Local Government Amendment (Early Intervention) Act 2013 (NSW)

An Act to amend the Local Government Act 1993 to improve the performance and accountability of councils; and for related purposes.

1Name of Act

This Act is the Local Government Amendment (Early Intervention) Act 2013.

2Commencement

This Act commences on the date of assent to this Act, or on the date of commencement of the Local Government Amendment (Conduct) Act 2012, whichever is the later.

Schedule 1Amendment of Local Government Act 1993 No 30[1]Section 66 Appointment of administrator

Insert “(the appointing Minister)” before “may” in section 66 (1).

[2]Section 66 (1A)

Insert after section 66 (1):

(1A)

If more than one administrator is appointed, each administrator has the functions of the council specified in the instrument of appointment.

[3]Section 66 (3)

Omit “section 740”. Insert instead “Part 8 of Chapter 13”.

[4]Section 66 (4)

Omit the subsection. Insert instead:

(4)

An administrator is to be paid a salary determined by the appointing Minister, with the concurrence of the Minister for Local Government, from the council’s funds.

[5]Section 66 (5A)

Insert after section 66 (5):

(5A)

If more than one administrator is appointed for a council, the appointing Minister may give directions for the purpose of resolving any issues that arise as a result of there being more than one administrator.

[6]Section 234 When does a vacancy occur in a civic office? (as amended by the Local Government Amendment (Conduct) Act 2012)

Omit “under section 440I, 482 or 482A” from section 234 (1) (d).

Insert instead “under this Act or because the council has been suspended under this Act”.

[7]Section 248A Annual fees or other remuneration not to be paid during period of suspension

Insert “or any expenses,” before “to which a councillor”.

[8]Section 248A (b)

Omit “any fee or other remuneration”.

Insert instead “any such fee or other remuneration, or expense,”

[9]Section 255 Governor may dismiss mayor and councillors

Omit “after considering the results of the inquiry,” from section 255 (1) (b).

[10]Section 255 (1A)

Insert after section 255 (1):

(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.

[11]Section 255 (4)

Insert after section 255 (3):

(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.

[12]Section 256 Governor may appoint administrator or order fresh election

Insert after section 256 (1):

(1A)

More than one administrator may be appointed (with the same or different functions).

[13]Section 257 Declaration of council as non-functioning

Omit “under section 255” from section 257 (1).

[14]Section 258 Administrator

Omit “When the administrator of a council takes office” from section 258 (1).

Insert instead “When an administrator of a council appointed under this Division takes office”.

[15]Section 258 (1A)

Insert after section 258 (1):

(1A)

If more than one administrator is appointed, each administrator has the functions of the council specified in the instrument of appointment.

[16]Section 258 (2) and (4)

Omit “The administrator” wherever occurring.

Insert instead “An administrator”.

[17]Section 258 (2A)

Insert after section 258 (2):

(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.

[18]Section 258 (3)

Omit “the administrator’s”. Insert instead “an administrator’s”.

[19]Section 277 May the holder of a civic office be re-elected?

Insert at the end of the section:

(2)

The holder of a civic office is not disqualified from being re-elected merely because the holder, or the council, is suspended under this Act.

[20]Section 287 When is an ordinary election of councillors held?

Omit section 287 (2) (b). Insert instead:

(b)

the council for the area is dismissed, or

[21]Section 290 When is an election of a mayor by the councillors to be held?

Insert at the end of the section (after the note):

Note—

Elections are not held while a council is suspended under Part 7 or 8 of Chapter 13.

[22]Section 368 What is the quorum for a meeting?

Insert at the end of the section:

(2)

This section does not apply if the quorum is required to be determined in accordance with directions of the Minister in a performance improvement order issued in respect of the council.

[23]Chapter 13, Introduction

Omit the second last paragraph of the introduction to Chapter 13.

Insert instead:

Councils are accountable to residents and ratepayers in their local government area. The Director-General has power to investigate a council, its work and its activities and report on the investigation to the Minister. The Minister has power to issue a performance improvement order in respect of a council, to suspend a council and to initiate a public inquiry into the operations of a council.

[24]Section 429

Omit the section. Insert instead:

429Provision of documents or information about council(1)

The Minister or Director-General may at any time, by order, direct a council, a councillor or the general manager of a council to provide such documents or information concerning the council, its operations or its activities as the Minister or Director-General specifies in the order.

(2)

A copy of the order must be served on the council or person required to provide the documents or information.

Note—

Failure to comply with a direction is an offence under section 661.

[25]Section 429A Complaints about councils, councillors, delegates and staff

Omit “authorised under section 430” from section 429A (3) (a).

Insert instead “under this Division”.

[26]Section 430

Omit the section. Insert instead:

430Director-General may investigate councils

The Director-General may, at the request of the Minister or on the Director-General’s own initiative, conduct an investigation into any aspect of a council or of its work and activities.

[27]Section 431 Powers in connection with investigation

Omit “purpose of exercising his or her functions” from section 431 (1).

Insert instead “purpose of conducting an investigation under this Division”.

[28]Section 431

Omit “a Departmental representative” and “the Departmental representative” wherever occurring.

Insert instead “the Director-General”.

[29]Section 431 (1), note

Insert at the end of section 431 (1):

Note—

Failure to comply with a direction is an offence under section 661.

[30]Section 431 (3)

Omit “A Departmental representative”. Insert instead “The Director-General”.

[31]Section 432 Entry on to premises

Omit “, in relation to the functions of a Departmental representative, to the Director-General and a Departmental representative”.

Insert instead “to the Director-General when exercising functions in respect of an investigation under this Division”.

[32]Section 433 Report of investigation

Omit section 433 (1) and (2). Insert instead:

(1)

The Director-General must report to the Minister on the results of an investigation under this Division and must send a copy of the report to the council concerned.

(2)

The report may comment on any matter that, in the Director-General’s opinion, warrants special mention and may contain such recommendations as the Director-General considers appropriate.

[33]Section 434 Council’s response to report

Omit “a Departmental representative’s report” from section 434 (1).

Insert instead “a report made by the Director-General following an investigation under this Division”.

[34]Section 434B Expenses of investigation to be borne by council

Omit section 434B (1). Insert instead:

(1)

The Director-General may recover the reasonable expenses incurred by the Director-General in respect of an investigation under this Division if the investigation relates to:

• (a)

  the administration of an election by a general manager, or

• (b)

  a recurring problem with the administration of a council.

(1A)

A recurring problem with the administration of a council means any facts or circumstances with respect to the council, its work or its activities that have been the subject of previous Ministerial intervention, and that have continued to exist or have recurred, despite that Ministerial intervention.

(1B)

In this section, Ministerial intervention means:

• (a)

  the issue of a performance improvement order, or

• (b)

  the temporary suspension of a council under Part 7.

[35]Section 434B (6) and (7)

Omit section 434B (6). Insert instead:

(6)

In this section, expenses incurred in respect of an investigation under this Division include:

• (a)

  investigation expenses of the Director-General or departmental staff, and

• (b)

  remuneration paid to departmental staff assisting with the investigation, and

• (c)

  expenses associated with the preparation of a report in respect of the investigation.

(7)

The Director-General may certify that an investigation under this Division relates to a recurring problem with the administration of a council and that certificate is sufficient evidence, unless the contrary is proved, that the investigation relates to a recurring problem with the administration of the council.

[36]Section 434C

Insert after section 434B:

434CSelf-incrimination(1)

A person is not excused from a requirement under this Division to provide records or information or to answer a question on the ground that the record, information or answer might incriminate the person or make the person liable to a penalty.

(2)

However, any information provided or answer given by a natural person in compliance or in purported compliance with a requirement under this Division is not admissible in evidence against the person in criminal proceedings (except proceedings for an offence of failing to comply with the requirement or of providing information that is false or misleading) if the person objected at the time to doing so on the ground that it might incriminate the person.

(3)

Despite any such objection, any answer or information may be used in connection with a public inquiry or an investigation under this Division, or an investigation or the taking of disciplinary action against the person under Division 3 of Part 1 of Chapter 14, and is admissible in proceedings under this Act relating to misconduct.

(4)

Any record provided by a person in compliance with a requirement under this Division is not inadmissible in evidence against the person in criminal proceedings on the ground that the record might incriminate the person.

[37]Section 435 Surcharging by Director-General

Omit “a Departmental representative” from section 435 (1).

Insert instead “the Director-General”.

[38]Section 435 (2)

Omit “A Departmental representative”. Insert instead “The Director-General”.

[39]Section 435 (3)

Omit the subsection.

[40]Section 436 Procedure for surcharging

Omit “Departmental representative” wherever occurring.

Insert instead “Director-General”.

[41]Chapter 13, Parts 6–9

Insert after Part 5:

Part 6Performance management438APerformance improvement order(1)

The Minister may issue an order in respect of a council if the Minister reasonably considers that action must be taken to improve the performance of the council.

(2)

An order issued under this section is a performance improvement order.

(3)

A performance improvement order is to specify:

• (a)

  the reasons why the Minister has decided to issue the order, and

• (b)

  the actions that the Minister requires to be taken to improve the performance of the council.

(4)

Actions to improve the performance of a council include any actions the Minister considers necessary to improve or restore the proper or effective functioning of the council.

(5)

The order may require action to be taken by the council, by individual councillors, or both.

(6)

A performance improvement order may require the quorum for a meeting of the council to be determined as specified by the Minister in the performance improvement order.

(7)

A copy of the performance improvement order is to be served on the council.

(8)

In relation to a performance improvement order, a reference to an action, or the taking of any action, includes a reference to doing any thing or refraining from doing any thing.

438BCriteria to be considered by Minister(1)

The regulations may make provision for or with respect to the criteria to be considered by the Minister in issuing performance improvement orders (performance improvement criteria).

(2)

A performance improvement order may be issued only after consideration of the performance improvement criteria.

438CMinister to give notice of intention to issue performance improvement order(1)

The Minister is to give a council notice in writing of his or her intention to issue a performance improvement order in respect of the council.

(2)

The notice is to specify the following:

• (a)

  the terms of the proposed performance improvement order, including the period for compliance with the order,

• (b)

  the reasons why it is proposed to issue the performance improvement order (including any evidence supporting the Minister’s opinion that improvement is required),

• (c)

  the actions that may be taken by the Minister if the performance improvement order is not complied with.

(3)

The notice must invite the council to make submissions in respect of the proposed performance improvement order within a consultation period specified in the notice.

(4)

The notice is to specify a consultation period of:

• (a)

  not less than 21 days from the date the notice is served on the council, unless paragraph (b) applies, or

• (b)

  not less than 7 days from the date the notice is served on the council, if the Minister considers that the improvement in the council’s performance is required as a matter of urgency.

(5)

The Minister is to have regard to any submissions made by the council during the consultation period in deciding:

• (a)

  whether to issue the proposed performance improvement order, and

• (b)

  whether any changes should be made to the terms of the proposed performance improvement order.

(6)

The Minister is not required to give notice to a council of his or her intention to issue a performance improvement order in respect of the council if:

• (a)

  the council is suspended under Part 7, or

• (b)

  the order is issued in response to the results of a public inquiry in relation to a council.

438DPerformance improvement order to be made public(1)

The Director-General is to cause any performance improvement order issued by the Minister to be published on the Department’s website.

(2)

A council is to cause any performance improvement order issued in respect of the council to be published on the council’s website.

438ECompliance with performance improvement order(1)

The governing body of a council is responsible for ensuring the council’s compliance with a performance improvement order.

(2)

A council complies with a performance improvement order only if the actions required by the performance improvement order (including any actions required to be taken by individual councillors) are taken to the satisfaction of the Minister.

438FCompliance report(1)

A council must provide the Minister with a written report on its compliance with a performance improvement order within the time required by the performance improvement order.

(2)

Such a report is referred to in this Part as a compliance report.

(3)

A compliance report must specify any actions taken that demonstrate compliance with the performance improvement order.

(4)

A compliance report must comply with any requirements specified in the performance improvement order.

438GAppointment of temporary adviser(1)

If the Minister issues a performance improvement order in respect of a council, the Minister may appoint one or more persons as a temporary adviser to the council.

(2)

A temporary adviser may be appointed in the performance improvement order or by subsequent order of the Minister served on the council.

(3)

A temporary adviser may be appointed on the recommendation of the council or on the Minister’s own initiative.

(4)

The principal functions of a temporary adviser are:

• (a)

  to provide advice and assistance to the council for the purpose of ensuring that it complies with the performance improvement order, and

• (b)

  to monitor the council’s compliance with the performance improvement order.

(5)

A temporary adviser has such other functions as are specified in the instrument by which he or she is appointed.

(6)

A temporary adviser is appointed for the term specified in the instrument by which he or she is appointed. The term must not exceed the period for compliance with the performance improvement order.

(7)

A temporary adviser must be paid a salary from the council’s funds determined by the council (in the case of an adviser appointed on the recommendation of the council) or by the Minister (in any other case).

(8)

The Minister may terminate a temporary adviser’s appointment at any time.

438HCo-operation with temporary adviser(1)

If a temporary adviser is appointed to a council, the council, councillors and members of the staff of the council are required to co-operate with the temporary adviser and to provide any information or assistance the temporary adviser reasonably requires to exercise his or her functions.

(2)

In particular, the council is to give the temporary adviser an opportunity to review any proposed compliance report at least 14 days before it is given to the Minister and is to give the Minister a copy of the temporary adviser’s comments (if any) on the compliance report.

(3)

A contravention of this section is a failure to comply with a performance improvement order.

Part 7Temporary suspension of council438IPower of Minister to suspend council(1)

The Minister may, by order published in the Gazette, suspend a council for a period specified in the order if the Minister reasonably believes that the appointment of an interim administrator is necessary to restore the proper or effective functioning of the council.

(2)

An order under this section is referred to in this Part as a suspension order.

438JCriteria to be considered by Minister(1)

The regulations may make provision for or with respect to the criteria to be considered by the Minister in suspending councils under this Part (suspension criteria).

(2)

A council may be suspended under this Part only after consideration of the suspension criteria.

438KMinister to give notice of intention to suspend council(1)

The Minister is to give a council notice in writing of his or her intention to suspend the council.

(2)

The notice is to specify:

• (a)

  the reasons why it is proposed to suspend the council, and

• (b)

  the duration of the proposed suspension.

(3)

The notice must invite the council to make submissions in respect of the proposed suspension within a consultation period specified in the notice.

(4)

The notice is to specify a consultation period of:

• (a)

  not less than 14 days from the date the notice is served on the council, unless paragraph (b) applies, or

• (b)

  not less than 7 days from the date the notice is served on the council, if the Minister considers that the suspension is required as a matter of urgency.

(5)

The Minister is to have regard to any submissions made by the council during the consultation period in deciding whether to suspend the council.

438LEffect of suspension on councillors(1)

During the period in which a council is suspended under this Part, any persons holding civic office in relation to the council are taken also to be suspended from office.

(2)

A person, while suspended from civic office under this section:

• (a)

  is not entitled to exercise any of the functions of the civic office, and

• (b)

  is not entitled to any fee or other remuneration, or to the payment of expenses or to the use of any council facilities, to which the person would otherwise be entitled as the holder of the civic office.

438MAppointment of interim administrator(1)

The Minister must, in a suspension order or by subsequent order published in the Gazette, appoint an administrator of a council that is suspended.

(2)

The order is to specify the period for which the administrator is appointed, not exceeding the period during which the council is suspended.

(3)

An administrator appointed under this section is an interim administrator.

(4)

More than one interim administrator may be appointed for a council (with the same or different functions).

(5)

An interim administrator of a council has, during the period of appointment as administrator, all the functions of the council, or, if more than one interim administrator is appointed, the functions of the council specified in the instrument of appointment.

(6)

If more than one interim 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 interim administrator.

(7)

An interim administrator must be paid a salary from the council’s funds determined by the Minister.

(8)

The Minister may, by order published in the Gazette, extend the period for which an interim administrator is appointed if the period during which the council is suspended is extended.

(9)

The Minister may terminate an interim administrator’s appointment at any time.

(10)

A reference in this or any other Act, or any statutory instrument, to an administrator of a council includes, unless the context otherwise requires, a reference to an interim administrator.

438NReport by interim administrator(1)

An interim administrator is to give the Minister a written report about his or her administration of the council.

(2)

The report is to include any recommendations of the interim administrator in relation to improving or restoring the proper and effective functioning of the council.

(3)

The interim administrator is to provide the report to the Minister no less than 14 days before the end of the initial suspension period of the council.

(4)

The initial suspension period of the council is the suspension period as initially specified in the suspension order, before any extension of the period by further order.

(5)

If the Minister amends a suspension order to extend the suspension period of a council, the interim administrator is to prepare a further report under this section in respect of that extended period and give that report to the Minister no less than 14 days before the end of the extended suspension period.

438OSuspension period(1)

The maximum period for which a council can initially be suspended by a suspension order is 3 months.

(2)

However, the Minister may, by order published in the Gazette on or before the end of the period during which the council is suspended, amend the suspension order to extend or further extend the period during which the council is suspended.

(3)

A suspension may be extended only if the Minister reasonably believes that an extension is necessary to restore the proper or effective functioning of the council.

(4)

The maximum total period for which a council can be suspended by a suspension order, as amended under this section, is 6 months.

(5)

The Minister is required to give a council notice in writing of his or her intention to extend the suspension of the council at least 7 days before the order extending the suspension is made.

(6)

The notice is to specify:

• (a)

  the reasons why it is proposed to extend the suspension, and

• (b)

  the duration of the proposed extension.

(7)

Submissions in respect of the proposed extension are not to be invited.

438PPerformance improvement orders during suspension period(1)

A performance improvement order may be issued in respect of a council even if it is suspended under this Part.

(2)

An order issued in such a case may require action to be taken by individual councillors, even though they are suspended by the suspension order.

438QMaximum number of suspensions(1)

The Minister cannot, during the term of a council, make a suspension order in respect of the council more than twice on the basis of the same facts or circumstances.

(2)

This section does not limit the power of the Minister under this Part to extend the period during which a council is suspended by a suspension order.

438ROrdinary election during suspension period

If an ordinary election of councillors of a council is held during the period in which the council is suspended under this Part, a suspension under this Part:

• (a)

  is taken to continue after that election, even if it would otherwise have ended, and

• (b)

  is taken to end immediately before the first meeting of the council after the election.

438SElection of mayor during suspension period(1)

An election of the mayor by councillors is not required to be held during a period in which the council is suspended under this Part.

(2)

However, any election that would, but for this section, be required to be held during a period in which the council is suspended must instead be held within 14 days after the end of the suspension period.

(3)

Subsection (2) does not apply if the council is dismissed, or an ordinary election of councillors is held, before the end of the suspension period.

438TNo amalgamations or alterations to area during suspension(1)

A proclamation under section 218A or 218B is not to be made in relation to the area of a council while the council is suspended under this Part.

(2)

A proposal that a function be exercised under section 218A or 218B in relation to the area of a council cannot be made by or to the Minister while the council is suspended under this Part.

Part 8Public inquiries438UPublic inquiries(1)

The Governor or the Minister may appoint a person as commissioner, or two or more persons as commissioners, to hold a public inquiry and to report to the Governor or the Minister with respect to:

• (a)

  any matter relating to the carrying out of the provisions of this Act or any other Act conferring or imposing functions on a council, and

• (b)

  any act or omission of a member of a council, any employee of a council or any person elected or appointed to any office or position under this or any other Act conferring or imposing functions on a council, being an act or omission relating to the carrying out of the provisions of the Act concerned, or to the office or position held by the member, employee or person under the Act concerned, or to the functions of that office or position.

(2)

For the purposes of any inquiry under this section, any person appointed to hold the inquiry has the powers, authorities, protections and immunities conferred on a commissioner, as well as the powers, authorities, protections and immunities conferred by Division 1 of Part 2 of the Royal Commissions Act 1923:

• (a)

  on a sole commissioner (if the person is the only person appointed to hold the inquiry), or

• (b)

  on a chairperson of a commission (if the person is one of two or more persons appointed to hold the inquiry and has been appointed as chairperson of the inquiry).

(3)

The provisions of section 24 of the Local Court Act 2007 apply to any witness or person summoned by or appearing before the person so appointed in the same way as it applies to witnesses and persons in proceedings under that Act.

(4)

The provisions of the Royal Commissions Act 1923 (section 13 and Division 2 of Part 2 excepted) apply, with any necessary adaptations, to and in respect of any inquiry under this section and to and in respect of any witness or person summoned by or appearing before the person or persons holding the inquiry.

(5)

The Minister is to cause the report of the person or persons who have held an inquiry under this section to be laid before both Houses of Parliament. If neither House of Parliament is sitting, section 14B of the Royal Commissions Act 1923 applies.

438VExpenses of public inquiry to be borne by council in certain circumstances(1)

The Director-General, on behalf of the State, may recover the reasonable expenses incurred by the State in holding a public inquiry if the inquiry relates to a recurring problem with the administration of a council.

(2)

A recurring problem with the administration of a council means any facts or circumstances with respect to the council, its work or its activities that have been the subject of previous Ministerial intervention, and that have continued to exist or have recurred, despite that Ministerial intervention.

(3)

In this section, Ministerial intervention means:

• (a)

  the issue of a performance improvement order, or

• (b)

  the temporary suspension of a council under Part 7.

(4)

The Director-General may make a determination of the amount of the expenses referred to in subsection (1) and serve a notice on the council requiring the amount so determined be paid in recovery of the expenses.

(5)

An amount equal to the expenses as so determined, unless the Director-General otherwise decides, is payable to the Director-General as a debt by the council concerned.

(6)

The council may apply to the Administrative Decisions Tribunal for a review of whether any part of the expenses so determined are not reasonable expenses.

(7)

The Director-General must give effect to any decision of the Tribunal on a review of the determination of the amount of the expenses.

(8)

In this section, expenses incurred in holding a public inquiry include:

• (a)

  remuneration paid to the commissioner or commissioners who hold the public inquiry, and

• (b)

  remuneration paid to staff assisting with the inquiry, and

• (c)

  expenses associated with the attendance of witnesses or other persons at the inquiry.

(9)

The Director-General may certify that a public inquiry relates to a recurring problem with the administration of a council and that certificate is sufficient evidence, unless the contrary is proved, that the public inquiry relates to a recurring problem with the administration of the council.

438WSuspension of council during public inquiry(1)

The Minister may, by order published in the Gazette, suspend a council if a public inquiry relating to the council is held or to be held and the Minister considers it in the public interest to suspend the council.

(2)

The suspension:

• (a)

  starts on the date appointed by the Minister in the order as the start date for the suspension (being a date no earlier than the date the appointment of one or more commissioners to hold the inquiry takes effect), and

• (b)

  ends when the suspension is terminated or if the council is dismissed.

438XEffect of suspension(1)

During the period in which a council is suspended under this Part, any persons holding civic office in relation to the council are taken also to be suspended from office.

(2)

A person, while suspended from civic office under this section:

• (a)

  is not entitled to exercise any of the functions of the civic office, and

• (b)

  is not entitled to any fee or other remuneration, or to the payment of expenses or to the use of any council facilities, to which the person would otherwise be entitled as the holder of the civic office.

438YAppointment of interim administrator(1)

The Minister must, in an order suspending a council under this Part or by subsequent order published in the Gazette, appoint an administrator of a council that is suspended.

(2)

The order is to specify the period for which the administrator is appointed, not exceeding the period during which the council is suspended.

(3)

An administrator appointed under this section is an interim administrator.

(4)

More than one interim administrator may be appointed under this section (with the same or different functions).

(5)

An interim administrator of a council has, during the period of appointment as administrator, all the functions of the council, or, if more than one interim administrator is appointed, the functions of the council specified in the instrument of appointment.

(6)

If more than one interim 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 interim administrator.

(7)

An interim administrator must be paid a salary from the council’s funds determined by the Minister.

(8)

The Minister may terminate an interim administrator’s appointment at any time.

(9)

A reference in this or any other Act, or any statutory instrument, to an administrator of a council includes, unless the context otherwise requires, a reference to an interim administrator.

438ZTermination of suspension(1)

The Minister may, by order published in the Gazette, terminate the suspension of a council under this Part.

(2)

The Minister is to terminate the suspension of a council under this Part no later than 30 days after the inquiry report date, unless the council is dismissed on or before that date.

(3)

However, a failure to terminate the suspension within that 30-day period does not affect the validity of an order terminating the suspension that is made after that 30-day period.

(4)

For the purposes of this section, the inquiry report date is the date the report of the person or persons who held the public inquiry is provided to the Governor or the Minister, as the case requires.

438ZAOrdinary election during suspension period

If an ordinary election of councillors of a council is held during the period in which the council is suspended under this Part, a suspension under this Part:

• (a)

  is taken to continue after that election, even if it would otherwise have ended, and

• (b)

  is taken to end immediately before the first meeting of the council after the election.

438ZBElection of mayor during suspension period(1)

An election of the mayor by councillors is not required to be held during a period in which the council is suspended under this Part.

(2)

However, any election that would, but for this section, be required to be held during a period in which the council is suspended must instead be held within 14 days after the suspension ends.

(3)

Subsection (2) does not apply if the suspension ends because the council is dismissed or if an ordinary election of councillors is held before the suspension ends.

438ZCIssue of performance improvement orders in response to public inquiry(1)

A performance improvement order may be issued in response to the results of a public inquiry in relation to a council.

(2)

For the purposes of this Act, a performance improvement order is taken to be issued in response to the results of a public inquiry if:

• (a)

  a public inquiry in relation to a council is held, and

• (b)

  the performance improvement order specifies, in the reasons why the Minister has decided to issue the order, that it has been issued in response to the results of the public inquiry.

Note—

Under section 255, the Minister may, after considering whether the council has complied with the performance improvement order, recommend that the council be dismissed.

Part 9General438ZDService of Ministerial and departmental documents(1)

Any order, notice or other document that the Minister or Director-General is required to serve on or give to a council or a person under this Chapter may be served on or given to the council or person by electronic means if the council or person has given the Department an email address for the service of documents.

(2)

Service is effected when a copy of the order, notice or other document is sent to that email address.

(3)

This section does not prevent service by post or by any other method permitted by or under this Act.

[42]Section 440C Temporary suspension from civic office for serious corrupt conduct

Insert “, or to the payment of expenses or to the use of council facilities,” after “remuneration” in section 440C (2) (b).

[43]Section 440K Suspension of a councillor (as substituted by the Local Government Amendment (Conduct) Act 2012)

Omit section 440K (1). Insert instead:

(1)

A councillor, while suspended from office under this Division:

• (a)

  is not entitled to exercise any of the functions of the civic office, and

• (b)

  is not entitled to any fee or other remuneration, or to the payment of expenses or to the use of council facilities, to which he or she would otherwise be entitled as the holder of the civic office.

[44]Section 440L Appeals against disciplinary action (as substituted by the Local Government Amendment (Conduct) Act 2012)

Insert “, or expenses,” after “remuneration” in section 440L (6).

[45]Section 440P

Insert after section 440O (as substituted by the Local Government Amendment (Conduct) Act 2012):

440PService of departmental documents(1)

Any order, notice or other document that the Director-General is required to serve on or give to a person under this Division may be served on or given to the person by electronic means if the person has given the Department an email address for the service of documents.

(2)

Service is effected when a copy of the order, notice or other document is sent to that email address.

(3)

This section does not prevent service by post or by any other method permitted by or under this Act.

[46]Section 660 Obstruction

Omit the third dot point.

[47]Section 660

Omit “appointed as referred to in section 256” from the eighth dot point.

Insert instead “of a council appointed under this Act”.

[48]Chapter 18, Introduction

Omit the fourth dot point from the introduction to Chapter 18.

[49]Section 740 Public inquiries

Omit the section.

[50]Section 745 Delegation of functions by the Director-General

Insert at the end of the section:

(2)

A delegate may subdelegate to a member of staff of the Department any function delegated by the Director-General if the delegate is authorised in writing to do so by the Director-General.

[51]Schedule 8 Savings, transitional and other provisions consequent on the enactment of other Acts

Insert at the end of the Part containing provisions consequent on the enactment of the Local Government Amendment (Conduct) Act 2012 with appropriate clause numbering:

(1)

A reference to the Minister for Primary Industries in sections 57–66, as amended by the amending Act, is to be construed in the same way as a reference to the Minister for Land and Water Conservation in those sections was required to be construed, immediately before 1 March 2013, as a result of any administrative changes order that had effect before those sections were amended by the amending Act.

(2)

This clause is taken to have commenced on 1 March 2013.

(3)

This clause does not affect the operation of any administrative changes order made after 1 March 2013.

(4)

In this clause:

administrative changes order means an order under Part 4.2 of Chapter 4 of the Public Sector Employment and Management Act 2002.

[52]Schedule 8

Insert at the end of the Schedule with appropriate Part and clause numbering:

PartProvisions consequent on enactment of Local Government Amendment (Early Intervention) Act 2013

In this Part:

amending Act means the Local Government Amendment (Early Intervention) Act 2013.

(1)

Any investigation the Director-General authorised a person to conduct under section 430, before its substitution by the amending Act, that has not been completed, is taken on that substitution to be an investigation by the Director-General under section 430.

(2)

A Departmental representative authorised under section 430, before its substitution by the amending Act, to investigate any aspect of a council or of its work and activities and whose authority is in force immediately before that substitution is taken to have been delegated:

• (a)

  the functions of the Director-General under sections 431 and 432 in connection with the investigation, and

• (b)

  the functions of the Director-General under Division 2 of Part 5 of Chapter 13 (Surcharging).

(3)

The delegation may be varied or revoked by the Director-General.

(1)

The provisions of sections 255 (1A) and 438ZC, as inserted by the amending Act, extend to a public inquiry under section 740 held or commenced before those provisions commenced.

(2)

Section 740, as in force before its repeal by the amending Act, continues to apply in respect of any inquiry under that section that commenced before that repeal.

[53]Dictionary

Omit the definition of Departmental representative.

Insert in alphabetical order:

dismissal of a council—see section 255.

interim administrator means an interim administrator of a council appointed under Part 7 or 8 of Chapter 13.

performance improvement order means an order issued under section 438A.

[54]Dictionary, definition of “public inquiry”

Omit “section 740”. Insert instead “Part 8 of Chapter 13”.

Schedule 2Amendment of other legislationEnvironmental Planning and Assessment Act 1979 No 203

Omit “authorise” from section 117A (1). Insert instead “conduct”.

Government Information (Public Access) Regulation 2009

Insert after clause 4 (i):

(j)

performance improvement orders issued to a council under Part 6 of Chapter 13 of the LGA.