Local Government (Amendment) Act 1998 (Vic)

Local Government (Amendment) Act 1998

Act No. 54/1998

TABLE OF PROVISIONS

Section Page

1.	Purpose	1
2.	Commencement	2
3.	Forms need only contain the details required by the regulations	2
4.	Electoral rolls must be updated for by-elections	4
5.	Elections not to be held on Easter Saturday	5
6.	Clarification of election dates	5
7.	Insertion of section 37A	5

37A.	Extraordinary vacancies—Councillors elected under
Schedule 3 (Part 4A) or 3A 5

8.	Extension of time for the holding of by-elections	6
9.	Consequential amendment concerning the filling of vacancies	7
10.	Regulations specifying performance measures may be made	7
11.	Change to place where notices of candidature to be received	7
12.	Minor amendment previously overlooked	7
13.	Extension of election period	7
14.	Ballot-papers not to show political allegiance etc. of candidates	8
15.	Further restriction on who can be a scrutineer	8
16.	Disadvantaged voters may ask for assistance with postal voting	8
17.	Restriction on number of recounts of votes	9
18.	Clarification concerning election methods for certain Councils	9
19.	Insertion of Schedule 3A	9
20.	National Competition Policy principles to apply to local laws	17
21.	Change to regulation-making power	18
22.	Statute law revision	18

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NOTES 19

i

Victoria

No. 54 of 1998

Local Government (Amendment) Act

1998†

[Assented to 13 October 1998]

The Parliament of Victoria enacts as follows:

1. Purpose

The main purposes of this Act are to amend the

Local Government Act 1989—

(a)	to enable certain extraordinary vacancies on particular Councils to be filled by a countback of votes; and
(b)	to make various other minor changes to the electoral provisions of that Act; and

Local Government (Amendment) Act 1998

Act No. 54/1998 s. 2

(c)	to ensure that local laws comply with National Competition Policy principles; and
(d)	to generally improve the operation of that Act.

2. Commencement

This Act comes into operation on the day on which it receives the Royal Assent.

3.  Forms need only contain the details required by the regulations

(1) In the Local Government Act 1989—

(a) for sections 13(1A)(a) and (b) substitute— "(a) contain the details required by the

regulations; and";

(b) for sections 16(b) and (c) substitute— "(b) contain the details required by the

regulations; and";

(c)	in sections 17(2)(a)(ii) and (b), for "in the prescribed form" substitute "containing the details required by the regulations";
(d)	in section 45(1), omit "in the prescribed form";
(e)	in Schedule 2, in clauses 2 and 5(1)(c), for "the prescribed form" (wherever occurring) substitute "writing containing the details

required by the regulations";

(f)

in Schedule 2, for clause 5(1)(a) "(a) complete a notice of candidature

containing the details required by the

regulations; and";

(g) in Schedule 2, for clause 7(2) substitute—

Local Government (Amendment) Act 1998

s. 3 Act No. 54/1998

"(2) A notice of withdrawal must contain

the details required by the regulations and must be signed by the candidate.";

(h) in Schedule 2, for clause 14(1) substitute— "(1) Ballot-papers for an election must

contain the details required by the
regulations.";

(i)  in Schedule 2, for clause 15(2A) substitute—

"(2A) The appointment of a scrutineer must

be made in writing containing the
details required by the regulations and
must be delivered to the returning

officer.";

(j) in Schedule 2, for clause 15(4) substitute— "(4) Before a scrutineer can act as a

scrutineer she or he must make a written declaration containing the details required by the regulations.";

(k)

in Schedule 3, for clause 17(1)(a) "(a) ballot-papers to be used in the poll must

contain the details required by the

regulations;";

(l) in Schedule 5, in clause 1(1) omit "in the prescribed form";

(m) in Schedule 5, after clause 1(1) insert—

"(1A) The application must be made in

writing and must contain the details
required by the regulations.".

(2) After section 45(1) of the Local Government Act 1989 insert—

Local Government (Amendment) Act 1998

Act No. 54/1998 s. 4

"(1A) The application must be made in writing and

must contain the details required by the
regulations.".

4. Electoral rolls must be updated for by-elections

(1) After section 21(4) of the Local Government Act

1989 insert—
"(5) If an Order in Council is made under section

21A(e) and a by-election is to be held for lists and information for those wards.".

one or more wards only, the Electoral

(2) In section 21A of the Local Government Act

1989—

(a)	in paragraph (c), after "of that Council" insert "(unless paragraph (e) applies)";
(b)	after paragraph (d) insert— "(e) must be specified in respect of any

Council that is to hold a by-election
(unless the by-election is to be held at
the same time as a general election).".

(3) After section 22(2) of the Local Government Act 1989 insert—

"(2A) If an Order in Council is made under section

one or more wards only, the Chief Executive

21A(e) and a by-election is to be held for those wards.".

(4) After section 24(4A) of the Local Government Act 1989 insert—

"(4B) If an Order in Council is made under section 21A(e), the Chief Executive Officer must not later than 3 days before nomination day

certify in writing that the voters' roll for the

Local Government (Amendment) Act 1998

s. 5 Act No. 54/1998

by-election has been prepared in accordance

with this Act.".

5. Elections not to be held on Easter Saturday

(1) After section 32(2) of the Local Government Act

1989 insert—
"(3) If the third Saturday in March in any year is

Easter Saturday, the annual election of Councillors is to be held on the second Saturday in March in that year.".

(2) After section 36(2) of the Local Government Act

1989 insert—
"(3) If the third Saturday in March in an election

year is Easter Saturday, the general election
of Councillors is to be held on the second

Saturday in March in that year.".

6. Clarification of election dates

For section 36(2) of the Local Government Act
1989 substitute—

"(2) A general election of Councillors must be

held on the third Saturday in March—

(a)	in every third year after the general election held under sub-section (1); or
(b)	in the case of the City of Melbourne, in every third year after 1996.".

7. Insertion of section 37A

After section 37 of the Local Government Act
1989 insert—

"37A. Extraordinary vacancies—Councillors elected under Schedule 3 (Part 4A) or 3A

Local Government (Amendment) Act 1998

s. 7
s. 8

Act No. 54/1998

(1) This section applies if—

(a) an extraordinary vacancy occurs as a result of the departure from office of a person who was elected to a Council in accordance with Part 4A of Schedule 3 or with Schedule 3A; and

(b) either—

(i)

the vacancy occurs more than is due; or

(ii)  the Council decides to fill the vacancy within 3 months before a general election is due.

(2) The extraordinary vacancy is to be filled in accordance with Schedule 3A.

(3) This section overrides any provision to the contrary in section 38.

(4) An election to fill an extraordinary vacancy

to which this section applies must be
conducted—

(a) by the returning officer who conducted the election at which the person whose departure created the extraordinary

vacancy was elected; or

(b)	if that is not possible, by the deputy returning officer at that election; or
(c)	if that is not possible, by a returning officer appointed in accordance with this Act.".

8. Extension of time for the holding of by-elections

In section 38(1) of the Local Government Act
1989, for "60th day" substitute "90th day".

Local Government (Amendment) Act 1998
Act No. 54/1998

9.  Consequential amendment concerning the filling of vacancies

In section 70 of the Local Government Act 1989,
for "A Councillor" substitute "Subject to
Schedule 3A, a Councillor".

10.  Regulations specifying performance measures may be made

After section 153A(5) of the Local Government
Act 1989 insert—

"(6) The regulations may require that Councils

include in their corporate plans specified
performance measures by which their
performance may be judged in relation to the
achievement of their business plans.".

11.  Change to place where notices of candidature to be received

In Schedule 2 of the Local Government Act
1989, in clause 3(2), for "Council office"

substitute "place specified in the public notice".

12. Minor amendment previously overlooked

In Schedule 2 of the Local Government Act elections for both wards and the municipal district as a whole".

1989, in clause 6(6A), for "the City of

13. Extension of election period

(1) In Schedule 2 of the Local Government Act

1989, in clauses 3(2), 7(1), 9(1) and (2), 10(2)(a) and (4) and 14(2), for "30th day" substitute "31st day".

(2) In Schedule 5 of the Local Government Act

1989, in clause 1, for "30th day" (wherever
occurring) substitute "31st day".

Local Government (Amendment) Act 1998

Act No. 54/1998 s. 14

14.  Ballot-papers not to show political allegiance etc. of candidates

In Schedule 2 of the Local Government Act
1989, after clause 14(4) insert—

"(5) Despite sub-clause (4), a ballot-paper must

not contain any reference to the allegiance of
a candidate to any political party or other
cause or to the fact that a candidate has no
such allegiance.

(6) Sub-clause (5) does not apply to the name of a candidate.".

15. Further restriction on who can be a scrutineer

In Schedule 2 of the Local Government Act

1989, after clause 15(3)(c) insert—

"; or

(d) a person appointed by the State Electoral Office, the Australian Electoral Commission or another Council to be involved in the conduct of the election if that Office, Commission or Council has been appointed to conduct the election.".

16.  Disadvantaged voters may ask for assistance with postal voting

In Schedule 3 of the Local Government Act

1989, after clause 2(2) insert—

"(2A) The voter may also request—

(a) a person nominated by the voter; or

(b) an authorised person—

to complete any certificate or declaration that must accompany a postal vote or to sign such

Local Government (Amendment) Act 1998

s. 17 Act No. 54/1998

a certificate or declaration on the voter's

behalf.".

17. Restriction on number of recounts of votes

In Schedule 3 of the Local Government Act

1989, after clause 13(1) insert—

"(1A) The returning officer may only exercise the

power conferred on her or him by sub-clause (1)(a) once in relation to any parcel of ballot- papers.

(1B) If the returning officer has complied with a

request under sub-clause (1)(b) in relation to
a parcel of ballot-papers, sub-clause (1)(b)
ceases to apply to that parcel of ballot-
papers, regardless of who makes any
subsequent request.".

18.  Clarification concerning election methods for certain Councils

In Schedule 3 of the Local Government Act

1989—

(a) "PART 4A—METHOD TO BE USED

for the heading to Part 4A substitute FOR SPECIFIED COUNCILS";

(b) in clause 11A(1), omit "at which 2 or more Councillors are to be elected".

19. Insertion of Schedule 3A

After Schedule 3 of the Local Government Act

1989 insert—

'SCHEDULE 3A—PROVISIONS WITH RESPECT TO

FILLING EXTRAORDINARY VACANCIES

PART 1—PRELIMINARY MATTERS
Local Government (Amendment) Act 1998

Act No. 54/1998 s. 19

1. Definitions

In this Schedule—

"eligible candidate" means a person who—

(a) was a candidate at the relevant election; and

(b) did not withdraw or retire from, and was not elected at, that election; and

(c) is still eligible to be elected as a Councillor;

"relevant election" means the election at which the

vacating Councillor was elected;

"vacating Councillor" means the person whose departure

created the extraordinary vacancy (even if that person
never became a Councillor).

2. Invitation to participate

(1) Within 14 days of an extraordinary vacancy occurring, the returning officer—

(a)	must publish a public notice inviting eligible candidates to participate in a countback of votes; and
(b)	must write to each eligible candidate whose current address is known inviting the candidate to participate in a countback of votes.

(2) A person who wishes to participate in a countback of votes
must give the returning officer a signed notice that—

(a) states that wish; and

(b) declares that she or he is an eligible candidate; and

(c) contains any other details required by the regulations—

before 4 p.m. on the 14th day after the date of the notice or

written invitation.

3. Filling of multiple vacancies

(1) If there is more than one extraordinary vacancy to be filled at any time, the extraordinary vacancy that occurred first is to be filled first.

Local Government (Amendment) Act 1998

s. 19 Act No. 54/1998

(2) If, in the opinion of the returning officer, it is impossible to
determine which vacancy occurred first, the vacating
Councillor who was elected first (either at the same election
or in point of time) is deemed to have left her or his office
before the other vacating Councillor or Councillors.

(3) If it is still not possible to determine which vacancy

occurred first despite sub-clause (2), the returning officer
must determine by lot which extraordinary vacancy is to be
filled first.

(4) The returning officer may comply with clauses 2(1) and (2) in respect of an extraordinary vacancy even while she or he or another returning officer is complying with those sub-

clauses in respect of another extraordinary vacancy.

4.  Procedure if no eligible candidates wish to participate in countback

(1) If no eligible candidate gives the returning officer the notice

required by clause 2(3) within the time required by that
clause, a by-election must be held to fill the extraordinary
vacancy.

(2) Despite clause 3(1), by-elections to fill 2 or more

extraordinary vacancies may be held at the same time.

5. Procedure if there is only 1 eligible candidate

If only one eligible candidate gives the returning officer the notice required by clause 2(3) within the time required by that clause, the returning officer must declare that candidate to be elected.

6. Procedure if there is more than one eligible candidate

(1) If more than one eligible candidate gives the returning

officer the notice required by clause 2(3) within the time

required by that clause, the returning officer must—

(a)	fix a place, date and time for a countback of votes in accordance with Part 2 of this Schedule; and
(b)	notify in writing each participating eligible candidate of the place, date and time; and
(c)	give public notice of the fact that a countback of votes will occur, the names and addresses of the participating eligible candidates and the place, date and time at or on which the countback will occur.

Local Government (Amendment) Act 1998

Act No. 54/1998 s. 19

(2)	The date fixed for the countback must be the date that is, in the opinion of the returning officer, the first date on which it will be practicable to conduct a countback in accordance
with this Act.

7. Other procedural matters

(1) An eligible candidate who has given the notice required by

clause 2(3) may withdraw the notice before 4 p.m. on the
day before the date fixed for the countback of votes.

(2) A notice of withdrawal must contain the details required by the regulations and must be signed by the candidate.

(3) If an eligible candidate who has given the notice required by clause 2(3) dies before the countback of votes is completed, the notice becomes void.

8. Other matters

Clauses 15, 17 and 25(2) of Schedule 2 and clauses 12 and

13 of Schedule 3 apply to a countback of votes.

PART 2—COUNTBACK PROCEDURE

9. Countback may be conducted using existing electronic database

(1) This clause applies if a copy of all valid ballot-papers cast at
a relevant election exists in an electronic form.

(2) The returning officer may conduct a countback of votes by

using the electronic form of the ballot-papers if she or he
certifies in writing that she or he is satisfied, after
conducting any tests that she or he considers to be
appropriate, that the electronic form of the ballot-papers is
an accurate copy of all the valid ballot-papers that were cast
at the relevant election.

10. Retrieval and opening of parcels of ballot-papers

(1) This clause applies if neither clause 9(1) nor (2) applies.

(2) The returning officer must ask the Chief Executive Officer for the parcels of valid ballot-papers that were given to the Chief Executive Officer after the relevant election.

(3) The Chief Executive Officer must comply with the request as soon as it is reasonably practicable to do so.

(4) The returning officer must open the parcels of ballot-papers

at the place and time, and on the date, fixed for the
countback of votes under clause 6.

Local Government (Amendment) Act 1998

s. 19 Act No. 54/1998

(5) If any validly appointed scrutineers are present for the

countback and have indicated that they wish to observe the
opening of the parcels, the parcels must be opened in the

presence of those scrutineers.

11. Relevant ballot-papers to be ascertained

The following ballot-papers must be brought together—

(a)	if the vacating Councillor obtained a quota on first preferences, all the ballot-papers on which those preferences are marked; or
(b)	if the vacating Councillor was elected after a transfer or transfers of ballot-papers—

(i)  all the ballot-papers counted to the vacating Councillor at the time that she or he was elected; and

(ii)  if the vacating Councillor was declared elected under clause 11B(19) of Schedule 3 following the exclusion of a candidate, all of the ballot- papers that—

(A) were not transferred to her or him from

that candidate or those candidates

because it was unnecessary; and

(B) showed a next available preference for

the vacating Councillor.

12.  Votes to be transferred from vacating Councillor to eligible candidates

(1) Those ballot-papers must then be transferred to the

participating eligible candidates in accordance with the next
available preference shown on the ballot-papers, at their
respective transfer values, beginning with the ballot-papers
with the highest transfer value and ending with the ballot-
papers with the lowest transfer value, and must be

transferred as follows—

(a)	the total number of ballot-papers of a particular transfer value that show the next available preference for a particular participating eligible candidate must be multiplied by that transfer value; and
(b)	the number obtained under paragraph (a) (disregarding any fraction) must be credited as votes to that candidate; and

Local Government (Amendment) Act 1998

Act No. 54/1998 s. 19

(c) all those ballot-papers must be transferred to that candidate.

(2) The transfer value of a ballot-paper is—

(a)	in the case of a ballot-paper received by the vacating Councillor as a first preference—1;
(b)	in the case of a ballot-paper received by the vacating Councillor after the count of first preferences, but before the transfer at which she or he was elected— the transfer value at which it was received by the vacating Councillor;
(c)	in the case of a ballot-paper received by the vacating Councillor at the transfer at which she or he was elected—the number obtained by dividing the number of votes by which the vacating Councillor, immediately before that transfer, was short of the quota, by the number of ballot-papers transferred to the vacating Councillor at that transfer;
(d)	in the case of a ballot-paper specified in clause 11(b)(ii)—the transfer value at which the ballot-paper would have been transferred to the vacating Councillor if a transfer had been necessary.

(3) For the purposes of this clause—

(a) a preference expressed for one of the following people is to be disregarded—

(i) the vacating Councillor; or

(ii)  a person elected at the relevant election or at a countback of votes; or

(iii)  a person who is not participating in the countback of votes; and

(b) a preference that has been disregarded is to be taken to be substituted for the next available preference on the ballot-paper that is not for a person listed in

paragraph (a)(i), (ii) or (iii); and

(c)

a first preference for a participating eligible candidate appears on a ballot-paper that was transferred to the vacating Councillor is to be counted for that candidate.

13. Countback to be stopped if absolute majority obtained
Local Government (Amendment) Act 1998

s. 19 Act No. 54/1998

(1) After the transfers required by clause 12 have been

completed, if a participating eligible candidate has an
absolute majority the returning officer must declare that

candidate to be elected.

(2)	For the purposes of this clause, a candidate has an absolute majority if the number of votes credited to that candidate is more than 50% of the total number of votes credited to all
the participating eligible candidates after the transfers.

14. Next stage (if necessary)

(1) If no participating eligible candidate has an absolute

majority of votes, the participating eligible candidate with
the fewest votes must be excluded.

(2) The excluded candidate's ballot-papers must be transferred

to the continuing participating eligible candidates in
accordance with the preferences shown on those ballot-
papers, at their respective transfer values, beginning with
the ballot-papers with the highest transfer value and ending
with those with the lowest transfer value, as follows—

(a)	the total number of ballot-papers received by the excluded candidate at a particular transfer value and expressing the next available preference for a particular continuing eligible candidate must be multiplied by that transfer value; and
(b)	the number obtained under paragraph (a) (disregarding any fraction) must be added to the number of votes of that continuing candidate; and
(c)	all those ballot-papers must be transferred to that continuing candidate.

(3) The transfer value of a ballot-paper for the purposes of this
clause is the same as the transfer value set out in clause
12(2).

(4) After doing this in respect of each continuing participating

eligible candidate, if a candidate has an absolute majority
the returning officer must declare that candidate to be
elected.

(5)	For the purposes of this clause, a candidate has an absolute majority if the number of votes credited to that candidate is more than 50% of the total number of votes credited to all
the continuing participating eligible candidates after the transfers and additions required by sub-clause (2).

Local Government (Amendment) Act 1998

Act No. 54/1998 s. 19

15. Process if vote equal

(1) If—

(a)	a participating eligible candidate must be excluded; and
(b)	2 or more of the continuing participating eligible candidates having the fewest votes have an equal number of votes after the process referred to in clause

13 or clause 14—

the candidate who had the fewest votes at the last count or transfer at which they had an unequal number of votes is to be excluded.

(2) If there is no stage at which the 2 or more continuing
participating eligible candidates had an unequal number of
votes, the returning officer must decide by lot which
candidate is to be excluded.

16. Final stage (if necessary)

(1) If no participating eligible candidate has an absolute

majority of votes the process described in clause 14 must be

repeated until—

(a)	a participating eligible candidate receives an absolute majority within the meaning of clause 14(5); or
(b)	there are only 2 continuing participating eligible candidates, neither of whom has an absolute majority of votes.

(2) If sub-clause (1)(b) applies, the returning officer must

declare to be elected the candidate who had the most votes
at the last count or transfer at which the 2 candidates had an

unequal number of votes.

(3) If there is no stage at which the 2 candidates had an unequal
number of votes, the returning officer must decide by lot
which candidate is to be elected.

17. Declaration of result

(1) As soon as possible after the election of a candidate, the
returning officer must publicly declare that candidate to be
elected.

(2) The returning officer must as soon as is practicable after

making such a declaration—

Local Government (Amendment) Act 1998

s. 19

s. 20 Act No. 54/1998

(a) give public notice of the name of the person elected; and

(b) advise the Minister of the result.

18. Ballot-papers to be returned

(1) This clause applies if the returning officer was given parcels of ballot-papers under clause 10.

(2) Clause 15 of Schedule 3 (other than clauses 15(1)(a)(ii) and (iii) and (c)(ii)) applies as if a reference in that clause to the count of votes was a reference to a countback of votes.

(3) A reference to 3 years in clause 15 is to be continued to be
construed as a reference to 3 years after the Chief Executive
Officer first received the parcels under that clause.

19. Replacement of a Councillor elected at a countback

(1) In this clause—

"first vacating Councillor" means a vacating Councillor who was elected at a general election;

"later vacating Councillor" means a vacating Councillor

who was elected to the office held by the first
vacating Councillor as a result of a countback of votes
under this Schedule (even if she or he is not the
immediate successor of the first vacating Councillor).

(2) If an extraordinary vacancy is caused by the departure of a
later vacating Councillor, a reference in this Part (other than
in sub-clause (1)) to "vacating Councillor" is to be read as a
reference to the first vacating Councillor.'.

20.  National Competition Policy principles to apply to local laws

(1) In Schedule 8 of the Local Government Act

1989, after clause 2(i) insert—

"(j) restrict competition unless it can be

demonstrated that—

(i)  the benefits of the restriction to the community as a whole outweigh the costs; and

Local Government (Amendment) Act 1998

Act No. 54/1998 s. 22

(ii)  the objectives of the local law can only be achieved by restricting competition.".

(2) After section 123(2) of the Local Government

Act 1989 insert—

"(3) If the Minister is of the opinion that a local

law substantially breaches clause 2(j) of that the local law be revoked unless she or he has consulted the Council that made the local law about the possible breach.

(4) The Minister must not, before 1 July 1999,

recommend that a local law made before
1 July 1997 be revoked on the grounds that it
substantially breaches clause 2(j) of
Schedule 8.".

21. Change to regulation-making power

In Schedule 12 of the Local Government Act
1989, in clause 5, for "spread" substitute

"attendance".

22. Statute law revision

In section 228(1) of the Local Government Act

1989—

(a)

for "the Local Government Board against" against";

(b) for "Local Government Board" (wherever else occurring) substitute "panel".

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Local Government (Amendment) Act 1998

Notes Act No. 54/1998

NOTES

†

Minister's second reading speech—

Legislative Assembly: 23 April 1998

Legislative Council: 6 October 1998

The long title for the Bill for this Act was "to amend the Local

Government Act 1989 and for other purposes."

Constitution Act 1975:

Absolute majorities:

Legislative Assembly: 2 and 3 September 1998

Legislative Council: 6 October 1998