Local Government Legislation Amendment (Miscellaneous) Act 2012
Authorised by the Chief Parliamentary Counsel
Authorised Version
i
Local Government Legislation Amendment
(Miscellaneous) Act 2012
No. 63 of 2012
TABLE OF PROVISIONS
Section Page
PART 1—PRELIMINARY 1
1 Purposes 1
2 Commencement 2
PART 2—AMENDMENTS TO THE LOCAL GOVERNMENT
ACT 1989 4
3 Definitions 4
4 Occupier ratepayers may apply to be enrolled 5
5 Disqualifications 5
6 Distribution of printed electoral material 5
7 Repeal of section 57—False or defamatory statements 5
8 Injunction 6
9 Responsibilities of Chief Executive Officer 6
10 Definitions 7
11 Disclosure of conflict of interest 7
12 Certain situations where Councillor taken to not have a
conflict of interest 7
13 Consequential amendment to section 80B 8
14 Call of the Council 9
15 Repeal of section 86(7)—Special committees of the Council 9
16 Voting 9
17 Repeal of section 101(2)—Long service leave 9
18 New Division 4 inserted into Part 4—Complaints 10
Division 4—Complaints 10
103 Purpose of this Division 10
104 Definitions 10
105 Chief Executive Officer must advise of complaint 12
106 Request to appoint a probity auditor 12
107 Secretary may appoint a probity auditor 12
108 Duties and powers of probity auditor 13
109 Report by probity auditor 14
110 Provisions applying to probity auditor 14
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19 Public notice 15
20 Audit committee 15
21 Differential rates 15
22 Council may charge interest on unpaid rates and charges 17
23 Review of differential rating by VCAT 17
24 Regional libraries 17
25 Library Plan 17
26 New section inserted 18
197E Attendance at meetings of the governing body of a
regional library 18
27 Dissolution of Councillor Conduct Panel 18
28 Power to remove unregistered or abandoned vehicles 19
PART 3—AMENDMENTS TO THE CITY OF MELBOURNE
ACT 2001 20
29 Entitlements 20
30 Compulsory voting 20
PART 4—AMENDMENTS TO THE VICTORIAN CIVIL
AND ADMINISTRATIVE TRIBUNAL ACT 1998 22
31 Constitution of Tribunal 22
32 Clause 46F of Schedule 1 substituted 22
46F Costs 22
PART 5—REPEAL OF AMENDING ACT 23
33 Repeal of amending Act 23
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ENDNOTES 24
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Authorised by the Chief Parliamentary Counsel
Authorised Version
1
Local Government Legislation
Amendment (Miscellaneous) Act 2012 †
No. 63 of 2012
[Assented to 30 October 2012]
The Parliament of Victoria enacts:
PART 1—PRELIMINARY
1 Purposes
The purposes of this Act are—
(a) to amend the Local Government Act
1989—
(i) to further provide for public reporting
of election campaign donations; and
Victoria
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Part 1—Preliminary
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No. 63 of 2012
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(ii) to clarify procedures for Councillors
and members of special committees to
disclose conflicts of interest; and
(iii) to amend voting procedures for
Councillors and members of special
committees; and
(iv) to provide for the appointment of a
probity auditor in relation to the
handling by a Council of a complaint
relating to the conduct of the Chief
Executive Officer; and
(v) to amend the powers of Councils to
declare differential rates and to require
the consideration of Ministerial
guidelines; and
(vi) to amend the method by which interest
is charged on unpaid rates and charges;
and
(vii) to make further amendments to clarify
the operation of that Act; and
(b) to make minor amendments to the City of
Melbourne Act 2001 relating to the
electoral provisions; and
(c) to amend the Victorian Civil and
Administrative Tribunal Act 1998 to more
clearly set out obligations to bear costs in
certain proceedings and to make other
amendments.
2 Commencement
(1) This Act (except sections 20, 22 and 23) comes
into operation on the day after the day on which
this Act receives the Royal Assent.
(2) Subject to subsection (3), sections 20, 22 and 23
come into operation on a day or days to be
proclaimed.
s. 2
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No. 63 of 2012
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(3) If a provision referred to in subsection (2) does
not come into operation before 1 July 2013, it
comes into operation on that day.
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s. 2
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Part 2—Amendments to the Local Government Act 1989
Local Government Legislation Amendment (Miscellaneous) Act 2012
No. 63 of 2012
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PART 2—AMENDMENTS TO THE LOCAL GOVERNMENT
ACT 1989
3 Definitions
(1) In section 3(1) of the Local Government Act
1989 insert the following definitions—
"assembly of Councillors (however titled) means
a meeting of an advisory committee of the
Council, if at least one Councillor is present,
or a planned or scheduled meeting of at least
half of the Councillors and one member of
Council staff which considers matters that
are intended or likely to be—
(a) the subject of a decision of the Council;
or
(b) subject to the exercise of a function,
duty or power of the Council that has
been delegated to a person or
committee—
but does not include a meeting of the
Council, a special committee of the Council,
an audit committee established under
section 139, a club, association, peak body,
political party or other organisation;
special committee means—
(a) a committee established by a Council
under section 86;
(b) a committee that exercises a power, or
performs a duty or function, of the
Council that has been delegated to that
committee under any Act;".
s. 3
See:
Act No.
11/1989.
Reprint No. 11
as at
1 January
2012
and
amending
Act Nos
65/2010 and
20/2012.
LawToday:
www.
legislation.
vic.gov.au
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(2) After section 3(5) of the Local Government Act
1989 insert—
"(6) For the purposes of subsection (5),
resolution of the Council means—
(a) a resolution made at an ordinary
meeting or special meeting;
(b) a resolution made at a meeting of a
special committee;
(c) the exercise of a power, duty or
function delegated to a member of
Council staff under section 98—
but does not include any business transacted
at an assembly of Councillors.".
4 Occupier ratepayers may apply to be enrolled
In section 15(3) of the Local Government Act
1989, after "that rateable property" insert "only".
5 Disqualifications
In section 29(2)(ab) of the Local Government
Act 1989 omit "57,".
6 Distribution of printed electoral material
After section 56(4) of the Local Government Act
1989 insert—
"(5) Subsection (1) does not apply to the
distribution or otherwise making available of
any printed electoral material during the
hours of voting to any property within
400 metres of the entrance of a voting centre
that is an early voting centre.".
7 Repeal of section 57—False or defamatory
statements
Section 57 of the Local Government Act 1989 is
repealed.
s. 4
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8 Injunction
In section 57A(1) of the Local Government Act
1989, for "55, 55A or 57" substitute "55 or 55A".
9 Responsibilities of Chief Executive Officer
After section 62A(1) of the Local Government
Act 1989 insert—
"(2) The Chief Executive Officer must ensure
that, within 14 days after the period specified
in section 62(1), a summary of each election
campaign donation return given to the Chief
Executive Officer under section 62 is made
available on the Internet website of the
Council.
(2A) If an election campaign donation return is
given after the period specified in
section 62(1), the Chief Executive Officer
must ensure that a summary of the return is
made available on the Internet website of the
Council.
(2B) A summary of an election campaign
donation return must include the following
information in respect of the candidate who
gave the election campaign donation
return—
(a) the name of the candidate;
(b) if a gift is included in the return, the
name of the person who made the gift
and the total value of the gift received
from that person.
(2C) The Chief Executive Officer must ensure
that a summary of an election campaign
donation return is made available on the
Internet website of the Council until the
entitlement date for the next general
election.".
s. 8
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10 Definitions
In section 76AA of the Local Government Act
1989, the definition of assembly of Councillors is
repealed.
11 Disclosure of conflict of interest
After section 79(2) of the Local Government Act
1989 insert—
"(3) For the purposes of section 79(2)(a)(i), if a
Councillor or member of a special committee
has a conflict of interest in two or more
matters which are to be considered or
discussed consecutively at a meeting of the
Council or the special committee, the
Councillor or member may make a full
disclosure of each of those interests
immediately before the first matter is
considered at the meeting.".
12 Certain situations where Councillor taken to not
have a conflict of interest
(1) For section 79C(1)(d) of the Local Government
Act 1989 substitute—
"(d) the adoption of a policy under section 75B in
relation to the reimbursement of expenses;".
(2) For section 79C(2)(a) of the Local Government
Act 1989 substitute—
"(a) the Council previously approved the matter
and the proposed funding for the matter for
inclusion in the budget or revised budget;
and".
(3) For section 79C(2)(b) of the Local Government
Act 1989 substitute—
"(b) the Councillor disclosed the nature of the
conflict of interest under section 79 when the
decision in respect of the matter and the
s. 10
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proposed funding for the matter was
previously considered and made.".
(4) After section 79C(2) of the Local Government
Act 1989 insert—
"(3) If a Council Plan to be approved by a
Council includes a matter in respect of which
a Councillor has a conflict of interest, the
Councillor is taken to not have a conflict of
interest for the purposes of approving the
Council Plan if—
(a) the Council previously approved the
matter for inclusion in the Council
Plan; and
(b) the Councillor disclosed the nature of
the conflict of interest under section 79
when the decision in respect of the
matter was previously considered and
made.
(4) If a Councillor with a conflict of interest
referred to in subsection (2) or (3) notifies
the Mayor or Chairperson prior to the
consideration of the budget, revised budget
or Council Plan of the conflict of interest, the
Mayor or Chairperson must allow a prior
motion to be put that the matter or funding
be considered for inclusion in the budget,
revised budget or Council Plan.".
13 Consequential amendment to section 80B
In section 80B(3) of the Local Government Act
1989—
(a) at the end of paragraph (c) for "staff."
substitute "staff;";
(b) after paragraph (c) insert—
"(d) a decision to request the appointment of
a probity auditor under Division 4.".
s. 13
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14 Call of the Council
In section 85(6) of the Local Government Act
1989—
(a) for "continuing to be" substitute
"remaining";
(b) for "remaining" substitute "continuing to
be".
15 Repeal of section 86(7)—Special committees of the
Council
Section 86(7) of the Local Government Act 1989
is repealed.
16 Voting
(1) Section 90(1)(b) of the Local Government Act
1989 is repealed.
(2) For section 90(1)(d) of the Local Government
Act 1989 substitute—
"(d) the question is determined in the affirmative
by a majority of the Councillors or members
of the special committee present at a meeting
at the time the vote is taken voting in favour
of the question;".
(3) For section 90(1)(e) of the Local Government
Act 1989 substitute—
"(e) except where subsection (2) applies, if the
number of votes in favour of the question is
half the number of Councillors or members
of the special committee present at the
meeting at the time the vote is taken, the
Chairperson has a second vote.".
17 Repeal of section 101(2)—Long service leave
Section 101(2) of the Local Government Act
1989 is repealed.
s. 14
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18 New Division 4 inserted into Part 4—Complaints
After section 102 of the Local Government Act
1989 insert—
"Division 4—Complaints
103 Purpose of this Division
The purpose of this Division is to ensure
proper oversight of processes used by a
Council in dealing with a complaint about
the conduct of the Chief Executive Officer.
104 Definitions
In this Division—
complaint means—
(a) a written complaint by the
complainant to the Council about
the conduct of the Chief Executive
Officer; or
(b) a written complaint by the
complainant about the conduct of
the Chief Executive Officer to a
person or body authorised under
any Act to consider conduct of
that kind; or
(c) an application to a court or
tribunal by the complainant to
initiate any proceedings in respect
of the conduct of the Chief
Executive Officer—
but does not include a written
complaint that is frivolous or vexatious;
complainant means a person referred to in
paragraph (a), (b) or (c) of the
definition of conduct;
s. 18
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conduct means any action or behaviour of
the Chief Executive Officer of a
Council involving bullying,
victimisation or harassment, including
sexual harassment, of—
(a) a Councillor of that Council; or
(b) a member of Council staff of that
Council; or
(c) any other person in the course of
the Chief Executive Officer
performing his or her role as the
Chief Executive Officer of that
Council;
probity means the integrity of processes used
by the Council in dealing with a
complaint, including processes to
ensure that so far as it is reasonably
practicable and within the responsibility
of the Council—
(a) any relevant statutory procedures
have been complied with;
(b) any order made by a court or
tribunal in any proceedings
relating to the complaint has been
given effect to;
(c) natural justice has been afforded;
(d) the privacy of personal
information has been protected;
(e) confidentiality under section 77
has been maintained;
probity auditor means a person appointed by
the Secretary under section 107.
s. 18
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105 Chief Executive Officer must advise of
complaint
If the Chief Executive Officer becomes
aware of a complaint, the Chief Executive
Officer must—
(a) immediately advise the Mayor about
the complaint; and
(b) at the next meeting of the Council,
advise the Council about the complaint
when the meeting is closed to members
of the public.
106 Request to appoint a probity auditor
(1) The Chief Executive Officer may, at any
time after complying with section 105(a),
request the Secretary to appoint a probity
auditor in relation to the complaint.
(2) If the Chief Executive Officer makes a
request under subsection (1), the Chief
Executive Officer must immediately advise
the Mayor that he or she has done so.
(3) If the Mayor has not received any advice
under subsection (2), the Mayor may request
the Secretary to appoint a probity auditor in
relation to the complaint.
107 Secretary may appoint a probity auditor
(1) If after receiving a request under section 106
in relation to a complaint, the Secretary
considers that the appointment of a probity
auditor could assist in ensuring probity in
dealing with the complaint, the Secretary
may appoint a person whom the Secretary
considers has suitable qualifications to be a
probity auditor in relation to that complaint.
s. 18
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(2) If the Secretary appoints a probity auditor,
the Secretary must immediately advise the
Mayor and the Chief Executive Officer about
the appointment.
(3) If the Chief Executive Officer is advised that
a probity auditor has been appointed, the
Chief Executive Officer must, at the next
meeting of the Council, advise the Council
about the appointment when the meeting is
closed to members of the public.
108 Duties and powers of probity auditor
(1) The primary duty of a probity auditor is to
assist the Council to ensure probity in
dealing with the complaint and to provide a
written report in accordance with section 109
when the probity audit is concluded.
(2) The probity auditor may provide the Council
with advice on probity matters in dealing
with the complaint if the probity auditor
considers that the advice could assist the
Council.
(3) The probity auditor may require a Councillor
or a member of Council staff to produce a
document, provide information or give
reasonable assistance if the probity auditor
considers that it will assist the probity
auditor to perform his or her duties.
(4) If a Councillor or a member of Council staff
unreasonably refuses to comply with a
requirement under subsection (3), the probity
auditor must report the failure to the Council,
the Mayor, the Chief Executive Officer and
the Secretary.
s. 18
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109 Report by probity auditor
(1) After the conclusion of the probity audit, the
probity auditor must prepare a written
report—
(a) describing the processes used by the
Council in dealing with the complaint;
(b) containing a summary of the activities
undertaken by the probity auditor in the
course of conducting the probity audit;
(c) including a statement of opinion by the
probity auditor as to whether or not the
Council has observed due probity in
dealing with the complaint.
(2) The probity auditor may specify that all or
part of the probity report is, and must
continue to be, confidential information for
the purposes of section 77 as if—
(a) it had been designated as confidential
information in accordance with
section 77(2)(c); and
(b) section 77(2) and (3) did not otherwise
apply.
(3) The probity auditor must provide a copy of
the report to the Council, the Mayor, the
Chief Executive Officer and the Secretary.
110 Provisions applying to probity auditor
(1) A probity auditor is not, in respect of his or
her office as a probity auditor, subject to the
Public Administration Act 2004.
(2) A probity auditor is entitled to be paid by the
Council the amounts, and on the terms, fixed
by the Secretary.
s. 18
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(3) A probity auditor is not personally liable for
anything done or omitted to be done in good
faith—
(a) in the performance of a duty or the
exercise of a power under this Division;
or
(b) in the reasonable belief that the act or
omission was in the performance of a
duty or the exercise of a power under
this Division.
(4) Any liability resulting from an act or
omission that would, but for subsection (3),
attach to a probity auditor attaches instead to
the Council.".
19 Public notice
In section 129(3)(b) of the Local Government
Act 1989, for "14 days" substitute "28 days".
20 Audit committee
In section 139(4A) of the Local Government Act
1989, for "76D and 79" substitute "76D, 79
and 81".
21 Differential rates
(1) For section 161(1) of the Local Government Act
1989 substitute—
"(1) A Council may raise any general rates by the
application of a differential rate if it uses the
capital improved value system of valuing
land.".
(2) In section 161(2)(a) of the Local Government
Act 1989 omit "must be consistent with the
equitable and efficient carrying out of the
Council's functions and".
s. 19
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(3) After section 161(2) of the Local Government
Act 1989 insert—
"(2A) A Council must have regard to any
Ministerial guidelines made under subsection
(2B) before declaring a differential rate for
any land.
(2B) The Minister may, by notice published in the
Government Gazette, make guidelines for or
with respect to—
(a) the objectives of differential rating;
(b) suitable uses of differential rating
powers;
(c) the types or classes of land that are
appropriate for differential rating.".
(4) In section 161(3) of the Local Government Act
1989, after "are available" insert "on its Internet
website and".
(5) Before section 161(3)(b) of the Local
Government Act 1989 insert—
"(a) the definition of the types or classes of land
which are subject to the rate;".
(6) In section 161(3)(b) of the Local Government
Act 1989 omit "and the criteria on the basis of
which that rate was declared".
(7) In section 161(3)(c) of the Local Government
Act 1989, for "to land in each category of
differential rating" substitute "to each type or
class of land".
(8) After section 161(3) of the Local Government
Act 1989 insert—
"(4) On the recommendation of the Minister, the
Governor in Council may by Order in
Council prohibit any Council from making a
declaration of a differential rate in respect of
s. 21
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Authorised by the Chief Parliamentary Counsel
a type or class of land, if the Minister
considers that the declaration would be
inconsistent with any guidelines made under
subsection (2B).".
22 Council may charge interest on unpaid rates and
charges
For section 172(2)(b)(iii) of the Local
Government Act 1989 substitute—
"(iii) if the payment was payable either in
instalments or in a lump sum, and neither the
first instalment nor the lump sum were paid
by the dates the first instalment or the lump
sum were due, on and from the date on
which each missed instalment was due; and".
23 Review of differential rating by VCAT
For section 183(2) of the Local Government Act
1989 substitute—
"(2) An application for review must be made
within 60 days after the day on which the
owner or occupier receives the first notice
under section 158(3) following the
decision.".
24 Regional libraries
In section 196(7)(b) of the Local Government
Act 1989, for "section 84" substitute "sections 84
and 89".
25 Library Plan
For section 197D(c) of the Local Government
Act 1989 substitute—
'(c) for subsection (1) there were substituted—
"(1) A regional library must prepare and
approve a Library Plan within 6 months
after the date the regional library
becomes a body corporate and by
s. 22
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30 June following a general election
conducted under section 31(1).".'.
26 New section inserted
After section 197D of the Local Government Act
1989 insert—
"197E Attendance at meetings of the governing
body of a regional library
(1) A member of the governing body of a
regional library may participate in a meeting
of the governing body by electronic means of
communication, if permitted under a local
law made by the regional library which
complies with subsection (2).
(2) A local law made for the purposes of
subsection (1) must—
(a) specify how many members must
attend the meeting in person; and
(b) provide for the application of section 79
to the meeting with any necessary
modifications.".
27 Dissolution of Councillor Conduct Panel
(1) For clause 12(1)(b) of Schedule 5 to the Local
Government Act 1989 substitute—
"(b) where the Panel gives notice of the Panel's
decision—
(i) 28 days after the Panel has given a
statement of reasons under section 81M
to the persons specified in
section 81M(3); or
(ii) if an application for review of the
decision is made under section 81Q, the
conclusion of that review by VCAT;".
s. 26
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(2) In clause 12(1)(c) of Schedule 5 to the Local
Government Act 1989, after "VCAT" insert
"under section 81D".
28 Power to remove unregistered or abandoned
vehicles
(1) In clause 3(1)(d) of Schedule 11 to the Local
Government Act 1989, for "7 days" substitute
"14 days".
(2) After clause 3(1) of Schedule 11 to the Local
Government Act 1989 insert—
"(1A) Before exercising the power conferred by
subclause (1)(d), the Council must take
reasonable steps to notify the owner of the
vehicle that the vehicle has been impounded
and may be sold, destroyed or given away
unless the specified fee is paid within
14 days.".
(3) After clause 3(3) of Schedule 11 to the Local
Government Act 1989 insert—
"(4) For the purposes of subclause (1), a Council
may consider that a vehicle has been
abandoned if the vehicle has not been moved
for 2 months.".
__________________
s. 28
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Part 3—Amendments to the City of Melbourne Act 2001
Local Government Legislation Amendment (Miscellaneous) Act 2012
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PART 3—AMENDMENTS TO THE CITY OF MELBOURNE
ACT 2001
29 Entitlements
In section 9(1)(c) of the City of Melbourne Act
2001, for "appointment" substitute "enrolment".
30 Compulsory voting
For section 19(6) of the City of Melbourne Act
2001 substitute—
"(6) In this section—
infringement means an offence against this
section;
prescribed penalty means the penalty
prescribed for the purposes of this
section;
prosecution officer means the Chief
Executive Officer or a person appointed
by the Chief Executive Officer for the
purposes of this section.
(7) A prosecution officer may serve or cause to
be served an infringement notice on any
person or corporation if the prosecution
officer has reason to believe that the person
s. 29
See:
Act No.
5/2001.
Reprint No. 1
as at
1 July 2007
and
amending
Act Nos
35/2008,
67/2008,
64/2009,
58/2010,
65/2010,
29/2011,
44/2011,
74/2011 and
11/2012.
LawToday:
www.
legislation.
vic.gov.au
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or corporation has committed an
infringement.
(8) An offence referred to in subsection (7) for
which an infringement notice may be served
is an infringement offence within the
meaning of the Infringements Act 2006 and
the penalty for that offence is the prescribed
penalty in respect of that offence.
(9) In addition to the details required under
section 13 of the Infringements Act 2006,
the details of the election to which the
alleged infringement relates must be
included in an infringement notice served
under subsection (7), including—
(a) the name of the Council; and
(b) the date of the election; and
(c) the name of the ward (if applicable).".
__________________
s. 30
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Part 4—Amendments to the Victorian Civil and Administrative Tribunal Act
1998
Local Government Legislation Amendment (Miscellaneous) Act 2012
No. 63 of 2012
22
Authorised by the Chief Parliamentary Counsel
PART 4—AMENDMENTS TO THE VICTORIAN CIVIL AND
ADMINISTRATIVE TRIBUNAL ACT 1998
31 Constitution of Tribunal
In clause 46E of Schedule 1 to the Victorian Civil
and Administrative Tribunal Act 1998, after
"senior member" (wherever occurring) insert
"or presidential member".
32 Clause 46F of Schedule 1 substituted
For clause 46F of Schedule 1 to the Victorian
Civil and Administrative Tribunal Act 1998
substitute—
"46F Costs
(1) Despite section 109, the Council must bear
the costs of the proceedings if—
(a) the Council is a party to a proceeding
referred to VCAT under section
81J(1)(b) of the Local Government
Act 1989; or
(b) the Council applies to VCAT for
review under section 81Q(2) of the
Local Government Act 1989.
(2) The Council is not required to bear the costs
of the proceedings under subclause (1) if
VCAT otherwise orders.".
__________________
s. 31
See:
Act No.
53/1998.
Reprint No. 7
as at
1 January
2011
and
amending
Act Nos
11/2010,
16/2010,
74/2010,
6/2012,
20/2012,
21/2012 and
22/2012.
LawToday:
www.
legislation.
vic.gov.au
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Part 5—Repeal of Amending Act
Local Government Legislation Amendment (Miscellaneous) Act 2012
No. 63 of 2012
23
Authorised by the Chief Parliamentary Counsel
PART 5—REPEAL OF AMENDING ACT
33 Repeal of amending Act
This Act is repealed on 1 July 2014.
Note
The repeal of this Act does not affect the continuing operation of
the amendments made by it (see section 15(1) of the
Interpretation of Legislation Act 1984).
═══════════════
s. 33
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Local Government Legislation Amendment (Miscellaneous) Act 2012
No. 63 of 2012
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Authorised by the Chief Parliamentary Counsel
ENDNOTES
† Minister's second reading speech—
Legislative Assembly: 20 June 2012
Legislative Council: 16 August 2012
The long title for the Bill for this Act was "A Bill for an Act to amend the
Local Government Act 1989, the City of Melbourne Act 2001 and the
Victorian Civil and Administrative Tribunal Act 1998 and for other
purposes."
Endnotes
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