Local Government Amendment Act 1998 (TAS)

Local Government Amendment Act 1998

An Act to amend the Local Government Act 1993

[Royal Assent 18 December 1998]

Be it enacted by His Excellency the Governor of Tasmania, by and with the advice and consent of the Legislative Council and House of Assembly, in Parliament assembled, as follows:

1Short titleThis Act may be cited as the Local Government Amendment Act 1998 . 2CommencementThis Act commences on the day on which this Act receives the Royal Assent. 3Principal ActIn this Act, the Local Government Act 1993 is referred to as the Principal Act. 4Section 3 amended (Interpretation) Section 3 of the Principal Act is amended as follows: (a) by inserting the following definition after the definition of absolute majority : assets, for the purpose of Part 2 , includes – (a) any real or personal property; and (b) any estates or interests in any real or personal property; and (c) any rights, obligations or liabilities; (b) by inserting the following definition after the definition of participating council : proposed municipal area means a municipal area that is to come into existence as a result of an order under section 12 ; 5Section 9 amended (Scope of review) Section 9(1) of the Principal Act is amended as follows: (a) by inserting in paragraph (c) "or part of a municipal area" after "area"; (b) by inserting the following paragraph after paragraph (c) : (ca) the naming or changing the name of a city; 6Section 12 amended (Result of review) Section 12 of the Principal Act is amended as follows: (a) by inserting in subsection (1)(g) "or part of a municipal area" after "area"; (b) by inserting the following paragraph after paragraph (g) in subsection (1) : (ga) name or change the name of a city; or (c) by omitting paragraph (s) from subsection (1) and substituting the following paragraph: (s) amend or substitute Schedule 3A . (d) by omitting subsection (2) and substituting the following subsection: (2)  In an order under subsection (1) , the Governor may fix a closing day within the meaning of Part 15 for an election to be held. (e) by inserting the following subsections after subsection (4) : (5)  The Governor, on the recommendation of the Minister and in relation to an order under subsection (1) , may make – (a) an order in respect of any appropriate savings and transitional matters; and (b) an order in respect of employees of a council that is affected by an order under subsection (1) ; and (c) an order relating to the requirements of the first meeting of a council of a proposed municipal area; and (d) any other order necessary or expedient. (6)  An order made under subsection (5) that is inconsistent with any provision of this Act or any other Act, other than section 45C of the Constitution Act 1934 , prevails over that provision to the extent of that inconsistency. (7)  An election for an existing or a proposed municipal area to be held as a result of an order made under this section is to be held in accordance with Part 15 and any regulations made for the purpose of that Part. 7Section 13 substituted Section 13 of the Principal Act is repealed and the following section is substituted: 13Transfer and vesting of assets If, as a result of an order under section 12 , a municipal area is abolished and combined with an existing or newly created municipal area – (a) any assets of the council of the abolished municipal area are transferred to, and vest in, the council of the existing or newly created municipal area with effect from the day specified in that order; and (b) any legal proceedings by or against the council of the abolished municipal area in respect of those assets not determined before that day may be continued, on or after that day, by or against the council of the existing or newly created municipal area; and (c) a judgment or order of a court obtained before that day by or against the council of the abolished municipal area in respect of those assets may be enforced by or against the council of the existing or newly created municipal area; and (d) a document addressed to the council of the abolished municipal area in respect of those assets may be served on the council of the existing or newly created municipal area; and (e) a contract made or entered into by the council of an abolished municipal area in respect of those assets before that day but not performed or discharged before that day is taken to have been made or entered into by the council of the existing or newly created municipal area. 8Section 14 amended (Apportionment of assets, &c., between councils) Section 14 of the Principal Act is amended as follows: (a) by inserting in subsection (1) "or is to be" after "is"; (b) by omitting from subsection (1) ", liabilities, rights, powers and functions"; (c) by inserting the following subsections after subsection (2) : (3)  The Minister may require an agreement to be made on or before a specified day. (4)  The Minister may refer any matter that is in dispute between councils to an arbitrator appointed by the Minister for that purpose. (5)  A decision of the Minister is final. (6)  Any apportionment takes effect – (a) on the day on which the order under section 12 takes effect; or (b) a later day if the Minister so determines. (7)  Any assets apportioned under this section are vested in the relevant council on the day – (a) specified in the agreement; or (b) if there is no agreement, specified in the determination under subsection (2) . 9Section 15 amended (Costs) Section 15(1) of the Principal Act is amended by inserting "or any transfer or vesting under sections 13 and 14 " after "that order". 10Section 16 amended (Municipal areas) Section 16 of the Principal Act is amended as follows: (a) by omitting subsection (2) and substituting the following subsection: (2)  A municipal area is an area specified in Column 1 of Schedule 3 . (b) by omitting subsections (4) and (5) and substituting the following subsections: (4)  The Local Government Board, whether or not as a result of a review under Part 2 , may recommend to the Minister that a boundary of a municipal area be adjusted if – (a) the adjustment is of a minor nature; and (b) any council affected by it consents; and (c) the Board has considered any objections received in relation to the matter. (5)  The Governor, by order and on the recommendation of the Minister, may – (a) adjust a boundary of a municipal area on the recommendation of the Local Government Board; and (b) if the municipal area is divided into electoral districts, adjust any boundary of any electoral district as may be necessary. (5A)  A council affected by an adjustment under subsection (5) is to pay the costs associated with that adjustment. (5B)  Each municipal area is defined by reference to the relevant plan or plans specified in Column 1 of Schedule 3. (c) by inserting in subsection (6) "or substitute that Schedule" after " Schedule 3 ". 11Section 40 substituted Section 40 of the Principal Act is repealed and the following section is substituted: 40Election by councillors or electors The mayor and deputy mayor of a council are to be elected by the councillors or the electors of the municipal areas as specified in Schedule 3A . 12Section 253 amended (Interpretation of Part 15) Section 253 of the Principal Act is amended as follows: (a) by inserting the following definition after the definition of approved : ballot material means – (a) the ballot paper; and (b) instructions for the completion of the ballot paper and the manner in which the ballot paper is to be returned; and (c) the envelope or envelopes to be used for the return of the ballot paper; and (d) statements of candidates; (b) by omitting the definitions of close of poll and closing day and substituting the following definition: closing day means the day referred to in section 268A ; (c) by omitting the definition of electoral material and substituting the following definition: electoral material means – (a) ballot papers; and (b) declarations under section 284 ; (d) by inserting the following definition after the definition of electoral officer : electoral officer in charge means an electoral officer appointed under section 265(2) to be in charge of an issuing place; (e) by inserting the following definitions after the definition of electoral roll : general manager includes a person nominated under section 253A ; issuing place means a place appointed under section 263 ; (f) by omitting the definition of nomination period and substituting the following definitions: municipal area includes a proposed municipal area; nomination period means the period beginning at 9 a.m. on the 6th Monday immediately before the closing day and ending at noon on the 4th Wednesday immediately before the closing day; (g) by omitting the definitions of polling-day , polling period , polling place , postal vote certificate and postal vote envelope and substituting the following definition: polling period means a period of at least 10 days, excluding any Saturday, Sunday or bank holiday, ending on closing day; (h) by inserting the following definition after the definition of returning officer : roll closure day means the day on which the electoral roll for an electoral area is closed under section 260 ; 13Section 253A insertedAfter section 253 of the Principal Act , the following section is inserted in Division 1: 253AActing general manager The Chief Electoral Officer may nominate a person to exercise the powers and perform the functions of a general manager under this Part in relation to an election for a proposed municipal area. 14Section 258 amended (Electoral roll) Section 258(3) of the Principal Act is amended by omitting "may" and substituting "is to". 15Section 260 amended (Closure of electoral roll) Section 260 of the Principal Act is amended by omitting "Friday before the polling-day" and substituting "Thursday before the closing day". 16Section 261 amended (List of electors) Section 261 of the Principal Act is amended as follows: (a) by omitting from subsection (5) "polling-day" and substituting "closing day"; (b) by omitting from subsection (6) "closing" and substituting "roll closure". 17Section 262 amended (Appeals) Section 262 of the Principal Act is amended as follows: (a) by omitting from subsection (2) "closing" and substituting "roll closure"; (b) by omitting from subsection (3) "closing" and substituting "roll closure". 18Part 15, Division 3: Heading amended Division 3 of Part 15 of the Principal Act is amended by omitting "Polling" from the heading to that Division and substituting "Issuing". 19Section 263 amended (Issuing places) Section 263 of the Principal Act is amended as follows: (a) by omitting subsection (1) and substituting the following subsection: (1)  The Chief Electoral Officer may appoint any place to be an issuing place for an election in respect of a council for a municipal area where supplementary ballot material may be issued and ballot material received. (b) by omitting from subsection (2) "a polling" and substituting "an issuing"; (c) by omitting subsections (3) and (4) and substituting the following subsections: (3)  The Chief Electoral Officer is to determine the hours of operation of an issuing place. (4)  An election is not void if an issuing place is not open during its hours of operation. (d) by omitting from subsection (5) "a polling" twice occurring and substituting "an issuing". 20Section 265 amended (Electoral officers) Section 265(2) of the Principal Act is amended by omitting "a polling" and substituting "an issuing". 21Section 266 amended (Powers of electoral officers in charge) Section 266 of the Principal Act is amended as follows: (a) by omitting from subsection (1) "a polling" and substituting "an issuing"; (b) by omitting from subsection (1) "polling" second occurring and substituting "issuing"; (c) by omitting from subsection (2) "a polling" and substituting "an issuing"; (d) by omitting from subsection (3) "a polling" and substituting "an issuing". 22Section 268A amended (Closing day and polling period) Section 268A of the Principal Act is amended by omitting subsection (1) and substituting the following subsections: (1)  The day on which the poll closes for an election in respect of all councils is the last Tuesday in October in any even year unless the Governor, by order under this section or section 12(2)  – (a) fixes another day in another month or year; or (b) determines that an election in respect of all or specified councils is to be postponed. (1A)  The Governor, by order, may – (a) fix any day in any month in any year as a closing day for an election in respect of one or more specified councils; or (b) determine that an election in respect of all or specified councils is to be postponed. (1B)  The Governor, if a notice of election has been issued and an election is being conducted, by order, may – (a) fix another closing day for that election; or (b) declare the election to be abandoned. 23Section 269 amended (Notice of election) Section 269(1) of the Principal Act is amended by omitting "At least 40 days before polling-day" and substituting "On the 7th Saturday before closing day". 24Section 273 amended (Withdrawal of nomination or death of candidate) Section 273 of the Principal Act is amended as follows: (a) by omitting from subsection (2) "polling" and substituting "end of the nomination"; (b) by omitting from subsection (3) "during" and substituting "between the end of the nomination period and the end of"; (c) by omitting subsection (4) and substituting the following subsections: (4)  If, on the death of a candidate between the end of the nomination period and the end of the polling period, the number of candidates remaining does not exceed the number required to be elected – (a) those candidates are to be declared to be elected; and (b) the returning officer is to proceed in the manner specified in section 274(2) . (5)  If a candidate dies after the end of the polling period and before the declaration of the poll the returning officer is to conduct or continue to conduct a count of the votes as if the candidate had not died. (6)  If a candidate referred to in subsection (5) received sufficient votes to be elected, the position the candidate would have been elected to is to be treated as if it were a casual vacancy. (7)  If a candidate referred to in subsection (5) did not receive sufficient votes to be elected, the successful candidates are to be declared elected. 25Section 274 amended (Election without poll) Section 274(2)(b) of the Principal Act is amended by omitting "polling-day" and substituting "or after closing day". 26Section 275 amended (Election with poll) Section 275(3) of the Principal Act is amended as follows: (a) by omitting paragraph (a) and substituting the following paragraph: (a) the names, and localities of the residences, of the candidates; and (b) by omitting paragraph (c) and substituting the following paragraph: (c) the polling period; and (c) by omitting from paragraph (d) "polling" and substituting "issuing". 27Section 276 amended (Display of notice of nominations) Section 276(1) of the Principal Act is amended by omitting "After" and substituting "As soon as possible after 12 noon on the day after". 28Part 15, Divisions 6 and 7 substituted Divisions 6 and 7 of Part 15 of the Principal Act are repealed and the following Division is substituted: Division 6Postal voting 283Voting Voting is to be carried out during the polling period in accordance with this Division. 284Ballot material (1)  The Chief Electoral Officer is to send or deliver during the polling period to each elector, to the address shown on the list of electors, the following: (a) ballot material; (b) any other document the Chief Electoral Officer considers appropriate. (2)  Any envelopes used for the issue or return of ballot papers are to – (a) be approved; and (b) make provision on one of those envelopes for the voter to sign a declaration; and (c) be designed to protect the secrecy of the vote. (3)  A declaration under subsection (2) is to state that the voter – (a) is the person named on the envelope; and (b) voted on the ballot paper in the envelope. 285Voting procedure The elector, in accordance with the instructions, is to – (a) mark the ballot paper; and (b) place it in the envelope or envelopes provided; and (c) sign the declaration; and (d) send it by post or deliver it so that it is received before the end of the polling period by – (i) the returning officer; or (ii) the electoral officer in charge of an issuing place. 286Supplementary issue of ballot material (1)  The Chief Electoral Officer, the returning officer or an electoral officer in charge of an issuing place, if there is reasonable time to do so, is to send or deliver, or provide in person, supplementary ballot material to an elector if satisfied that the elector – (a) has not received the original documents; or (b) has spoiled any of the original ballot material sent to him or her; or (c) is entitled to vote but is not on the list of electors; or (d) is to be absent from the address shown on the list of electors for part or all of the polling period. (2)  Supplementary ballot material is to be sent or delivered to the address shown on the list of electors unless a person referred to in subsection (1)(d) nominates another address. (3)  A record is to be kept in an approved form of – (a) the name and address of a person issued with supplementary ballot material; and (b) the reason for that issue. 287Ballot papers not to be accepted A ballot paper is not to be accepted if it is – (a) received by the returning officer or the electoral officer in charge of an issuing place after the end of the polling period; or (b) contained in an envelope on which the declaration has not been signed as required under section 285 ; or (c) not contained in an envelope; or (d) received from a person who is not entitled to vote. 288Ballot papers (1)  Ballot papers are to be prepared and printed by the Chief Electoral Officer in the format specified in Schedule 6 . (2)  The names of the candidates are to be printed on each batch of ballot papers in the prescribed order. 289Instructions on ballot papers Instructions on the ballot paper are to state that – (a) the elector is to mark the ballot paper by numbering the boxes from 1 to the number of candidates in order of choice; and (b) the elector’s vote will not count unless the elector numbers at least the same number of boxes as there are candidates to be elected. 290Marking of ballot papers (1)  In respect of an election for mayor, deputy mayor or a single councillor, an elector – (a) must mark the ballot paper by placing the number 1 in the box next to the name of the candidate of the elector’s first preference; and (b) may mark the ballot paper further by placing further consecutive numbers in any or all of the remaining boxes next to the names of the remaining candidates. (2)  In respect of an election for more than one councillor, an elector – (a) must mark the ballot paper by placing consecutive numbers in the boxes next to the names of the candidates in order of preference from number 1 to the number of candidates that are to be elected; and (b) may place further consecutive numbers in any or all of the remaining boxes next to the names of the remaining candidates. 291Assistance to electors The Chief Electoral Officer may approve any procedures that are reasonable and appropriate to assist an elector whose sight is so impaired or who is so physically incapacitated or illiterate that the elector is unable to vote without assistance. 292Appointment of scrutineers (1)  A candidate at an election may appoint one or more persons who are not candidates at that election to be scrutineers on his or her behalf. (2)  The appointment of a scrutineer is to be – (a) in an approved form; and (b) signed by the candidate and the scrutineer. 293Presence of scrutineers (1)  A scrutineer is entitled to be present at any place where ballot material is sorted, checked or counted. (2)  The returning officer is to determine the number of scrutineers that may be present on behalf of a candidate at a place referred to in subsection (1) . (3)  A scrutineer, before acting as such, is to produce to an electoral officer his or her appointment as a scrutineer. (4)  An electoral officer is to supply a scrutineer with an identity badge to be worn or displayed by the scrutineer while scrutineering. 294Scrutineering (1)  A scrutineer may bring to the attention of an electoral officer any matter the scrutineer believes may be out of order. (2)  A scrutineer must not – (a) fail to comply with a reasonable direction given to the scrutineer by an electoral officer; or (b) interfere with, or attempt to influence, an elector or other person; or (c) communicate with a person except if necessary to do so while scrutineering; or (d) without the authority of the electoral officer, touch or interfere with any ballot material; or (e) otherwise misconduct himself or herself.

Penalty:  Fine not exceeding 5 penalty units.

295Persons entitled to be present at place The only persons who are entitled to be present at any place where ballot material is sorted, checked or counted are – (a) the electoral officers appointed for that place; and (b) scrutineers; and (c) any other person authorised by the Chief Electoral Officer, the returning officer or an electoral officer. 29Section 299 substituted Section 299 of the Principal Act is repealed and the following section is substituted: 299Counting votes (1)  At the end of the polling period, the electoral officer in charge of an issuing place is to – (a) seal any ballot box at the issuing place; and (b) deliver any ballot box as directed by the returning officer. (2)  The counting of votes is to be carried out by the returning officer in accordance with – (a) Part 2 of Schedule 7 , if the ballot paper set out in Part 1 of Schedule 6 is used; or (b) Part 3 of Schedule 7 , if the ballot paper set out in Part 2 of Schedule 6 is used. 30Section 300 amended (Informal ballot papers) Section 300(1)(c) of the Principal Act is amended by omitting "the instructions on the ballot paper" and substituting " section 290 ". 31Sections 301 and 302 repealed Sections 301 and 302 of the Principal Act are repealed. 32Section 304 amended (Certificate of election) Section 304(2) of the Principal Act is amended by omitting "in the Gazette and". 33Section 306 amended (Keeping of electoral material) Section 306 of the Principal Act is amended as follows: (a) by inserting in subsection (2)(b) "or other material" after "material"; (b) by omitting subsections (3) and (4) ; (c) by omitting subsection (7) . 34Part 15, Division 9: Heading amended Division 9 of Part 15 of the Principal Act is amended by omitting "Vacancies and by-elections" from the heading to that Division and substituting "Casual vacancies". 35Section 307 amended (Casual vacancies) Section 307(3) of the Principal Act is amended by omitting "3 months of" and substituting "6 months before the closing day for". 36Section 308 amended (By-elections) Section 308 of the Principal Act is amended as follows: (a) by omitting from subsection (1A) "polling-day" and substituting "closing day"; (b) by omitting paragraph (b) from subsection (2) and substituting the following paragraph: (b) in conjunction with the next election if the closing day for that election is to occur within the next 6 months. 37Section 309 repealed Section 309 of the Principal Act is repealed. 38Section 310 amended (Adjournment of poll) Section 310 of the Principal Act is amended as follows: (a) by omitting subsection (1) and substituting the following subsections: (1)  The Chief Electoral Officer may adjourn a poll for a period not exceeding 30 days if satisfied that it is necessary to ensure the proper conduct of the poll. (2)  The Chief Electoral Officer, by public notice, is to specify – (a) the period of the adjournment; and (b) the reasons for the adjournment. (b) by omitting subsection (3) . 39Section 311 amended (Electoral articles to be signed) Section 311 of the Principal Act is amended as follows: (a) by omitting from subsection (1) "address of the responsible person, printer and publisher" and substituting "residential address of the responsible person"; (b) by inserting in subsection (3) "residential" after "and"; (c) by omitting "last polling-day" from the definition of prescribed period in subsection (4) and substituting "closing day". 40Section 312 amended (Offences related to polling) Section 312 of the Principal Act is amended as follows: (a) by omitting from subsection (1)(b) "entitled; or" and substituting "entitled."; (b) by omitting paragraphs (c) and (d) from subsection (1) ; (c) by omitting from subsection (3)(d) "to vote by a postal vote" and substituting "during the polling period to vote or not to vote"; (d) by omitting from subsection (3)(f) " section 298 ; or" and substituting " section 284 or 286 ."; (e) by omitting paragraphs (g) , (h) , (i) , (j) and (k) from subsection (3) . 41Section 314 amended (Bribery and undue influence) Section 314 of the Principal Act is amended as follows: (a) by omitting from subsection (3)(b) "polling-day" and substituting "closing day"; (b) by omitting from subsection (4)(b)(ii) "polling-day" and substituting "closing day". 42Section 320 amended (Inquiries and investigations) Section 320(2)(a) of the Principal Act is amended by omitting "polling" and substituting "issuing". 43Section 324 repealed Section 324 of the Principal Act is repealed. 44Section 349 amended (Regulations) Section 349 of the Principal Act is amended by omitting subsection (2) . 45Schedule 3A insertedAfter Schedule 3 to the Principal Act , the following Schedule is inserted: Schedule 3AElection of Mayors and Deputy Mayors

Section 40

Election by electors municipal area	Election by councillors municipal area
Burnie	Break O’Day
Clarence	Brighton
Devonport	Central Coast
Glenorchy	Central Highlands
Hobart	Circular Head
Southern Midlands	Derwent Valley
Dorset
Flinders
George Town
Glamorgan-Spring Bay
Huon Valley
Kentish
King Island
Kingborough
Latrobe
Launceston
Meander Valley
Northern Midlands
Sorell
Tasman
Waratah-Wynyard
West Coast
West Tamar

46Schedule 7 amended (Counting of Votes) Schedule 7 to the Principal Act is amended by omitting subclauses (2) , (3) and (4) from clause 12 of Part 3 and substituting: (2)The votes received by the excluded candidate are to be sorted into groups according to their transfer values when received by that candidate. (3)The groups are to be transferred at the transfer value at which they were received in the following order: (a) firstly, the group with the highest transfer value; (b) secondly, the remaining groups in descending order of transfer value. (4)Each transfer under subclause (3) is a separate transfer. 47Schedule 8 amended (Recount to Fill a Casual Vacancy) Clause 4 of Part 2 of Schedule 8 to the Principal Act is amended as follows: (a) by omitting subclauses (3) and (4) and substituting the following subclauses: (3)The votes received by the vacating councillor as first preferences are to be transferred at the transfer value as determined under subclause (5) . (4)The other votes received by the vacating councillor that are not first preferences are to be transferred at the transfer value as determined under subclause (6) . (4A)All the votes received by the vacating councillor are to be – (a) sorted into groups according to their transfer values; and (b) transferred in the following order: (i) firstly, the group with the highest transfer value; (ii) secondly, the remaining groups in descending order of transfer value. (b) by omitting from subclause (7) " subclause (4) " and substituting " subclause (4A) ".

[Second reading presentation speech made in:

House of Assembly on 3 DECEMBER 1998

Legislative Council on 8 DECEMBER 1998]