ADMINISTRATIVE PROCEDURES
(USE OF COMMON SEAL) LOCAL LAW
LOCAL LAW NO. 2
About this Local Law
The Local Government Act 1989 (“the Act”) bestows a number of functions and duties upon a
Council.
In order to carry help Council carry out those functions and to carry out those duties, the Act also
gives a Council the power to make local laws.
This Local Law is known as the Administrative Procedures (Use of Common Seal) Local Law.
Section 5 of the Act provides that the common seal of a Council must be used in accordance with the
local laws of Council. The purpose of this Local Law is to provide how the common seal of Council
may be used.
The objectives of this Local Law are set out in Clause 2.
This Local Law supplements other local laws Council has made or will make in relation to other
administrative matters, such as meeting procedures.
TABLE OF CONTENTS
PART 1: PRELIMINARY
TITLE ..........................................................................................................................................4
OBJECTIVE OF THIS LOCAL LAW ................................................................................................4
AUTHORISING PROVISION ........................................................................................................4
COMMENCEMENT AND REVOCATION........................ .............................................................5
SUNSET DATE ............................................................................................................................5
APPLICATION OF LOCAL LAW....................................................................................................5
PART 2: INTERPRETATION
MEANING OF WORDS ...............................................................................................................6
PART 3: USE OF COMMON SEAL
UNAUTHORISED USE OF COMMON SEAL .................................................................................7
WHEN MAY COMMON SEAL BE USED ......................................................................................7
WITNESSING USE OF THE COMMON SEAL ...............................................................................7
PART 4: DELEGATION
USE OF COMMON SEAL ............................................................................................................8
LIMITATIONS ON THE EXERCISE OF DELEGATED POWER .........................................................8
NO SUB-DELEGATION................................................................................................................9
WITNESSING OF COMMON SEAL ..............................................................................................9
FORM OF SEALING CLAUSE .......................................................................................................9
PART 5: ENFORCEMENT
OFFENCES ................................................................................................................................11
GENERAL PENALTY ..................................................................................................................11
Monash City Council
ADMINISTRATIVE PROCEDURES
(USE OF COMMON SEAL) LOCAL LAW
Local Law No. 2
PART 1: PRELIMINARY
1. TITLE
1.1
This Local Law may be cited as the City of Monash Administrative Procedures (Use of
Common Seal) Local Law No. 2.
2. PURPOSES OF THIS LOCAL LAW
The purposes of this Local Law are to:-
2.1
provide how the common seal of Council may be used;
2.2
provide who may authorise the use of the common seal;
2.3
delegate the power to authorise the use of the common seal;
2.4
prescribe who may witness the affixing of the common seal;
2.5
provide for the more efficient transaction of Council business;
2.6
provide for the peace, order and good government of the municipal district of Council;
2.7
provide for the administration of Council powers and functions; and
2.8
repeal the earlier local law of the same name.
3. AUTHORISING PROVISION
3.1
This Local Law is made under Section 111 (1) of the Act.
4. COMMENCEMENT AND REVOCATION
4.1
In this clause, ‘commencement date’ means the day after the making of the local law.
4.2
This local law will come into operation on the commencement date.
4.3
On the commencement date, the City of Monash Administrative Procedures (Use of the
Common Seal) Local Law No. 2, made on 6 June 2006, is revoked.
5. SUNSET DATE
5.1
Unless sooner revoked, this Local Law ceases to operate on 6 June 2026
6. APPLICATION OF LOCAL LAW
6.1
This Local Law applies to the whole of the municipal district of the Council.
PART 2: INTERPRETATION
7. MEANING OF WORDS
7.1
Unless the contrary intention appears in this Local Law, the following definitions apply:-
“Act”
means the Local Government Act 1989.
“Chief Executive
Officer
means the Chief Executive Officer of the Council
and includes any person for the time being acting in the
position of Chief Executive Officer.
“clause”
means a clause of this Local Law.
“common seal”
means the common seal of Council.
“Council”
means the Monash City Council, also referred to as City of
Monash.
“document”
means an instrument and includes a contract, agreement,
deed, licence, lease and transfer of land.
“penalty unity”
has the same meaning as in section 110 of the Sentencing
Act 1991.
“senior officer”
has the same meaning as in the Act.
PART 3: USE OF COMMON SEAL
8. UNAUTHORISED USE OF COMMON SEAL
8.1
A person must not use the common seal except in accordance with this Local Law
8.2
A person must not use any device resembling the common seal.
9. WHEN THE COMMON SEAL MAY BE USED
9.1 The common seal may be used only:
9.1.1
on the authority of Council; and
9.1.2
in accordance with this Local Law
10. WITNESSING USE OF THE COMMON SEAL
10.1 Where Council authorises the use of the common seal, the affixing of the common seal to any
document must be witnessed by not less than 2 people comprised of:
10.1.1
Councillors; or
10.1.2.
the Chief Executive Officer;
10.1.2
a senior officer occupying the position of Chief Financial Officer, , Director
Corporate Services or Executive Manager Corporate Administration and
Customer Service;
10.1.4
or any combination of persons referred to in sub-clauses 10.1.1,
10.1.2, or 10.1.3 except that not more than 1 of the persons described
in sub-clause 10.1.3 may witness the affixing of the common seal to a
document.
PART 4: DELEGATION
11. USE OF COMMON SEAL
11.1.
Subject to Clause 12, Council delegates to the Chief Executive Officer the power to
authorise the use of the common seal on behalf of Council.
11.2.
Where the Chief Executive Officer authorises the common seal to be affixed to any
document, the Chief Executive Officer must:
11.2.1 cause the sealed document to be allocated a seal register number; and
11.2.2. ensure that a description of the document sealed is entered into the seal
register.
11.3.
The power delegated under Clause 11.1 may be exercised only in accordance with Clause
11.2 and is subject to the limitations set out in Clause 12.
12. LIMITATIONS ON THE EXERCISE OF DELEGATED POWER
12.1.
Before authorising the use of the common seal on behalf of Council, the Chief Executive
Officer must:
12.1.1. consider a report relating to the subject matter of the document proposed
to be sealed; and
12.1.2. be satisfied that the member of Council’s staff who has the function of
approving the subject matter of the document proposed to be sealed, has
recommended and approved that the document be executed by or on behalf
of Council; and
12.1.3. satisfy himself or herself that any provisions of the Act required to be
complied with in relation to the subject matter of the document, have
been complied with.
12.2.
The Chief Executive Officer must not authorise the use of the common seal:
12.2.1. in relation to a document which is a contract or agreement:
12.2.1.1.
And the amount payable by council under that contract
or agreement is greater than the limit of the Chief
Executive Officer’s delegation;
12.2.1.2.
and the contract or agreement is based on a schedule of
rates and the amounts payable by Council is likely to
exceed the limit of the Chief Executive Officer’s
delegation; or
12.2.1.3.
which involves expenditure not contained in a budget
approved by Council;
or
12.2.2.
where the document proposed to be sealed:
12.2.2.1.
relates to the employment of the Chief Executive
Officer;
12.2.2.2.
is of a kind prescribed by a resolution of Council as one
which may not be executed except by the express
authority of Council.
13. NO SUB-DELEGATION
13.1
The Chief Executive Officer must not delegate or purport to delegate the function conferred
by Clause 11.1.
14. WITNESSING USE OF COMMON SEAL
14.1
Where the Chief Executive Officer authorises the use of the common seal, on behalf of
Council, the affixing of the common seal to any document must be witnessed by not less
than 2 people comprised of:-
14.1.1 Councillors; or
14.1.2 the Chief Executive Officer;
14.1.3 a senior officer occupying the position of:
Chief Financial Officer,
Director Corporate Services or
Executive Manager Corporate Administration and Customer Service;
14.1.4 or any combination of persons referred to in sub-clauses 14.1.1, 14.1.2 or
14.1.3 except that not more than 1 of the persons described in sub-clause
14.3 may witness the affixing of the common seal to a document.
15. FORM OF SEALING CLAUSE
15.1
Where the common seal is affixed to a document on the authority of the Council the
sealing clause must contain the words to the following effect:-
THE COMMON SEAL OF
)
MONASH CITY COUNCIL
)
was hereunto affixed this
)
.................................. day of
)
...................................20
)
in the presence of:
)
..............................................
..............................................
15.2
Where the common seal is affixed to a document on the authority of the Chief Executive
Officer on behalf of Council, the sealing clause must contain the words to the following
effect:-
The COMMON SEAL OF MONASH CITY COUNCIL
)
was affixed on behalf of Council by authority of the
)
Chief Executive Officer on the
)
..................... day of ............................ 20
)
in exercise of the power delegated under the
)
Administrative Procedures (Use of Common Seal)
)
Local Law in the presence of:
)
..............................................
..............................................
PART 5: ENFORCEMENT
16. OFFENCES
16.1
Where any provision of this Local Law requires that something may not be done at all, any
person who does that act is guilty of an offence.
17. GENERAL PENALTY
17.1
Any person who is guilty of an offence against this local law for which a specific penalty is
not stated or prescribed is liable to a penalty not exceeding 20 penalty units and in the case
of a continuing offence is liable to a further penalty not exceeding 2 penalty units for each
day after conviction for an offence during which the contravention continues.
THE COMMON SEAL OF
)
MONASH CITY COUNCIL
)
were hereunto affixed this
)
.................................. day of
)
...................................20
)
in the presence of:
)
..............................................
.............................................
The Resolution for passing this Local Law was agreed to by the City of Monash on 27 January 2016 and
confirmed on
2016
LOCAL LAW COMMUNITY IMPACT STATEMENT
Proposed: Local Law: LOCAL LAW NO. 2 – ADMINISTRATIVE PROCEDURES (USE OF COMMON SEAL)
Council provides the following information to the community in respect of the proposed Local Law
No. 2 - Administrative Procedures (Use of Common Seal).
PART A – General comments
Background
The current Local Law No.2 sunsets on 6 June 2016.
The Council considers it necessary and appropriate to ensure that it has the necessary administrative
processes in place to govern the use of the Council Common Seal.
Objectives
The objectives of the proposed Local Law are set out in the proposed Local Law No.2 Administrative
Procedures (Use of Common Seal).
PART B – Comments on proposed Local Law
Measures of success of the
proposed Local Law
All documents requiring the Council’s Common Seal are sealed in
accordance with the requirements and delegations set by the Council.
Existing legislation which might
be used instead
There is no existing legislation that could be used instead of the
proposed local law.
State legislation more appropriate
Council holds the view that the issues identified in relation to the
proposed Local Law is a Council responsibility and that, accordingly,
the provisions of the proposed Local Law are an appropriate solution.
Overlap of existing legislation
Overlap of planning scheme
Risk assessment
Not applicable. It is not considered that the proposed local law
overlaps existing legislation.
Council does not believe that any provision of the proposed Local Law
overlaps, duplicates or creates any inconsistency with any existing
planning scheme.
Council does not believe there are any risks associated with the
proposed Local Law.
In reaching this view, Council considered the absence of such a local
law and the lack of controls the Council would have over the use of
the Common Seal, as a consequence, as well as the requirements of
the Local Government Act 1989.
Legislative approach adopted
Penalties
Performance standards or
prescriptive
Comparison with neighbouring and
like councils
Assessment against Charter of Human
Rights, National Competition Policy
Principles (NCPP), etc
Submissions (under S.223 of the Local
Government Act 1989)
The proposed local law is not considered to represent any risks to the
Council.
Council believes in the minimum imposition on the community with
its Local Laws. The proposed Local Law reflects this approach.
Penalties are proposed for particular breaches of the provisions of the
Local Law. These are considered appropriate, at the current level.
As the purpose of the local law is to govern the use of the Council’s
Common Seal, it is framed in prescriptive terms.
The neighbouring cities of Boroondara, Knox, Greater Dandenong and
Whitehorse incorporate the management of their Common Seal with
their Council meeting procedures, in one local law.
HUMAN RIGHTS CHARTER
An assessment of the proposed local law will be made against the
Charter of Human Rights and Responsibilities Act 2006.
NATIONAL COMPETITION POLICY PRINCIPLES
An assessment will be made against National Competition Policy
Principles to determine whether the proposed new Local Law No.2
restricts trade or impacts on commercial trade. The assessment will
be made, once the Council resolves to ‘make’ the local law, ie the first
of the two-part process prior to formal adoption of the local law.
To be considered by a Committee of Council on 22 March 2016
Part C – Comments on specific parts or Provisions of the Proposed Local Law
Description of the problem
The proposed new local law seeks to :
1. Meet the requirements of Part 2 of the Local Government Act
1989, ie a Council having a Common Seal and its use being used
in accordance with the local laws of the Council.
2. Govern the processes for the use of the Common Seal.
How the proposed Local Law
provisions help achieve Council’s
objectives
The proposed local law will help to achieve the Council’s objectives by
providing for the appropriate management and control of the use of
the Council’s Common Seal.