Another important issue for Local Governments affected by an amalgamation is to what extent delegations and authorisations will have been affected and what needs to be done.
From the date of Commencement of a new or altered Local Government any pre-existing delegations and/or authorisations may no longer apply.
The term Commencement in this paper means the day of commencement of any amalgamation order made by the Governor on the recommendation of the Minister pursuant to section 2.1 of the Local Government Act 1995 (WA) (the Act).
Whether or not a delegation or authority will remain in force after Commencement may well depend upon the type of amalgamation that has been ordered under section 2.1 of the Act.
Where a Local Government takes over the whole of the area of abolished District
Pursuant to regulation 6(4)(h) of the Local Government Act (Constitution) Regulations 1998 (WA) (Constitution Regulations).
“A person who before commencement, holds an appointment made under a written law by Local Government A for the purposes of enforcing or administering that written law becomes a person appointed by Local Government B for those purposes.”
This will be the case where an existing Local Government remains in existence but takes over the whole of the area of an abolished Local Government by boundary change. Alternatively, it will also be the case where a new District is created that takes over the whole of the area of an abolished District.
Consequently, by operation of the Constitution Regulations, any person that held a delegation or authority made by the abolished Local Government will continue to hold that delegation or authority as if it had been made by the Local Government taking over their area, provided that, the Local Government does take over the whole of that area.
Where a Local Government takes over part only of the area of abolished District
The status quo of a person’s delegation or authorisation is, however, not maintained where only a part of the abolished District is taken over by another, or new, Local Government. The Constitution Regulations are silent in this case and thus any delegations or authorisations may well come to an end on Commencement.
Where a Local Government takes over area from a Local Government that is not abolished
The situation here is that any delegation or authority will continue by force of its original enactment if the Local Government in question continues to exist after Commencement.
It will be necessary for any new Local Government to review its delegations and authorisations and it is anticipated Local Governments facing amalgamation will make as much preparation as they can prior to Commencement.
A review will likely start with the Delegations Register which all Local Governments must keep under section 5.46 of the Act.
The review will need to anticipate staff movements to identify where new delegations and authorisations will need to be made. Such a review should include the following core delegations and authorisations:
- powers delegated to the CEO under section 5.42 of the Act;
- powers delegated by the CEO to other employees under section 5.44 of the Act;
- powers delegated to committees of council members and/or council members and employees under section 5.17 of the Act;
- authorised appointments made under section 9.10 of the Act; and
- delegations and authorisations made under other legislation such as the Dog Act 1976, Bush Fires Act 1954, Health Act 1911 and Building Act 2011.
- Note, there are many other individual enactments that allow powers to be delegated by Local Government which will all need to be considered.
If you have any questions about Delegations, Authorisations and Amalgamations or the process to be followed, please contact Brenton Oakley or Anne Wood on (08) 9321 3755.
The information published on this website is of a general nature and should not be construed as legal advice. Whilst we aim to provide timely, relevant and accurate information, the law may change and circumstances may differ. You should not therefore act in reliance on it without first obtaining specific legal advice.