Working with the legislation—Local
Government Act 2009
02: Understanding the Act
What does the 2009 Act say?
The Act (Section 4) says that:
To ensure the system of local government is accountable, effective, efficient and sustainable,
Parliament requires:
(a) anyone who is performing a responsibility under this Act to do so in accordance with the local
government principles
(b) any action that is taken under this Act to be taken in a way that:
(i) is consistent with the local government principles
(ii) provides results that are consistent with the local government principles, in as far as the
results are within the control of the person who is taking the action.
What details do the Regulations give?
The requirements in Section 4 apply to the three local government Regulations authorised by the
Act. In other words, references to the Act in Section 4 can be taken to include the Regulations. The
three Regulations are subordinate legislation.
Key points for councils
The basis for local government’s legal authority is administrative law (as opposed to other legal
authority e.g. criminal law).
Administrative law is the legal principle governing the relationship between the government and the
governed. Local governments exist to govern for the benefit of the community in their local
government area.
Basic rules
The Act has been drafted in accordance with the Acts Interpretation Act 1954 (AIA). The purpose of the
AIA is to assist the interpretation of Queensland Acts of Parliament. Acts can be shorter because the
AIA enables the use of consistent, similar provisions in every statute (e.g. definitions).
Under the AIA, however, an Act can expressly override a provision in the AIA. For example, an Act
may say, “For this section the word ‘land’ refers to …” and then proceed to stipulate a definition
contrary to that appearing in Section 36 of the AIA.
The Act contains a number of provisions which empower a decision-maker to make a decision but
there is no corresponding power provided to repeal the decision. This is because the AIA states that
if an Act authorises or requires the making of a decision:

the power includes power to amend or repeal the decision

the power to amend or repeal the decision is done in the same way, and subject to the same
conditions, as the power to make the decision.
The Act often uses the words ‘may’ and ‘must’ which indicate whether or not a decision-maker has
discretion in relation to the matter under consideration. Under the AIA:

the word ‘may’, or a similar word or expression, used in relation to a power indicates that the
power may be exercised or not exercised, at the decision makers discretion

the word ‘must’, or a similar word or expression, used in relation to a power indicates that the
power is required to be exercised.
Where the meaning of a particular word in the Act is unclear and it is not defined in either the Act or
the AIA, it should be interpreted that Parliament intended it to have its ordinary meaning. The
ordinary meaning may be taken from law dictionaries or standard dictionaries such as the Oxford
English Dictionary or the Macquarie Dictionary.
Reading the Act
The following tips are a general guide for reading the Act:

read the words in the Act. Do not ‘read words into’ the Act

look for definitions in the start of parts, divisions and sections and in the schedule

pay attention to sentence structure and grammar (e.g. the use of and/or)

the legislative hierarchy is relevant (e.g. the Act is more important than subordinate legislation
such as the three Regulations)

subordinate legislation does not generally interpret the Act, but it may assist with interpreting
the Act

policy and guidelines cannot override legislation. The meaning of policy or guidelines must be
interpreted in such a way that they do not conflict with the legislation. If policy or guidelines
conflict with legislation they are invalid and should not be followed.
Interpreting the Act
Essentially, the interpretation of the Act requires:

reading the actual words of the Act

considering the broader context around the particular section

giving every word meaning

not inventing words that are not there

paying attention to sentence structure and punctuation.
Section 14A of the AIA states that the interpretation of any provision in the Act that will best achieve
the purpose of the Act is preferred to any other interpretation. The Act must be read as a whole and
this manner of interpretation is to prevail over any other interpretation.
The Local Government Act 2009 has the purpose of:

providing a legal framework for an effective, efficient, sustainable and accountable system of
local government

recognising a jurisdiction of local government sufficient to allow a local government to take
responsibility for the good rule and government of its area.
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The Act must be read and understood in accordance with this purpose.
Given that the system of local government is established by the state under the Constitution of
Queensland 2001, the purpose of the Act has been constructed carefully to ensure that the state to
local government relationship is more clearly defined to reflect the specific jurisdiction of local
government.
Fundamental legislative principles
The Act takes account of what are known as ‘fundamental legislative principles’ under the Legislative
Standards Act 1992. These principles for legislation underlie parliamentary democracies based on
the rule of law. The principles include that legislation must have sufficient regard to the rights and
liberties of individuals and the institution of Parliament. For example, the legislation:

makes rights and liberties, or obligations, dependent on administrative power only if the power
is sufficiently defined and subject to appropriate review

is consistent with principles of natural justice

allows the delegation of administrative power only in appropriate cases and to appropriate
persons

does not reverse the onus of proof in criminal proceedings without adequate justification

confers power to enter premises, and search for or seize documents or other property, only with
a warrant issued by a judge or other judicial officer

provides appropriate protection against self-incrimination

does not adversely affect rights and liberties, or impose obligations, retrospectively

does not confer immunity from proceeding or prosecution without adequate justification

provides for the compulsory acquisition of property only with fair compensation

has sufficient regard to Aboriginal tradition and Island custom

is unambiguous and drafted in a clear and precise way.
Decision-making and the Act
Decision-making involves balancing competing objectives and interests. Particularly in the field of
public administration, decisions not only have to be fair but the processes followed in making them
have to be seen to be fair. This applies to decision-making under local government legislation as
much to decision-making under other Acts of Parliament.
Under administrative law, the following considerations are necessary to ensure defensible public
sector decision-making.

Will anyone be adversely affected by the decision?

Is there legal authority for the decision?

Who has legal authority to make the decision?

Why is the decision being made?

Has the process included the principles of natural justice?

Will supporting documentation identify the individual merits of the decision?

Is the decision based on facts or generalisations?

What is the critical or turning factor in the decision?

Has the decision been made expeditiously?

Is it appropriate to review the decision?
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Where can I get more help?
To prepare for the commencement of the Act, council practitioners should firstly read and become
familiar with the Act which can be found at:
www.legislation.qld.gov.au/LEGISLTN/CURRENT/L/LocalGovA09.pdf
The explanatory notes can be found at:
www.legislation.qld.gov.au/Bills/53PDF/2009/LocalGovtB09Exp.pdf
Also useful for understanding the policy rationale for the Act is the minister’s second reading speech
which can be found at:
www.dip.qld.gov.au/resources/laws/cats-dogs/lg-bill-2nd-reading-speech.pdf
The Parliamentary debate on the Bill as recorded in Hansard can be found at:
www.parliament.qld.gov.au/view/legislativeAssembly/hansard/documents/2009.pdf/2009_06_04
_WEEKLY.pdf.
A series of these fact sheets are available on the Department of Infrastructure and Planning website
www.dip.qld.gov.au. Each provides advice on how to work with various aspects of the Local
Government Act 2009.
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