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Proportional Representation Society of
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Tel +613 9589 1802 |
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A0048538N
Victoria |
2018-12-23 |
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Local
Government Bill 2018 Victoria Exposure Draft (Showing only the Clauses
commented upon) See the full exposure draft here. table of
PROPOSALS Part 2—Councils Division 2—Constitution
of a Council 14
Electoral
structure of a Council Division 4—Election of Mayor and Deputy
Mayor 26
When is a Mayor to be
elected? Part 3 - Council
decision making Division
2 - Procedure and proceedings Part 9—Electoral provisions Division 4 - Holding
of general elections and by-elections Division 5—Conduct of
elections 283 Marking of ballot-paper at election to express preference Division 6 - Counting
of votes - single vacancy Division 7—Counting of votes—any
election to which Division 6 does not apply 289
2
or more Councillors to be elected Division 8—Countback process and
counting of votes 299
Process for counting of
votes at a countback Part 11—Consequential
amendments and repeals Division 1—Repeal of City
of Greater Geelong Act 1993 343
Repeal of City of Greater Geelong Act 1993 Division 2—Amendment of
City of Melbourne Act 2001 347
Amendment of section
6—Constitution of the Council 348
Amendment of section
6A—Constitution of Council may be altered 351
Amendment of section
9D—Procedure in relation to representatives
of corporations 356
Amendment of section
12—General elections 358
Amendment of section
15—Joint nominations for Lord Mayor and Deputy
Lord Mayor 359
Section 18
substituted—How votes to be counted 363
Section 24
amended—Filling of vacancies
Division 2—Constitution
of a Council
(1) A Council must consist of not fewer than 5 Councillors and not more than 12 Councillors. (2) The Mayor and Deputy Mayor are Councillors of the Council. (3) The number of Councillors of a Council for the purposes of subsection (1) is to be determined in accordance with the criteria prescribed by the regulations. (4) A Council may be constituted so that it consists of— (a) all Councillors elected to represent the municipal district as a whole; or (b) all Councillors elected to represent multi‑member wards into which the municipal district is divided with an equal number of Councillors to represent each ward; or (c) all
Councillors elected to represent single member wards
into which the municipal district is divided.
Note: In the exposure draft
of 2017, Clause 12(4)(c) above is incorrectly shown
as 12(4)(b), 14 Electoral structure of a Council (1) The Governor in Council may, on the recommendation of the Minister, make an Order in Council to do any one or more of the following in relation to the electoral structure of a Council— (a) specify or alter the total number of Councillors to be elected for the Council; (b) specify that the municipal district of the Council is to be an un-subdivided municipal district; (c) specify that the municipal district of the Council is to be subdivided into a specified number of wards; (d) alter the number of wards into which the municipal district of the Council is subdivided; (e) specify or alter the number of Councillors to be elected for each ward of the municipal district of the Council; (g) give a name to, or alter the name of, a ward of the municipal district of the Council. (2) Before recommending the making of an Order in Council under this section that provides for the subdivision of a municipal district into wards or alteration of the wards of a municipal district, the Minister must seek to ensure that— (a) each ward has approximately an equal number of voters per Councillor; and (b) the number of voters per Councillor in a ward does not vary from the average number of voters per Councillor in any other ward by more than 10 per cent. (3) An Order in Council made under this section— (a) must specify a day or days upon which the Order in Council comes into operation; and (b) may provide that the new electoral structure of the Council has effect for the purposes of, and from, the next general election of the Council; and (c) may provide that the alterations to the electoral structure of the Council specified in the Order in Council are described in a map lodged in the Central Plan Office or with the VEC as specified in the Order in Council; and (d) upon being published in the Government Gazette has the like force and effect as if it were expressly enacted in this Act; and (e) may be amended or revoked by another Order in Council; and (f) has full force and effect despite any non‑compliance with any of the matters required by this Act as preliminary to the making of the Order in Council. Division 4—Election of
Mayor and Deputy Mayor This Division applies to the election of the Mayor and Deputy Mayor of a Council other than the Melbourne City Council. (1) At a Council meeting that is open to the public, the Councillors must elect a Councillor to be the Mayor of the Council.
(2) Subject
to section 202(2)(d) and (3), any Councillor is
eligible for election or re‑election to the
office of Mayor. (3) The meeting to elect the Mayor must— (a) be chaired by the Chief Executive Officer; and (b) subject to this section, conduct the election process in accordance with the Governance Rules. (4) Subject to subsections (5) and (6), the Mayor must be elected by an absolute majority of the Councillors. (5) If an absolute majority of the Councillors cannot be obtained at the meeting, the Council may resolve to conduct a new election at a later specified time and date. (7) In this section, absolute majority means the number of Councillors which is greater than half the total number of the Councillors of a Council. 26 When is a Mayor to be elected? (1) A Mayor is to be elected no later than 1 month after the date of a general election. (2) The Mayor of the Greater Geelong City Council must be elected for a 2 year term. (3) Before the election of the Mayor, a Council, other than the Greater Geelong City Council, must determine by resolution whether the Mayor is to be elected for a 1 year or a 2 year term. (4) If the Mayor is elected for a 1 year term, the next election of the Mayor must be held on a day to be determined by the Council that is as close to the end of the 1 year term as is reasonably practicable. (5) If the Mayor is to be elected for a 2 year term, the next election of the Mayor must be held on a day to be determined by the Council that is as close to the end of the 2 year term as is reasonably practicable. (6) A Mayor is to be elected within one month after any vacancy in the office of Mayor occurs. (7) The election of a Mayor after the period specified in this section does not invalidate the election. (8) A Councillor elected to fill a vacancy in the office of Mayor caused other than by the expiration of a 1 year or a 2 year term serves the remaining period of the previous Mayor's term. (1) The Councillors must, immediately after electing a Mayor at a meeting under section 26, elect another Councillor to the office of Deputy Mayor.
(2) Subsections
(2) to (7) of section 26 apply to the election of a
Deputy Mayor as if any reference in those subsections
to the Mayor was a reference to the Deputy Mayor. Part
3—Council decision making Division 2—Procedure and proceeding (1) A Council meeting is a meeting of the Council at which— (a) all the Councillors are, subject to this Act, entitled to attend and vote; and (b) no other person is entitled to vote; and (c) a decision to do an act, matter or thing is made by a resolution of the Council. (2) Except as provided in this Act and subject to the Governance Rules, the conduct of Council meetings is in the Council's discretion. (3) A quorum at a Council meeting is an absolute majority. (4) A question before a Council meeting is to be determined as follows— (a) each Councillor present at a Council meeting who is entitled to vote is entitled to one vote; (b) voting at a meeting must not be in secret, but if the meeting is closed to the public, a Councillor is not required to divulge their vote to the public; (c) the question is determined in the affirmative by a majority of the Councillors present at a meeting at the time the vote is taken voting in favour of the question; (d) subject
to subsection (5), if the number of votes in favour
of the question is half the number of Councillors
present at the meeting at the time the vote is
taken, the Mayor has a second vote; (e) for
the purpose of determining the result of a vote, a
Councillor attending the meeting who does not vote
is to be taken to have voted against the question. (5) Subsection (4)(d) does not apply where the question is— (a) a vote to declare the office of Mayor vacant; or (b) the election of a Mayor or a Deputy Mayor. (6) In this section, absolute majority means the number of Councillors which is greater than half the total number of the Councillors of a Council. (1) Two or more Councils may determine to hold a joint meeting. (2) A joint meeting is a meeting of each Council for the purposes of this Act. (3) A joint meeting is to be constituted by the Councillors and the number of Councillors determined by the Councils holding the joint meeting. (4) Subject to subsection (5), section 59 applies to a joint meeting as if it were a Council meeting but the Chairperson of the meeting does not have a second vote. (5) A joint meeting must comply with any requirements prescribed by the regulations. Part 9—Electoral provisionsDivision 4—Holding of
general elections and by‑elections (1) An extraordinary vacancy occurs if the office of a Councillor becomes vacant under section 31 or 33(1). (2) If the office of a Councillor becomes vacant as a result of the resignation of a Councillor, an extraordinary vacancy occurs on the day that the written resignation is delivered to the Chief Executive Officer. (3) If an extraordinary vacancy is caused by the ouster of a Councillor from office by the Supreme Court, the extraordinary vacancy occurs on the following days— (a) if notice of appeal to the Court of Appeal is not served within the period allowed, on the day after that period; (b) if an appeal to the Court of Appeal is dismissed, on the day the decision is given. (4) If an extraordinary vacancy is caused by the declaration of VCAT, the extraordinary vacancy occurs on the day the declaration is made. (5) Subsection (4) applies in respect of a general election and for that purpose all the extraordinary vacancies are deemed to have occurred on the same day as determined in accordance with that subsection. (6) Despite subsection (7), if more than one extraordinary vacancy in a ward is caused by the declaration of VCAT, an election must be held to fill all the extraordinary vacancies at the same time. (7) If more than 1 extraordinary vacancy occurs in respect of the same ward and an election is required to be held to fill the vacancies on the same day, one election must be held to fill all the extraordinary vacancies at the same time. (8) The Chief Executive Officer must within 3 working days of— (a) receiving a written resignation from a Councillor; or (b) becoming aware of an extraordinary vacancy—
notify the Minister and the VEC that an extraordinary
vacancy has occurred. Division 5—Conduct of
elections A person who is entitled to vote at an election of a Councillor is only entitled to 1 vote in respect of each municipal district for which the person is enrolled. 283 Marking of ballot-paper at election to express preference (1) A voter must mark the voter's vote on the ballot‑paper by placing— (a) the number 1 opposite the name of the candidate for whom the voter votes as first preference; and (b) the numbers 2, 3, 4 (and so on as the case requires) opposite the remaining candidates' names so as to indicate the order of preference by an unbroken numerical sequence. (2) In the case of 2 candidates, the requirements of subsection (1) are sufficiently complied with if the ballot-paper is marked with the number 1 opposite the name of one candidate to indicate the voter's first preference. (3) In the case of an election where there are more than 2 candidates, the requirements of subsection (1) are sufficiently complied with if the ballot-paper is marked with a number 1, 2, 3 or 4 (and so on as the case requires) opposite the names of all the candidates on the ballot-paper except one. Division 6—Counting of
votes—single vacancy If only 1 Councillor is to be elected and there are more than 2 candidates the result is to be determined as follows— (a) the candidate who has received the greatest number of first preference votes if that number constitutes an absolute majority of votes is to be declared elected by the election manager; (b) absolute majority of votes means a number of votes greater than one-half of the total number of ballot-papers (excluding ballot‑papers which are rejected) and if necessary includes the vote by lot; (c) if no candidate has received an absolute majority of votes, the election manager upon receipt of the several sealed parcels from any authorised person and with the assistance of any authorised persons and in the presence and subject to the inspection of any 1 scrutineer, if present, appointed by each candidate but of no other person, must— (i) open all the sealed parcels containing used ballot-papers; and (ii) arrange such ballot-papers together with the allowed postal ballot-papers, if any, by placing in a separate parcel all those on which a first preference is indicated for the same candidate and preference votes are also duly given for all the remaining candidates, omitting ballot-papers which are rejected; and (iii) declare the candidate who has received the fewest first preference votes a defeated candidate; and (iv) distribute the ballot-papers counted to the defeated candidate amongst the non-defeated candidates next in order of the voters' preference; and (v) after the distribution again ascertain the total number of votes given to each non-defeated candidate; (d) the candidate who has then received the greatest number of votes if that number constitutes an absolute majority of votes is to be declared elected by the election manager; (e) if no candidate then has an absolute majority of votes the process of declaring the candidate who has the fewest votes a defeated candidate and distributing the ballot-papers counted to the defeated candidate amongst the non-defeated candidates next in order of the voters' preference is to be repeated until 1 candidate has received an absolute majority of votes and is declared elected by the election manager; (f) if on any count 2 or more candidates have an equal number of votes and 1 of them has to be declared a defeated candidate, the result is to be determined— (i) by declaring whichever of those candidates had the fewest votes at the last count at which those candidates had a different number of votes to be defeated; or (ii) if a result is still not obtained or there has been no count, by lot by the election manager; (g) if on the final count 2 candidates have an equal number of votes, the result is to be determined by lot by the election manager. Division 7—Counting of
votes—any election to which Division 6 does
not apply This Division applies to any election to which Division 6 does not apply. 289 2 or more Councillors to be elected (1) The result of the election is to be determined as set out in this section. (2) In this section— continuing candidate means a candidate not already elected or excluded from the count; quota means the number determined by dividing the number of first preference votes by 1 more than the number of candidates required to be elected and by increasing the quotient so obtained (disregarding any remainder) by 1; surplus votes means the number, if any, of votes in excess of the quota of each elected candidate. (3) A reference to votes of or obtained or received by a candidate includes votes obtained or received by the candidate on any transfer. (4) The election manager upon receipt of the several sealed parcels from any authorised person and with the assistance of any authorised persons and in the presence and subject to the inspection of any 1 scrutineer, if present, appointed by each candidate but of no other person must— (a) open all the sealed parcels containing used ballot-papers; and (b) arrange the ballot-papers together with the allowed postal ballot-papers, if any, by placing in a separate parcel all those on which a first preference is indicated for the same candidate and preference votes are also duly given for all the remaining candidates, omitting ballot-papers which are rejected; and (c) ascertain— (i) the number of first preference votes given for each candidate; and (ii) the total number of first preference votes. (5) A quota is to be determined. (6) Any candidate who has received a number of first preference votes equal to or greater than the quota is to be declared duly elected by the election manager. (7) Unless all the vacancies have been filled, the surplus votes of each elected candidate are to be transferred to the continuing candidates as follows— (a) the number of surplus votes of the elected candidate is to be divided by the number of first preference votes received by the elected candidate and the resulting fraction is the transfer value; (b) the total number of ballot-papers of the elected candidate that express the first preference vote for the elected candidate and the next available preference for a particular continuing candidate is to be multiplied by the transfer value; (c) the number obtained under paragraph (b) (disregarding any fraction) is to be added to the number of first preference votes of the continuing candidate and all those ballot‑papers are to be transferred to the continuing candidate. (8) Any continuing candidate who has received a number of votes equal to or greater than the quota on the completion of any transfer under subsection (7) is to be declared duly elected by the election manager. (9) Unless all the vacancies have been filled, the surplus votes, if any, of any candidate elected under subsection (8) or elected subsequently under this subsection are to be transferred to the continuing candidates in accordance with subsection (7) and any continuing candidate who has received a number of votes equal to or greater than the quota on the completion of the transfer is to be declared duly elected by the election manager. (10) If a continuing candidate has received a number of votes equal to or greater than the quota on the completion of a transfer of the surplus votes of a particular elected candidate under subsection (7) or (9), no votes of any other candidate are to be transferred to the continuing candidate. (11) For the purposes of the application of subsection (7) in relation to a transfer of the surplus votes of an elected candidate under subsection (9) or (14), each ballot-paper of the elected candidate obtained by the elected candidate on a transfer is to be dealt with as if— (a) any vote it expressed for the elected candidate were a first preference vote; and (b) the name of any other candidate previously elected or excluded had not been on the ballot-paper; and (c) the numbers indicating subsequent preferences had been altered accordingly. (12) If, after the counting of first preference votes or the transfer of any surplus votes of elected candidates, no candidate has, or less than the number of candidates required to be elected have, received a number of votes equal to the quota, the candidate who has the fewest votes is to be excluded and all that candidate's votes are to be transferred to the continuing candidates as follows— (a) the total number of ballot-papers of the excluded candidate that express the first preference vote for the excluded candidate and the next available preference for a particular continuing candidate are to be transferred at a transfer value of 1 for each ballot-paper and added to the number of votes of the continuing candidate and all those ballot-papers are to be transferred to the continuing candidate; (b) the total number, if any, of other votes obtained by the excluded candidate on transfers are to be transferred from the excluded candidate beginning with the highest transfer value and ending with the ballot papers received at the lowest transfer value, as follows— (i) 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 candidate is to be multiplied by that transfer value; (ii) the number so obtained (disregarding any fraction) is to be added to the number of votes of the continuing candidate; (iii) all those ballot papers are to be transferred to the continuing candidate. (13) Any continuing candidate who has received a number of votes equal to or greater than the quota on the completion of a transfer of votes of an excluded candidate under subsection (12) or (16) is to be declared duly elected by the election manager. (14) Subject to subsection (15), unless all the vacancies have been filled, the surplus votes, if any, of a candidate elected under subsection (13) are to be transferred in accordance with subsection (7).
(15) If
a candidate elected under subsection (13) is elected
before all the votes of the excluded candidate have
been transferred, the surplus votes, if any, of
the elected candidate are not (16) Subject to subsection (18), if after the transfer of all the votes of an excluded candidate no continuing candidate has received a number of votes greater than the quota— (a) the continuing candidate who has the fewest votes must be excluded; and (b) that candidate's votes must be transferred in accordance with subsection (12). (17) If a candidate is elected as a result of a transfer of ballot papers under subsections (12) and (16), no other ballot papers of an excluded candidate are to be transferred to the candidate so elected. (18) In respect of the last vacancy for which 2 continuing candidates remain, the continuing candidate who has the larger number of votes is to be elected notwithstanding that that number is below the quota. (19) Despite any other provision of this section, if the number of continuing candidates is equal to the number of remaining unfilled vacancies, those candidates are to be declared duly elected by the election manager. (20) Subject to subsections (21), (22) and (23), if after any count or transfer, 2 or more candidates have surplus votes, the order of any transfers of the surplus votes of those candidates is to be in accordance with the relative size of the surpluses, the largest surplus being transferred first. (21) Subject to subsection (23), if after any count or transfer, 2 or more candidates have equal surpluses, the order of any transfers of the surplus votes of those candidates is to be in accordance with the relative numbers of votes of those candidates at the last count or transfer at which each of those candidates had a different number of votes, the surplus of the candidate with the largest number of votes at that count or transfer being transferred first. (22) For the purposes of subsection (21), if there has been no count or transfer the election manager must determine the order in which the surpluses are to be dealt with. (23) If after any count or transfer, a candidate obtains surplus votes, those surplus votes are not to be transferred before the transfer of any surplus votes obtained by any other candidate on an earlier count or transfer. (24) If on any count or transfer 2 or more candidates have the fewest number of votes and the candidate who has the fewest number of votes is required to be excluded, the result is to be determined— (a) by declaring whichever of those candidates had the fewest votes at the last count at which those candidates had a different number of votes to be excluded; or (b) if a result is still not obtained or there has been no count or transfer, by lot by the election manager. (25) If on the final count or transfer 2 candidates have an equal number of votes, the result is to be determined by lot by the election manager. (26) If a candidate is elected by reason that— (a) the number of first preference votes received by the candidate; or (b) the aggregate of first preference votes received by the candidate and all other votes obtained by the candidate on transfers— is equal to the quota, all the ballot-papers expressing those votes are to be set aside as finally dealt with. (27) For the purposes of this section each of the following constitutes a separate transfer— (a) a transfer under subsection (7), (9) or (14) of all the surplus votes of an elected candidate; (b) a transfer in accordance with subsection (12)(a) of all first preference votes of an excluded candidate; (c) a transfer in accordance with subsection (12)(b) of all the votes of an excluded candidate or candidates, as the case may be, at a particular transfer value. Division 8—Countback
process and counting of votes 299 Process for counting of votes at a countback (1) This section sets out the process for the counting of votes at a countback. (2) All the votes counted in the original election are to be counted in accordance with the process specified in Division 7. (3) The quota for election in the countback is the same quota as that which applied to the count of votes in the original election. (4) The following preferences indicated on ballot‑papers are to be disregarded during the countback— (a) preferences indicated for the vacating Councillor; (b) preferences indicated for a candidate excluded under section 291. (5) A countback under this section does not affect the election of a previously elected candidate. (6) The election or exclusion of a previously elected candidate during the countback has effect only for the purpose of the continuation of the count. (7) The countback stops as soon as a candidate who was not previously elected obtains a quota. (8) If a candidate who was not previously elected obtains a quota, the election manager must invite the candidate to complete a written declaration that the candidate is still eligible to be a Councillor within 48 hours of being invited to do so. Part
11—Consequential amendments and repeals Division 1—Repeal of
City of Greater Geelong Act 1993 343 Repeal of City of Greater Geelong Act 1993 The City of Greater Geelong Act 1993 is repealed. Division 2—Amendment of
City of Melbourne Act 2001 347 Amendment of section 6—Constitution of the Council For section 6(1)(c) of the City of Melbourne Act 2001 substitute— "(c) 9 Councillors.". 348 Amendment of section 6A—Constitution of Council may be altered (1) In section 6A(1) of the City of Melbourne Act 2001, for "section 220Q of the Local Government Act 1989" substitute "section 14 of the Local Government Act 2018". (2) In section 6A(2) ) of the City of Melbourne Act 2001, after "provision of this Act" insert "and the Local Government Act 2018". (3) After section 6A(3) of the City of Melbourne Act 2001 insert— "(4) An Order in Council referred to in subsection (1) applies to all the Councillors of the Council other than the Lord Mayor and the Deputy Lord Mayor.". 351 Amendment of section 9D—Procedure in relation to representatives of corporations (1) For sections 9D(2) and (3) of the City of Melbourne Act 2001 substitute— "(2) If the corporation has validly appointed 1 representative, the Chief Executive Officer must enrol as a representative of the corporation the next available person determined in accordance with subsection (3). (3) If the corporation has not validly appointed any representatives, the Chief Executive Officer must enrol as representatives of the corporation the first 2 of the following— (a) company secretaries whose postal addresses are in Victoria (in alphabetical order); (b) company secretaries whose postal addresses are elsewhere in Australia (in alphabetical order); (c) directors whose postal addresses are in Victoria (in alphabetical order); (d) directors whose postal addresses are elsewhere in Australia (in alphabetical order); (e) company secretaries whose postal addresses are outside Australia (in alphabetical order); (f) directors whose postal addresses are outside Australia (in alphabetical order).". (2) In section 9D(5) of the City of Melbourne Act 2001— (a) omit "that is available after the exhibition roll date"; (b) after "Commission" insert "or other appropriate public body". 356 Amendment of section 12—General elections In section 12 of the City of
Melbourne 358 Amendment of section 15—Joint nominations for Lord Mayor and Deputy Lord Mayor In section 15(4) and (5) of the City of Melbourne Act 2001, for "returning officer" (wherever occurring) substitute "election manager". 359 Section 18 substituted—How votes to be counted For section 18 of the City of Melbourne Act 2001 substitute— '18 How votes to be counted (1) Division 6 of Part 9 of the Local Government Act 2018 applies to the election of the Lord Mayor and the Deputy Lord Mayor— (a) as if each pair of candidates standing jointly for the positions was a single candidate; and
(b) as
if there were no reference to (2) If the election of Councillors was conducted in accordance with Schedule 1 to this Act and the application of Division 7 of Part 9 of the Local Government Act 2018 does not result in the filling of all the vacancies in the offices of Councillors (other than the Lord Mayor or Deputy Lord Mayor)— (a) in the case of a single vacancy to be filled, Division 6 of Part 9 of the Local Government Act 2018 applies to the by-election to fill the vacancy and Schedule 1 does not apply; or (b) if there is more than one vacancy to be filled, Schedule 1 also applies to the by‑election to fill the vacancies.'. 363 Section 24 amended—Filling of vacancies
(1) In
section 24(1) of the City of
Melbourne Act 2001, for "on a Saturday to
be appointed by the Minister under section 38 of
the Local Government
Act 1989" substitute
"section 279 of the Local Government
(2) For section 24(3)(c) of the City of Melbourne Act 2001 substitute— "(c) if the Council does so, an extraordinary vacancy occurs in the office of the Councillor on the date of the appointment and section 278 of the Local Government Act 2018 does apply.". See www.legislation.vic.gov.au for Victorian
Bills, Acts and current authorised versions of
legislation and up-to-date legislative information.
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