Queensland’s de-amalgamating councils: Making the most of a fresh start - Constitutional & Administrative Law

Four local councils in Queensland are separating from their regional councils following a March referendum in which their communities overwhelmingly voted for de-amalgamation:

Noosa Shire Council from the Sunshine Coast Regional Council;
Livingstone Shire Council from the Rockhampton Regional Council;
Mareeba Shire Council from the Tablelands Regional Council; and
Douglas Shire Council from the Cairns Regional Council.

The new councils will start on 1^st January 2014 and for each, their first meeting will be crucial to getting off to a good start. Among the smiles and welcome messages should be serious consideration of several administration and governance matters.

THE FIRST MEETING OF A NEW COUNCIL

Under the Local Government Act 2009 (LGA), the new councillors will need to hold their first council meeting within 14 days of their election.

The first meeting is an opportunity to set the tone for the local government area as well as address administration and governance requirements.

While some of these matters are set out in the LGA and LGR (Local Government Regulation), and some in the De-amalgamation Regulation, others are beyond the statutory requirements and councillors must take care they are not overlooked.

DELEGATIONS

Local government can only make decisions by resolution or by delegation. Making decisions by council resolution can be time-consuming and any local government that tried to make all decisions this way would soon be crippled by bureaucracy and doomed to inaction.

Thus, existing local governments manage the process by delegating day-to-day decision-making to the Chief Executive and employees of the local government as it sees fit (and subject to some statutory restrictions).

The Transfer Methodology ¹ provides for existing delegations and authorisations of the continuing council to apply to the new local government until varied or revoked. This may create issues if the delegations are by name rather than position, and even then if the organisational structure of the new local government varies from the continuing local government, the 'continuance' of the delegations would not resolve matters.

A potentially unintended outcome is that an enforcement officer that remains employed by a continuing council could exercise their delegation in the new local government area.

The Transition Manager's powers under the regulation will continue as the acting Chief Executive of the new local government without the need for express delegation, but those powers are limited to the powers necessary to act as Transition Manager, which are more limited than powers normally delegated to a Chief Executive. The Chief Executive's powers would be subject to the same concerns identified above.

A 'rationalisation' as contemplated by the Transfer Methodology may not be adequate to ensure all relevant delegations are made. To avoid bureaucratic gridlock, delegations authorising the Chief Executive and employees to exercise the new local government's powers should be high on the agenda for the first meeting.

The preparation of new draft delegations for adoption is a matter that the Transfer Managers will no doubt already be undertaking. A comprehensive delegations policy and register also means the new local governments will avoid issues occasionally encountered by existing local governments where a piecemeal approach has led to a delegation being overlooked, and decision being overturned for a want of authority. ²

FINANCIAL PLANNING

A local government has particular requirements in relation to financial policies and financial planning.

The Transfer Methodology provides that all policies of the continuing local government will transfer to the new local government. This potentially extends to all financial policies but that is, again, far from clear.

In particular, the Transfer Methodology may not provide for the transition of the 5-year corporate plan and long term asset management plan, and a direct transfer of policies that relate to local government spending ³ may not be appropriate in the changed circumstances of the new local government.

The only express reference to financial considerations in the Transfer Methodology ⁴ is the requirement for the Transition Manager to present a statement of position to the Council at its first meeting. It does not require the Transfer Manager to provide further advice or consideration of financial planning matters to the new local government.

While some financial matters (particularly the setting of rates) may properly be deferred to the budget period, the effect of transferring the continuing local government's financial policies (and potentially financial planning) is a matter that should be considered by the Council at an early stage, as well as a process for dealing with those matters.

A new council could find their ability to operate stymied if they haven't properly considered financial policies and long term planning in its own context (rather than as a component part of a larger local government).

CONCLUSION

While the Transition Managers are no doubt already considering these issues, it is important that they are brought to the Council's attention at its first opportunity, as they underpin the day-to-day functioning of the local government. To overlook matters of administration at an early stage risks the new local government 'false-starting' in relation to its operational functions when it commences on 1 January 2014.

This is the first of a five part series on matters relevant to Queensland's de-amalgamated councils and the new local governments that will emerge from the process. The ideas are also equally applicable to good rule and local government of existing local government areas.

Footnotes

¹Department of Local Government, Community Recovery and Resilience De-amalgamation Transition Methodology - Version 1 (May 2013).

²See for example Cuttler v. Commissioner of the Queensland Police Service [2010] QSC 286.

³For example the community grants policy, the entertainment and hospitality policy, and advertising spending policy.

⁴Department of Local Government, Community Recovery and Resilience De-amalgamation Transition Methodology - Version 1 (May 2013).

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.


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