspended under this Act or as a consequence of a compliance order under section 438HA) without—
(i)  prior leave of the council, or
(ii)  leave granted by the council at any of the meetings concerned, or
(e)  becomes bankrupt, applies to take the benefit of any law for the relief of bankrupt or insolvent debtors, compounds with his or her creditors or makes an assignment of his or her remuneration for their benefit, or
(f)  becomes a mentally incapacitated person, or
(g)  is dismissed from civic office, or
(g1)  in the case of the office of a councillor, is elected as mayor by the electors, or
(h)  ceases to hold the office for any other reason.
Note.
 See section 275 for the circumstances in which a person is disqualified from holding civic office.
(2)  For the purposes of subsection (1)(d), a councillor applying for a leave of absence from a meeting of a council does not need to make the application in person and the council may grant such leave in the absence of that councillor.
(3)  If the holder of a civic office attends a council meeting (whether or not an ordinary meeting) despite having been granted leave of absence, the leave of absence is taken to have been rescinded as regards any future council meeting.
(4)  Subsection (3) does not prevent the council from granting further leave of absence in respect of any future council meeting.
(5)  The office of a mayor elected by councillors becomes vacant if the mayor ceases to hold office as a councillor.
Division 4 Local Government Remuneration Tribunal
235   Local Government Remuneration Tribunal
There is established by this Act a tribunal to be known as the Local Government Remuneration Tribunal.
236   Assessors
(1)  For the purposes of this Part, there are to be 2 assessors—
(a)  one of whom is to be the Departmental Chief Executive, and
(b)  the other of whom is to be a person appointed by the Governor on the nomination of the Minister, being a person who has, in the Minister’s opinion, special knowledge of the system of local government in New South Wales.
(2)  The Remuneration Tribunal, in exercising the Remuneration Tribunal’s functions is—
(a)  to be assisted by the assessors, and
(b)  to take into consideration the views and recommendations tendered by the assessors.
237   Provisions relating to the appointment, term of office and remuneration of the Remuneration Tribunal and assessors
Schedule 1 has effect with respect to the Remuneration Tribunal and the assessors.
238   Functions of the Remuneration Tribunal
(1)  The Remuneration Tribunal has the functions conferred or imposed on the Remuneration Tribunal by or under this Act.
(2)  In addition, the Remuneration Tribunal has such functions as may be conferred or imposed on the Remuneration Tribunal by the Minister.
239   Categorisation of councils and mayoral offices
(1)  The Remuneration Tribunal must, at least once every 3 years—
(a)  determine categories for councils and mayoral offices, and
(b)  place each council and mayoral office into one of the categories it has determined.
(2)  The determination of categories by the Remuneration Tribunal is for the purpose of enabling the Remuneration Tribunal to determine the maximum and minimum amounts of fees to be paid to mayors and councillors in each of the categories so determined.
240   How are the categories to be determined?
(1)  The Remuneration Tribunal is to determine categories for councils and mayoral offices according to the following matters—
  the size of areas
  the physical terrain of areas
  the population of areas and the distribution of the population
  the nature and volume of business dealt with by each council
  the nature and extent of the development of areas
  the diversity of communities served
  the regional, national and international significance of the council
  such matters as the Remuneration Tribunal considers relevant to the provision of efficient and effective local government
  such other matters as may be prescribed by the regulations.
(2)  In the application of this section to county councils, the categories of county councils are to be determined having regard also to the functions of county councils.
241   Determination of fees
The Remuneration Tribunal must, not later than 1 May in each year, determine, in each of the categories determined under section 239, the maximum and minimum amounts of fees to be paid during the following year to councillors (other than mayors) and mayors.
242   Special determinations
(1)  The Minister may direct the Remuneration Tribunal to make a determination as to whether, and (if so) how, a determination already made should be altered in relation to such councillors or mayors as are specified in the direction.
(2)  Such a determination must be made before the date specified for the purpose in the Minister’s direction.
(3)  In making the determination, the Remuneration Tribunal is to take into consideration such matters as are specified in the Minister’s direction and such other matters as the Remuneration Tribunal thinks fit.
242A   Tribunal to give effect to declared government policy on remuneration for public sector staff
(1)  In making a determination, the Remuneration Tribunal is to give effect to the same policies on increases in remuneration as those that the Industrial Relations Commission is required to give effect to under section 146C of the Industrial Relations Act 1996 when making or varying awards or orders relating to the conditions of employment of public sector employees.
(2)  The policies referred to in subsection (1) do not include any policy that provides for increases in remuneration based on employee-related savings.
(3)  This section does not apply to a determination by the Remuneration Tribunal that changes the category of a council or mayoral office (whether or not the effect of the change is to increase the range of amounts payable to the councillors and mayor of a council).
(4)  To avoid doubt, this section extends to a determination of the minimum and maximum amounts payable for a category in existence when the determination is made.
243   Inquiries
(1)  Before making a determination, the Remuneration Tribunal may make such inquiry as the Remuneration Tribunal thinks necessary.
(2)  In exercising a function, the Remuneration Tribunal—
(a)  may obtain and assess information in such manner as the Remuneration Tribunal thinks fit, and
(b)  may receive written or oral submissions, and
(c)  is not required to conduct any proceedings in a formal manner, and
(d)  is not bound by the rules of evidence.
244   Reports of the Remuneration Tribunal
(1)  The Remuneration Tribunal must, within 7 days after making a determination under section 239, make a report to the Minister of the determination.
(2)  The Remuneration Tribunal must, not later than 1 May in each year, make a report to the Minister of the determination made under section 241.
(3)  The Remuneration Tribunal must, within 7 days after making a determination under section 242, make a report to the Minister of the determination.
245   Publication and tabling of reports
(1)  The report of a determination of the Remuneration Tribunal must—
(a)  be published in the Gazette as soon as practicable after the report is received by the Minister, and
(b)  be laid before each House of Parliament within 14 sitting days of that House after the day on which it is so published.
(2)  Failure to lay a report before each House of Parliament in accordance with this section does not affect the validity of a determination, but the report must nevertheless be laid before each House.
246   Effect of determination
A determination of the Remuneration Tribunal may not be challenged, reviewed, quashed or called into question before any court in any legal proceedings, or restrained, removed or otherwise affected by proceedings in the nature of prohibition, mandamus, certiorari or otherwise.
247   Assistance for the Remuneration Tribunal
The Minister is to make available to the Remuneration Tribunal such Public Service employees as may be necessary to assist the Remuneration Tribunal in the exercise of the Remuneration Tribunal’s functions.
Division 5 What fees, expenses and facilities may be paid or provided to councillors?
248   Fixing and payment of annual fees for councillors
(1)  A council must pay each councillor an annual fee.
(2)  A council may fix the annual fee and, if it does so, it must fix the annual fee in accordance with the appropriate determination of the Remuneration Tribunal.
(3)  The annual fee so fixed must be the same for each councillor.
(4)  A council that does not fix the annual fee must pay the appropriate minimum fee determined by the Remuneration Tribunal.
248A   Annual fees or other remuneration not to be paid during period of suspension
A council must not at any time pay any fee or other remuneration, or any expenses, to which a councillor would otherwise be entitled as the holder of a civic office, in respect of any period during which—
(a)  the councillor is suspended from civic office under this Act, or
(b)  the councillor’s right to be paid any such fee or other remuneration, or expense, is suspended under this Act,
unless another provision of this Act specifically authorises payment to be made, or specifically permits a person to authorise payment to be made, when the suspension is terminated.
249   Fixing and payment of annual fees for the mayor
(1)  A council must pay the mayor an annual fee.
(2)  The annual fee must be paid in addition to the fee paid to the mayor as a councillor.
(3)  A council may fix the annual fee and, if it does so, it must fix the annual fee in accordance with the appropriate determination of the Remuneration Tribunal.
(4)  A council that does not fix the annual fee must pay the appropriate minimum fee determined by the Remuneration Tribunal.
(5)  A council may pay the deputy mayor (if there is one) a fee determined by the council for such time as the deputy mayor acts in the office of the mayor. The amount of the fee so paid must be deducted from the mayor’s annual fee.
250   At what intervals are fees to be paid?
Fees payable under this Division by a council are payable monthly in arrears for each month (or part of a month) for which the councillor holds office.
251   What is the consequence of paying fees?
(1)  A person is not, for the purposes of any Act, taken to be an employee of a council and is not disqualified from holding civic office merely because the person is paid a fee under this Division.
(2)  A fee paid under this Division does not constitute salary for the purposes of any Act.
252   Payment of expenses and provision of facilities
(1)  Within the first 12 months of each term of a council, the council must adopt a policy concerning the payment of expenses incurred or to be incurred by, and the provision of facilities to, the mayor, the deputy mayor (if there is one) and the other councillors in relation to discharging the functions of civic office.
(2)  The policy may provide for fees payable under this Division to be reduced by an amount representing the private benefit to the mayor or a councillor of a facility provided by the council to the mayor or councillor.
(3)  A council must not pay any expenses incurred or to be incurred by, or provide any facilities to, the mayor, the deputy mayor (if there is one) or a councillor otherwise than in accordance with a policy under this section.
(4)  A council may from time to time amend a policy under this section.
(5)  A policy under this section must comply with the provisions of this Act, the regulations and any relevant guidelines issued under section 23A.
253   Requirements before policy concerning expenses and facilities can be adopted or amended
(1)  A council must give public notice of its intention to adopt or amend a policy for the payment of expenses or provision of facilities allowing at least 28 days for the making of public submissions.
(2)  Before adopting or amending the policy, the council must consider any submissions made within the time allowed for submissions and make any appropriate changes to the draft policy or amendment.
(3)  Despite subsections (1) and (2), a council need not give public notice of a proposed amendment to its policy for the payment of expenses or provision of facilities if the council is of the opinion that the proposed amendment is not substantial.
(4)    (Repealed)
(5)  A council must comply with this section when proposing to adopt a policy in accordance with section 252(1) even if the council proposes to adopt a policy that is the same as its existing policy.
254   Decision to be made in open meeting
The council or a council committee all the members of which are councillors must not close to the public that part of its meeting at which a policy for the payment of expenses or provision of facilities is adopted or amended, or at which any proposal concerning those matters is discussed or considered.
254A   Circumstances in which annual fees may be withheld
(1)  Despite this Division, a council may resolve that an annual fee will not be paid to a councillor or that a councillor will be paid a reduced annual fee determined by the council—
(a)  for any period of not more than 3 months for which the councillor is absent, with or without leave, from an ordinary meeting or ordinary meetings of the council, or
(b)  in any other circumstances prescribed by the regulations.
(2)  Despite this Division, if a councillor is absent, with or without leave of the council, from ordinary meetings of the council for any period of more than 3 months, the council must not pay any annual fee, or part of an annual fee, to that councillor that relates to the period of absence that is in excess of 3 months.
Division 6 Appointment of administrator
255   Governor may dismiss mayor and councillors
(1)  The Governor may, by proclamation, declare all civic offices in relation to a council to be vacant if—
(a)  a public inquiry concerning the council has been held, and
(b)  the Minister has recommended that the Governor make such a declaration.
(1A)  The Minister may recommend that the Governor make such a declaration only—
(a)  after considering the results of the public inquiry, or
(b)  if the Minister decides to issue a performance improvement order to the council in response to the results of the public inquiry—after issuing the order and considering whether the council has complied with the order.
(2)  The Governor may, by proclamation, declare all civic offices in relation to a council to be vacant if the Independent Commission Against Corruption, in a report referred to in section 74C of the Independent Commission Against Corruption Act 1988, recommends that consideration be given to the making of such a declaration because of systemic corruption within the council.
(3)  If the Independent Commission Against Corruption makes such a recommendation, all civic offices in relation to the council may be declared vacant under subsection (2) without the holding of a public or other inquiry concerning the council. However, the making of such a recommendation does not preclude the holding of a public or other inquiry.
(4)  For the purposes of this Act, a council is dismissed if the Governor declares all civic offices in relation to the council to be vacant.
256   Governor may appoint administrator or order fresh election
(1)  By the same proclamation under section 255 or by one or more subsequent proclamations, the Governor is—
(a)  to appoint an administrator of the council for a specified term, or
(b)  to order the holding of a fresh council election,
or both.
(1A)  More than one administrator may be appointed (with the same or different functions).
(2)  The Governor may, by those or other proclamations, make such further orders as the Minister recommends are necessary in the circumstances.
257   Declaration of council as non-functioning
(1)  An administrator may be appointed for an area by the Governor without the necessity for a public inquiry if the Governor declares the council to be non-functioning because—
(a)  the requirements of this Act as to the making and levying of an ordinary rate have not been followed, or
(b)  the council has not exercised its functions for 6 months or more, or
(c)  there are not enough councillors for there to be a quorum at council meetings.
(2)  The Governor may, as an alternative to the appointment of an administrator on the ground referred to in subsection (1)(c), appoint (or authorise a special election to elect) councillors to fill all the vacancies on the council or such number of those vacancies as will provide a quorum at meetings.
258   Administrator
(1)  When an administrator of a council appointed under this Division takes office—
(a)  any persons holding civic office in relation to the council cease to hold office, and
(b)  the administrator has all the functions of the council (including all the functions of a councillor and the mayor) until immediately before the first meeting of the council held after the fresh election.
(1A)  If more than one administrator is appointed, each administrator has the functions of the council specified in the instrument of appointment.
(1B)  If more than one administrator is appointed, one of the administrators is to be specified in the instrument of appointment as the person who is to exercise the functions of the mayor of the council.
(2)  An administrator must be paid a salary from the council’s funds determined by the Governor.
(2A)  If more than one administrator is appointed for a council, the Minister may give directions for the purpose of resolving any issues that arise as a result of there being more than one administrator.
(3)  The Governor may terminate an administrator’s appointment at any time.
(4)  An administrator ceases to hold office—
(a)  immediately before the first meeting of the council held after the fresh election, or
(b)  if the administrator’s appointment is earlier terminated by the Governor.
259   Temporary exercise of the council’s functions
(1)  In this section, the transitional period means the period between—
(a)  the appointment of an administrator of a council and the time at which the administrator takes office, or
(b)  the declaration of a council to be non-functioning and the time at which the appointed or elected councillors for the area take office, if the declaration provides for their appointment or election instead of the appointment of an administrator.
(2)  During the transitional period, the mayor, or the general manager if there is no mayor, may temporarily exercise the following functions of the council—
(a)  the continuation of works and services already commenced,
(b)  the payment of council employees,
(c)  the payment of accounts due,
(d)  the administration of the area without expenditure other than those payments and payments approved by the Minister.