Local government in Australia
Local government is often called the third level of government in Australia. With the first level being the Federal government and the second level being the State government. The Parliamentary Education Office has a great explanation of the different roles of each level of government. However, the description as the third tier of government can be a little misleading.
In reality, local government in NSW is a creature of the State government. It comes to life through the Constitution Act 1902 and NSW legislation made by the NSW government – the Local Government Act 1993 (the Act).
Under the Act, local and county councils are:
a body politic of the State with perpetual succession and the legal capacity and powers of an individual, both in and outside the State.
They are ‘not a body corporate (including a corporation)’. Clear as mud, right?
What is a “body politic”?
In a general sense, a “body politic” is an artificial legal entity which has a separate legal personality. In practical terms, this means councils have the power to act, hold property, enter into legal contracts, sue and be sued in their own name, just as a natural person can.
To understand why a local council is a “body politic”, it is worth taking a moment to reflect on how this came about. Notably, the Act was amended in 2008 to change the legal status of councils from a body corporate to a body politic. This was due to changes in the industrial relations space at the time. And to make sure it was clear that local councils in NSW fell under the State industrial system. For some time, the peak body for councils, Local Government NSW, has been lobbying the State Government to change this back.
How is a local council created?
The process for creating a local council is set out in the Act. Essentially, there are several important steps.
First, the Governor must proclaim and name the local government area. This must “be a single area of contiguous land”. There are currently 128 local councils across NSW. For the current list, go to the Office of Local Government’s website.
A local council is then constituted for that area under the Act. A council’s name is based on the name of the area. The name depends on whether the area has been proclaimed a city by the Governor.
Finally, through a democratic process, the governing body is elected by residents in the local government area who are aged over 18 years old. This normally happens every four years.
Who can change a local government area?
Notably, the Governor has the power to alter the boundaries of a local government area and to amalgamate councils. However, this can only be done on a proposal by the Minister, the council itself or residents. The Local Government Boundary Commission also has a role to play in this decision too.
In recent times, the forced amalgamations of councils has attracted some controversy in NSW. In some areas, local communities continue to campaign to demerge amalgamated councils.
In summary, local councils in NSW are created under the Local Government Act 1993 as a body politic. They are, in effect, a creature of State Government. Whilst councils have broad powers under the Act, most of what councils do is also regulated by other legislation and policy directions set at a State or Federal level. In this sense, local government is not an autonomous third tier of government.